Chris Placitella

Cohen, Placitella and Roth

Date: 4/20/2004

Duration: 53:49:00

Broadcast of asbestos litigation-related viewer questions directed to Kevin Berry moderated by Chris Placitella.

Video Transcript

Interviewer: This morning we are exploring the asbestos tragedy and what the status of asbestos litigation is at this point in time. We are proud to have with us Kevin Barry, one of the country's leading litigators in asbestos, representing more than 10,000 asbestos clients during the course of his career.

As always, what you'll hear is not specifically legal advice, but rather information to provide you, general information to give you guidance to ask the right questions and to explore your own rights with your own attorney. If you have any questions for specific legal advice, as always, you need to speak to an attorney directly about that.

During the course of today's broadcast you can ask us questions, which I will be able to direct to Kevin by simply typing in the box next to the interface that you see. The questions will come up on the screen next to me. I will then look at them and ask them to Kevin. This broadcast should take approximately one hour. Should you have any questions after the broadcast is over, you can review the broadcast at our on-demand site at www.will-tv.com.

Here we go. Good morning, Kevin. Thanks for being with us.

Kevin Barry: Good morning.

Interviewer: How are you?

Kevin: I'm fine.

Interviewer: We know that you've litigated asbestos cases for almost 20 years and probably been involved in some of the largest trials in the history of the country involving asbestos, including the Brooklyn Navy Yard case, and Power House litigation. Tell me a little bit about what is going on in asbestos litigation now in New York City where you're practicing.

Kevin: In New York City now there are still probably close to 25,000 cases that are currently pending. The judge who is in charge of the litigation in New York, Helen Friedman, is very active in scheduling trials and in moving the cases along as best she can do, keeping in mind the volume and just the number of cases that are currently out there.

Interviewer: We always get calls on the telephone, questions over our web site. We see people at various functions, and they want to know what exactly goes into an environmental case, what is comprised of an asbestos case.

What I'd like to do this morning is kind of take the building blocks from the very basics and build on it so everyone has a basic understanding of how these cases are prosecuted and what goes into evaluating a case. First, what is asbestos?

Kevin: Asbestos itself is actually a mineral. It's something that occurs naturally in nature. It is taken from nature through a mining process, much like any other minerals are taken out of their natural state.

Asbestos for many years was used and incorporated in a wide variety of products ranging from brake shoes and clutch facings and other auto parts through industrial uses such as pipe covering and other types of insulation that were used in the building of power plants and commercial buildings and even residences throughout the country.

Asbestos was used quite a bit from the 1930s through the mid-1970s, even into the 1980s in some cases. In the early 1970s the federal government got involved and regulated asbestos to an extent where its use began to decline, but it's still used even today in some parts of the world.

Interviewer: There's probably been no substance more maligned in recent years than asbestos. What makes asbestos so dangerous? Why are people so worried about it?

Kevin: Asbestos is dangerous because of its actual qualities. Unlike other types of minerals, asbestos occurs in a fibrous form, which makes it useful in the various products that I mentioned. It's virtually indestructible. It's resistant to heat, to fire, to acid, to things like that.

Those properties, which made it so useful in its industrial applications, are the properties that have made it so dangerous to humans. It has been shown and it's been known for quite some time dating back into the 1920s and 1930s in the medical literature that asbestos when ingested by humans causes disease.

It's ingested through the respiratory tract, through breathing in asbestos fibers and through the gastrointestinal tract. Basically, a person who inhales asbestos also swallows some and it can cause various types of diseases.

Interviewer: Let's talk about that for a second, because we hear all kinds of concern about asbestos and the diseases that can be caused. What diseases specifically is asbestos responsible for in our society?

Kevin: Asbestos basically causes two different types or classes of disease in humans. The first type or class of asbestos related diseases are the scarring lung diseases.

Asbestos is inhaled by a person who works with it or can be inhaled by a person who comes into contact with a person who is working with asbestos products. It lodges in the lungs and it lodges in the lining of the lungs, called the pleura. When it lodges in the lung and in the lining of the lung, the body itself reacts in overtime and causes a scarring mechanism to come into play.

