Group Settlements

April 17, 2010

Another controversial issue concerns a law firm’s handling of an individual case among a large group of cases handled by the same law firm. Although aggregate litigation and settlements can be beneficial to all claimants, it is a matter of relative degree to which the aggregate settlements are utilized. For example, the Deaton Law Firm handles dozens of mesothelioma cases on an individual basis. Larger law firms handle hundreds and sometimes even thousands of claimants on an aggregate basis. Some of these larger law firms have come under severe scrutiny for grouping together too many cases, some with very dissimilar exposures and injuries, to reach an inventory of settlements.

Under this global model, it is impossible to keep each and every client informed of both the global settlements and the individual settlements. The Deaton Law Firm has avoided this type of controversy because we do not represent hundreds or thousands of clients. Most of the settlements negotiated by the Deaton Law Firm involve a settlement between one plaintiff and a particular defendant. Since the majority of settlements in an asbestos lawsuit involve claims against numerous defendants, there will undoubtedly be either a trial or a settlement against numerous parties. Obviously, since asbestos was incorporated in thousands of mass produced and distributed products, some of the defendant companies are routinely sued involving exposure by multiple plaintiffs to the same mass produced product.

It is important that a plaintiffs’ firm has more than one case against that same defendant(s). This allows the law firm to maintain some leverage against the same defendant(s). Again, however, it is a matter of degree. If the Deaton Law Firm negotiates a settlement that involves different plaintiffs against the same defendant, it is at a scale of which each plaintiff can be made aware of this group settlement and elect to either participate or not participate in such a settlement.

Clearly, if a group settlement against a defendant involves a handful of cases, then obtaining informed consent of your client is not an issue. If, however, the law firm has negotiated a group settlement against a defendant involving hundreds of cases, obtaining informed consent is problematic, if not impossible. The Deaton Law Firm has been able to avoid the controversy and criticism that the larger firms have fallen under simply by adhering to the fundamental tenant of “quality before quantity.”


Advertising, Referring Firms and Bankruptcies

April 11, 2010

Another controversy surrounds referring law firms versus representing law firms. The internet, T.V., and publication advertising for mesothelioma cases is extremely competitive. It is safe to say that in the last three years, mesothelioma is probably the most advertised litigation in the country today, and remains one of the most expensive words on the internet per click.

Most of the advertising law firms are what is called a referring firm. Some classify these law firms and attorneys as “brokers.” A referring firm or broker is a law firm or individual lawyer who advertises across the different medias. They sign a client and then refer that client to the lawyers who actually handle the lawsuit and day to day litigation of that lawsuit.

Firms that advertise and then refer cases out to other attorneys have been criticized by academia and others, and it has become more significant in the asbestos arena than in the other areas of litigation. The reason that it is more significant in the context of asbestos litigation is because of the increasing trend of companies to either filing bankruptcy or creating bankruptcy trusts. When a company files bankruptcy or creates a bankruptcy trust, that company, pursuant to federal law, cannot be sued in either federal or state court ever again.

In short, the creation of the bankruptcy trusts bar a lawsuit against that company forever. Instead of filing a lawsuit against that company, the asbestos victim through his or her attorney must file a claim against the bankrupt trust. The claims against the bankruptcy trust are outside of the tort system but still remain somewhat of an adversarial process. A lawyer representing an asbestos victim still must file a claim within a certain period of time and must also offer some form of evidence to prove exposure to a product made by the company that established the bankruptcy trust. Although there have been over 70 companies to file for bankruptcy protection in recent years, there are only currently 20-30 bankruptcy trusts that are either already established and paying claims or expected to be established in the near future. Although these trusts exist, an asbestos victim can also file a lawsuit against the viable entities that have not filed for bankruptcy protection. In short, a law firm has two avenues of recovery that the lawyer must pursue in an effort to compensate his or her client.

However, the law, in the vast majority of states across this country, does not allow for what’s called a double recovery for the same injury. In other words, the bankruptcy claims become very relevant at the trial against the viable companies that were sued. The companies at trial will use the claims made by the plaintiff against the bankruptcy trust in an effort to persuade the jury that that bankrupt companies were liable and responsible for the asbestos disease. Also, the amount of recovery received by the bankrupt trust will often be used to reduce a settlement or verdict against any viable companies. For example, if a person receives $300,000 from claims made against bankruptcy trusts and then later gets a verdict against other viable companies for $400,000 total, the $300,000 from the bankrupt trust must be subtracted from the verdict value. Therefore, the verdict in that case would be reduced from $400,000 to $100,000.