A person who is exposed to asbestos over a number of years, particularly in a workplace type setting, will often come down with a scarring lung disease known as asbestosis. The scarring in the lining of the lung or the pleura is sometimes known as pleural asbestosis or asbestos induced pleural disease.

The other type or the other class of disease that asbestos is responsible for and has been shown to cause or be a causative factor in is a number of different cancers.

Interviewer: Before we get to cancers let's just focus a second on the asbestosis and the pleural disease. What is asbestosis? What does it do to you as a human being?

Kevin: Asbestosis, there are a couple of ways that asbestosis can affect a person's physiology. The primary way and the more serious way is that it causes the lungs to actually become scarred. Usually it starts from the bottom up, and they can become scarred to such an extent that basically the lungs cannot inflate properly. A person becomes short of breath. They become more easily winded. They become tired more easily, which then in turn causes a strain on the rest of the body.

Interviewer: How is someone diagnosed with asbestosis? Do you just walk around and say, "Geez, I think I have asbestosis" or are there some special techniques you need?

Kevin: There are a couple of different techniques or tests that are used by doctors, by experts to diagnose asbestos related disease. The first of those is a basic chest X-ray. Quite often a person notices that he or she is becoming short of breath. They go to the doctor and the doctor prescribes a chest X-ray.

The chest X-ray then shows particular types of scarring in the lung or in the lining of the lung when read by an expert and compared with other films that are used to show asbestos disease. A doctor, an expert, can diagnose asbestos related disease or changes compatible with that on a chest X-ray.

The next step is usually then the person undergoes or is prescribed a breathing test called a pulmonary function test. A pulmonary function test, if it shows certain findings which shows restrictive lung disease, meaning that the lung just can't expand as it should be able to.

A doctor takes those two things into consideration and generally can diagnose whether or not a person has an asbestos related scarring lung injury.

Interviewer: How much asbestos exposure does a human being have to have in order to get these kinds of injuries? We get calls all the time from somebody saying, "I have asbestos in my house" or "I see asbestos on the pipes in my workplace" and they're extremely concerned for their health. How much asbestos does it take in order to raise those kinds of real concerns?

Kevin: To raise those types of real concerns the typical cases that we've handled over the years -- and we've handled over 10,000 of these cases -- has been a person who has worked for at least a year or more, usually quite a bit more than that, 10, 15, 20 years or more, in an industrial environment where there is a lot of asbestos being used, a lot of asbestos dust that's being created by the cutting of asbestos pipe covering, by the mixing of asbestos-containing cement, and that kind of thing.

Typically, if a person goes down in their basement and they see there are pipes that are covered with asbestos, those aren't people that are in any kind of real danger with respect to these scarring lung diseases. Other types of diseases that we'll talk about in a minute can take less exposure than that to cause disease, but the great, great majority of these cases are shown in people that have a heavy, extended exposure to asbestos in a commercial or industrial environment.

Interviewer: The other common question that we get, and I know that you get, is that someone believe that they've had a heavy exposure, whether at work or through an accident, and they believe that, and they're fearful that, as it relates to asbestosis, or the scarring disease, they need to do something right away medically because somehow they are in grave danger at that moment of getting sick. Is that true?

Kevin: No, it's not, and that's because that brings into play something called a latency period. With all the asbestos-related diseases, there is something called the latency period, and what that basically means is that, from the time of exposure to asbestos dust until the time of actual manifestation of the injury, until a person actually has an injury that can be diagnosed, it normally takes anywhere from 10 to 15, to 20, to 25 years or even more than that before that happens, so there's a time between exposure and manifestation of injury that is quite long in asbestos cases.

Interviewer: What do you tell someone who believes they've had an intense exposure at work even now, because it's still in place in some places, they're ripping it out in their presence or they had it in the past, what you tell them when they've had this intense exposure but the latency period hasn't yet expired?

Kevin: Well, the first thing you do is to try to calm them down, because often people come into the office after having had that type of an exposure, and after having read some things just generally about asbestos and about the dangers of asbestos, and the first thing to do is to calm the client down, because there's nothing that's really immanent that's going to happen. The next thing that we do is to basically tell them that, in the years to come, every year or two, to get a chest x-ray taken, because that's the first place that something like that would show up, and generally not to make themselves crazy until there's some reason to, and typically there won't be, but that's one thing...

Interviewer: More likely than not, they won't get sick, especially from brief exposures.

Kevin: That's right, that's correct.

Interviewer: Now, for the person who has asbestosis, will they necessarily know it when they first get it, or can they walk around with it before they start to feel breathing problems?

Kevin: Well, studies have shown, actually, that a person can actually have scarring lung disease, scarring on a microscopic level in their lungs for years before it actually shows up on a chest x-ray. Often one-third of the lung's volume, one-third of the lung's capacity is compromised before there is any way to actually diagnose asbestos-related lung disease either by x-ray or by the pulmonary function test that we mentioned.

Interviewer: Well that's an interesting point, because you read these editorials and some of these articles in the newspapers, and they say, this person who's been clearly diagnosed with asbestosis, they're not really sick, they shouldn't get any money. But what you're saying is, even before their breathing tests show that they have asbestosis, they lose a third of their lung, is that what you're trying to say?

Kevin: That's correct.

Interviewer: So these arguments that these people aren't really sick, are they false?

Kevin: Well, they are false, and they're false because a person who has been exposed to asbestos, even from the outset the body begins to react to the asbestos exposure. The body reacts by trying to get rid of the asbestos, and there are various mechanisms that the body itself uses. When it can't get rid of the asbestos, that's the asbestos fibers that have lodged in the body, a scarring process begins. So, fairly shortly after a person is actually exposed to asbestos, but often well before they're diagnosed with disease, there's actually scarring that's taking place in the lungs.

Interviewer: In other words, it has to build up over time before you can even see it.

Kevin: That's right.

Interviewer: And then by the time a doctor can see it on a picture, you've lost up to a third of your lung capacity?

Kevin: That's correct.

Interviewer: That's a pretty frightening issue. What happens with the people who have asbestosis? I mean, does asbestosis impact their ability to be employed, to be insured, anything like that?

Kevin: Often it does. The great majority of the folks that we represent who have been affected by asbestos disease are people whose work involves some physical nature to it. These are utility workers, and they're construction workers, and steam fitters, and plumbers, and carpenters, people that need to be in good health, just physically, in order to perform their jobs. So, a person that has asbestos disease begins to lose that capacity to perform the work that they've been doing all their lives.

Interviewer: Now, what happens with that person? You often hear concerns that people are almost afraid to go to the doctor, because if they're diagnosed they're afraid that somehow they're going to lose their employment rights. Is that a legitimate concern?

Kevin: It's not really, because there are protections in the workplace for a person who becomes physically unable to perform their work. Often, though, people can make a disability claim, they're denied claims, and still they're unable to work. It's then that they often come to us, when they reach a point where they can't work, they come to us and they ask us what their legal rights are with respect to bringing a case for their asbestos disease.

Interviewer: And we're going to talk, I know this is called "Your Legal Rights", but I want to get the basics down, we'll talk about exactly what the legal options are in a little while. Now, before you mentioned the issue of cancer, and I know that that's primary on people's minds these days with the environments that we live in, and asbestos has been labeled as a primary carcinogen. What is it about asbestos and cancer, what kind of cancer does it cause, what kind of concerns should people have?

Kevin: Asbestos is particularly, again, where there's a particularly heavy exposure to asbestos over a number of years, asbestos can cause, and has been shown to cause or contribute to, a number of different cancers. The first are cancers of the gastrointestinal tract: colon cancer, stomach cancer, throat cancer, and esophageal cancer. The next group are the lung cancers; obviously a person who breathes in asbestos, ingests it, the asbestos becomes lodged in the lungs and studies have shown a substantial increase in the likelihood of getting lung cancer in people that have been exposed to asbestos. The third type of cancer, where the only known cause of this type of cancer is asbestos, is a cancer called mesothelioma.