The interplay between the claims against the bankruptcy trusts and the law suit are very critical. What is most controversial is that these brokers or referring firms oftentimes will retain responsibility for filing the bankruptcy claims but refer the tort lawsuit to a law firm such as the Deaton Law Firm, which actually prosecutes the lawsuit. Anything that the referring firm does related to the bankruptcy claims will absolutely affect the law suit.

It is critical that both law firms coordinate with each other so that the plaintiffs’ claims and theories are consistent with the two different avenues of recovery. As one can see, when you have two firms handling two different avenues of recovery but related to the same injury, there is the potential for abuse or inconsistency. In recent history, this potential for inconsistency and/or abuse has been discussed in articles in the Wall Street Journal, New York Times, and Forbes. One large firm, which was responsible for handling the claims, made allegations or statements that were entirely inconsistent with claims made by the same plaintiff within the tort lawsuit. These two large national firms proceeded in their individual representations of the same plaintiff, independent of each other and without coordination. In fact, one of these firms – because of what was perceived by a trial judge as abuse and/or fraud – was barred from representing any plaintiffs in that particular state forever.

This is yet another example in which a law firm becomes too big, with too many claims, and clients get treated similarly to cattle. It is important to note that the individual plaintiff in that scenario was not acting with fraud or intentional misconduct but was simply relying on the advice and alleged expertise of each of these large firms. The more prudent approach is that the law firm handling the case should be responsible to take the lead in both prosecution of the lawsuit and the processing of bankruptcy claims. Yet, most of these larger advertising firms insist on processing the bankrupt claims because it can be done so outside of the tort system. It also allows that advertising firm to generate a fee that does not have to be shared with outside counsel. The Deaton Law Firm avoids such controversy by handling any and all claims associated with the asbestos disease.

Asbestos Companies Conspiracy

April 4, 2010

Some of the first recorded reports related to the hazards of asbestos go as far back as the late 1800s. One prominent example is the Lady Inspectors of England report to the English Parliament regarding “the evil affects of asbestos” in the surrounding textile mills. Many U.S. case reports emerged in the early 1900s regarding the documented dangers of asbestos. In fact, in 1927 a new disease was coined within the medical community named from the very poison that caused it. That disease was called asbestosis.

Knowledge of this disease was widely published within the scientific and medical literature, as well as various trade organizations. In 1930, an article by Merryweather and Price made it clear that asbestos, not only in its raw form but also in the form of finished products (such as brakes, gaskets, joint compound, roofing products, etc), posed a significant health risk to anyone within breathing range of these asbestos products. During the 1930s, 1940s, and 1950s, thousands of articles were published throughout the world, discussing the fatal disease of asbestosis and later, mesothelioma, and the dangers of working with or around asbestos-containing products. The reports made it clear that workers should be warned of these health hazards because asbestos does not irritate or affect the worker/bystander; and the disease does not manifest itself until decades later.

Throughout the many years of litigation, plaintiffs’ attorneys have uncovered thousands of corporate documents discussing the known hazards of asbestos. These documents clearly demonstrate that the companies intentionally took advantage of the latency period associated with the development of asbestos disease. In other words, the companies believed that since on average it would take 30-40 years before an individual was diagnosed with an asbestos disease, specifically mesothelioma, and that on average a mesothelioma victim would have less than 18 months to live, the companies could evade responsibility by running the clock. Moreover, these documents also demonstrate that the companies believed that it would be cheaper or more cost effective to pay those individuals than to lose profits by using alternatives to asbestos within their products.

Litigation against these companies helped facilitate not only corporate change but also governmental intervention. Many asbestos containing products were banned by the federal government in the late 1970s. This governmental ban came about in no small part due to the courageous victims of asbestos disease, who invoked their constitutional right to have their case heard by a jury of their peers. Finally, one could make many parallels between the asbestos litigation against the offending companies and other environmental litigation, such as toxic waste dumps, and pollution of our country’s lakes and rivers, water contamination, etc. Without the resulting litigation, can it be credibly stated that these companies would have instituted change due to their own corporate or moral conscience?

Asbestos Companies’ Protection Through Bankruptcy Trusts

March 28, 2010

Asbestos companies have become quite clever at avoiding responsibility and shielding themselves from liability through mergers, which, in effect, hide responsible entities. They also protect their assets from legal claims by setting up bankruptcy trusts.

When those companies declare bankruptcy, they do not actually go out of business; they simply restructure their debt and liability by putting that liability into a bankruptcy trust. In fact, since the year 2000, over 70 asbestos companies have filed for bankruptcy protection against asbestos-related lawsuits. Once these companies receive that bankruptcy protection, they are required to pay only pennies on the dollar, such as a meager 10% of the actual value of the claim.