Interviewer: Could you say that one again, please?

Kevin: Mesothelioma. Mesothelioma is a type of cancer, a fast-growing cancer that occurs in the lining of the lung, or in the lining of the abdominal cavity. Although advances have been made over the last several years in the treatment of mesothelioma, and there is some hope at this point, it has historically been a cancer that has a relatively short period from when the person is diagnosed until they unfortunately pass.

Interviewer: Do you need the same amount or intensity of exposure to get these cancers as you do asbestosis?

Kevin: With most of the cancers you do, you need, again, a fairly heavy, industrial type of exposure over a period of at least months, six months or so, up to 20, 25 years, 30 years we've seen in some of our clients.

With mesothelioma, unlike the other cancers, the actual amount of exposure that has been related to the cause of the disease is substantially less. So, in rare cases there are people that have been exposed only over a several-week period. Again, the great majority of cases are people that have been exposed over a fairly long period of time to a heavy exposure, but we have a lot of cases, a number of cases, where a person's exposure was only over the course of a couple of months, and it was lighter than you would have expected to see with the other cancers.

Interviewer: Now I know that we've read and heard about, in the news, these nightmares of children and wives getting cancer, never having worked with asbestos. Is that really possible?

Kevin: It is possible, and our office has handled a number of these cases. It's very unusual and it's not something that should cause undue alarm in people that have not actually worked with asbestos products themselves, but asbestos-related cancers, particularly mesothelioma, have been found, for instance, in women who would wash the clothing of their husbands when they came home form work.

Husbands come home covered with asbestos dust, and the wives, in doing the laundry, would be shaking the clothes out, causing dust, and breathing in the dust, and we have had some cases where the wife, or even in some cases children, have come down with asbestos-related diseases even when they haven't had any kind of industrial exposure to asbestos.

Interviewer: Now, here in the north-east where we are, and in New Jersey where they probably have more asbestos plants than anywhere in the country, there seems to be some level of concern, probably from a concerned perspective legitimately so, for people who lived in the area where these products were being manufactured and processed. Were any of those people actually at risk of getting any kind of asbestos-related disease if they lived in the vicinity of these plants?

Kevin: Yes, actually, they were at risk of getting some diseases. In New Jersey here, we represent a lot of people who lived around the Manville plant. Manville, for years and years, was a major manufacturer in the United States of asbestos-related products and studies have shown that people who lived in the area have had a.

Higher incidence of asbestos-related disease than you would expect in the common population.

Again, it's more of a rare type of thing. There are fewer of these places where this has gone on, but it does happen.

Interviewer: Now, what about smoking? I know that before the start of this program you said that that's a common defense used in cases. If somebody's been exposed to asbestos, can you blame it on asbestos, if they smoked?

Kevin: Well actually, you can. A person who smoked is looked at by the courts -- "you have to take the plaintiff as you find them" is the common phrase. A person who has smoked has -- their body's defense mechanisms are somewhat compromised, which permits them to ingest more asbestos.

There have been studies that have shown that a person who smokes and who is exposed to asbestos has an 80-to-90-times greater risk of getting asbestos-related lung cancer than a person who has never smoked and never been exposed to asbestos.

A person who only smokes has about a ten-times greater chance. A person who only has asbestos exposure has a five-times greater chance, but if you take the two of them together, the risk of getting lung cancer in a person who has smoked and who has also been exposed to asbestos, is 80 to 90 times greater than in the general population.

Interviewer: So if you smoke and you've been exposed to asbestos, it's like throwing gasoline on a fire.

Kevin: That's an analogy that's used often by experts in these cases; it's something that's called synergism, and it's basically two substances which are toxic on their own which, when they are brought together, cause a risk that is far greater than either one of them on its own.

Interviewer: I know that your father was actually exposed to asbestos and he was a [inaudible], correct?

Kevin: That's correct.

Interviewer: So this is something you've lived with most of your life --

Kevin: That's right, yes.

Interviewer: -- so it's important to you on a personal level.

Kevin: Yes it is, yes.

Interviewer: The fact that I stopped smoking at some point in time, does that help me if I've been exposed to asbestos?

Kevin: It absolutely does. Again, most of these issues have been studied by experts and published in medical literature, and the literature shows that when a person who has smoked a pack a day for 25 years and stops smoking, that person's risk of getting lung cancer from the cigarette smoke begins to decline the minute that they stop smoking.

After 10 to 15 years, their risk of getting lung cancer is not quite, but almost, at the same baseline as person that never smoked. That's only if the person has never been exposed to asbestos, obviously. The studies have not shown that the risk declines in a person that has had both a smoking history and exposure to asbestos.

Interviewer: So if you've been exposed to asbestos and smoked, do you still have legal rights?

Kevin: You absolutely have legal rights. Again, getting into the legalities of it a little bit, what we have to show in an asbestos case, for a person that has lung cancer and who also smoked, is that asbestos was one of, and it could be one of more than two or three even, the substantial contributing factor in the development of that person's lung cancer. And again on the basis of the various medical studies that have been published and on the opinions of experts, asbestos, even in a person that's smoked and comes down with lung cancer, generally is a substantial contributing factor.

Interviewer: All right, let's talk a little bit, now that we have the basic medicine down, just for purposes of review: asbestos can cause scarring of the lungs which decreases functional capacity, I think you told us, with asbestosis and plural scarring, correct?

Kevin: Correct.

Interviewer: And then it can cause various types of cancer, including lung cancer, GI cancer, and this tongue-twister mesothelioma?

Kevin: That's right.

Interviewer: Okay. Someone walks into your office and they say, "I have been exposed to asbestos and I have been diagnosed with one of these diseases." What are their legal rights? What do you tell them in that first discussion?

Kevin: In that first discussion, what we typically require is that person bring us a medical record that demonstrates that they've been diagnosed with an asbestos-related illness. That typically takes the form of a chest x-ray report, for the scarring lung diseases, or a pathology report, in a person that's been diagnosed with lung cancer. Typically they're diagnosed and the diagnosis has been confirmed after there's been some surgery, and they can bring us the pathology report that shows us that they have a disease that can be or is caused by asbestos exposure.

Interviewer: Now before we go beyond that, and I don't mean to interrupt you: you have a worker who obviously has a long history of asbestos exposure come into your office, and probably is in a risk population, let's say, but they don't have a diagnosis. What do you tell them? What do you tell that person? Let's deal with that issue first before we get into the details of a lawsuit.

Kevin: Well, for a person that has not yet been diagnosed with an asbestos-related disease, but who has a substantial history of occupational exposure to asbestos and is concerned about their health, we typically recommend to them that they go to their family doctor, and ask the doctor to prescribe them a chest x-ray as kind of an initial run-through on it.

Chest x-rays are always read by radiologists, who may or may not read the chest x-ray and diagnose an asbestos-related illness. If that radiologist reads the x-ray and determines that there are markings on the x-ray that are consistent with asbestos exposure, we then look at [the patient's] history and determine whether or not we can proceed.

If the radiologist, on the other hand, reads the chest x-ray and finds some non-specific findings, and the potential client is not satisfied that doctor has had the expertise or has looked at the x-ray closely enough, we can recommend to that person that they have their chest x-ray read by radiologists that are specially trained in reading x-rays for occupational dust diseases. These are radiologists who are called B-readers. Actually not radiologists; there are some pulmonologists, lung doctors, who are B-readers.

B-readers are certified by the International Labor Organization to read chest x-rays to determine whether or not they show dust diseases.

Interviewer: They couldn't get an 'A?'

Kevin: Well actually no, 'B' is actually the highest designation for a reader of these types of x-rays.

Interviewer: All right, so that person comes in. They're not diagnosed, but they're in a high-risk category. You recommend that they get checked out?

Kevin: Correct.

Interviewer: Is there a reason for them to get checked out other than from a legal perspective?