The end result of such machinations is that fewer viable companies exist that can provide recovery, and less money is available with which to pay legitimate claims. The mesothelioma case value itself, however, does not decrease. In addition, studies show that the diagnoses of asbestos-related diseases will only increase over the next decade.

The Deaton Law Firm has addressed these trends by becoming even more aggressive in locating and targeting culpable companies. We must work harder and dedicate more time and effort in research and investigation in order to reach the same settlement values of past claims. It is therefore very important that mesothelioma victims are prudent and selective in determining which law firm business model (quantity versus quality) better suits their individual needs in light of this new trend in the litigation.

State Caps On Product Liability Lawsuits

March 28, 2010

State legislative efforts to impose a cap on damages in product liability lawsuits are increasing. Asbestos victims must have an attorney who knows which states to avoid in filing a lawsuit. Because asbestos exposure often happens at multiple times during a person’s lifetime and career and also occurred in several different locations, it is often possible to bring a lawsuit in several different jurisdictions.

The Deaton Law Firm, although much smaller than the national firms, represents clients from across the United States. We have the ability through our co-counsel network to file cases in these different jurisdictions. We accomplish this strategic advantage without increasing the attorneys fees associated with the legal representation. Many of the large national law firms file hundreds of cases in the jurisdiction in which the law firm already has a large volume of cases pending, without a detailed thought process of where the case should be filed in order to get the best results on an individual basis. It is these types of strategic and very significant decisions that must be made after careful investigation and review. Unlike these large firms, the Deaton Law Firms includes the clients in this decision-making process; our clients remain informed from the beginning to the end of their representation.

Legislative Efforts to Eliminate Asbestos Related Lawsuits

March 28, 2010

In 2005, the U.S. Congress voted on a bill that proposed banning all lawsuits throughout the country related to injuries caused from asbestos exposure. Although the plaintiffs’ firms were able to successfully defeat the last legislative effort to eliminate asbestos-related lawsuits, the trend of government intervention still continues.

Attorney John Deaton participated in defeating this attempted corporate bailout of asbestos companies. He brought mesothelioma victims to Washington, D.C. and met with U.S. senators and their legal advisers. He was astonished by the misunderstanding and misinformation throughout the U.S. Senate.

For example, a Rhode Island senator was informed by corporate lobbyists that veterans of the U.S. military were not allowed to file lawsuits or claims based on their exposure from their military service. He planned to vote to ban asbestos lawsuits and create a super trust fund so that veterans would have an opportunity to make a claim against the trust fund. Attorney Deaton pointed out to the senator that within that senator’s home state, 75% of all the asbestos lawsuits filed or pending actually involved exposure from military service (predominately asbestos exposure from the U.S. naval ships and shipyards).

Attorney Deaton informed this senior senator that although a veteran or service member cannot sue the U.S. government or the U.S. Navy, he is, in fact, allowed to sue the manufacturers who supplied the equipment and asbestos aboard the naval ships (turbines, boilers, pumps, gaskets, generators, air compressors, valves, steam lines, lagging, insulation, etc.). Once this U.S. senator understood the misinformation spread by lobbyists, he appropriately voted against the bill. It should be noted that this one senatorial vote was extremely significant, considering that the bailout legislation failed by a single vote.

Welcome To The Deaton Law Firm Blog

January 2, 2010

The Deaton Law Firm offers support to those suffering from Mesothelioma and asbestos related diseases. We provide compassionate assistance, guidance and hope to those diagnosed with Mesothelioma. We are dedicated to holding corporate entities accountable to you and your family for their negligent actions.

If you have been diagnosed with Mesothelioma, please contact the Deaton Law Firm for a free consultation regarding your legal rights. We will promptly arrange to visit you to discuss your legal, medical and financial rights and options. All consultations are FREE.

From our office in Providence, our Mesothelioma attorneys represent clients throughout the nation.

The Deaton Law Firm offers support to those suffering from Mesothelioma and asbestos related diseases. We provide compassionate assistance, guidance and hope to those diagnosed with Mesothelioma.

John E. Deaton

John Deaton graduated Magna Cum Laude from Eastern Michigan University in 1989 and continued to graduate Cum Laude from New England School of Law in 1995. At New England, John was an Editor of the New England Journal of Criminal and Civil Confinement. John received the American Jurisprudence Award for Clinical Evidence and was selected for the law school’s National Mock Trial Team, an honor awarded few.

During law school, John joined the United States Marine Corps and, in 1994, was commissioned a Second Lieutenant. John Deaton is a decorated veteran of the United States Marine Corps, where he served as a federal prosecutor and a criminal defense attorney…