Kevin: As I mentioned before, any person that has been exposed to asbestos, particularly in an industrial setting or an occupational setting over a number of years, is at a higher risk of developing the various malignancies that we talked about.

Often the people that they've had the most success with in treating malignancies are people that have gone to a doctor for reasons other than being treated for that malignancy. A person breaks a leg and has to have a chest X-ray before they can go into surgery to have it set.

A person who is in for any kind of injury or any other kind of surgery where they do a routine chest X-ray and they see something on a chest X-ray that later turns out to be a malignancy. It's been found that those are the people who have the highest success rate of treating that cancer. So the discovery of untreated cancers and previously undiagnosed cancers is as important as finding whether or not the person has asbestosis.

Interviewer: So it seems one of the most important things that someone could come away from this program with, if they've had significant exposure, is knowledge that they should see their doctor, tell them they believe they were exposed, and that they want some kind of regular evaluation, because that might save their life.

Kevin: That's correct, because sometimes they aren't diagnosed the first time that they get a chest X-ray taken. A lot of times these are guys that never go to the doctor, they haven't been to the doctor in years. They go to a doctor when they're sixty-two years old; they have a chest X-ray taken. Even if at that time the X-ray is negative, it provides a baseline chest X-ray for their own doctor to compare subsequent X-rays with down the line. Any changes are more easily noted in the older X-rays when they're looking at a prior X-ray that was taken.

Interviewer: So is it then typically recommended that somebody who, even if they have a clean X-ray, that's not the end of the story for them, that they need to keep going back on a regular basis?

Kevin: Yes. A person who has worked with asbestos or has worked around asbestos for a number of years, again particularly in industrial settings needs to have chest X-rays on a regular basis. It is recommended that that person have a chest X-ray taken every one to two years. And again, that's something that will both diagnose any subsequent asbestos-related scarring disease, and it could save their lives.

Interviewer: Now, have you ever represented workers who you filed a claim for asbestosis, who had asbestosis, and who later went on to get cancer?

Kevin: Yes. That happens, unfortunately, more often than you'd hope. Many of the clients that we currently represent who have asbestos-related cancers were represented by us previously when they were first diagnosed with asbestos scarring diseases.

Interviewer: Okay. Now I want to go back to the client who has been diagnosed that walks into your office. They say, "Kevin, I knew your dad for a long time, we worked in the same Local together. I trust you; I know you come from a union family. What are my rights? What are my options? I'm placing my legal life at this point in your hands." What do you tell them?

Kevin: A person who has been diagnosed with an asbestos-related injury basically has two different types of legal claims that they can pursue. The first is a worker's compensation claim, which we handle here in our New Jersey office and in New York; we refer people to very qualified lawyers who do that kind of work.

A worker's compensation claim is a claim against the person's last employer for whom he worked while being exposed to asbestos. That's in a completely different system than we deal with; it's in a worker's compensation court system, which is different than a third-party case, which is what we actually handle.

Interviewer: OK, so there are two kinds of cases, I just want to make sure. There's a case against the employer.

Kevin: Right.

Interviewer: That's a worker's compensation case in a separate court system.

Kevin: Right.

Interviewer: And then there is what people have now known as asbestos product liability cases.

Kevin: Correct.

Interviewer: Some people call them asbestos class actions, although they're really not class actions, but the asbestos product liability case. That's the kind of case that we're talking about right now.

Kevin: Yes.

Interviewer: But you need a diagnosis for both before you can proceed in either kind of case.

Kevin: That's correct.

Interviewer: So tell me, in giving someone advice as to whether they have an asbestos product liability case, how do you evaluate the case to tell them whether they have a case or not?

Kevin: Again, the first thing that we do is to determine whether or not the person has an asbestos-related injury. In pursuing an asbestos case, there are a couple of different things that we need to do. There are a couple of different things that, at the end of the day, we need to prove.

The first is that the person has an asbestos-related injury. The second is, we have to show which company's asbestos products that person was exposed to. So we do an extensive job history interview, an employment history interview, to determine where and when the person would have been exposed to asbestos to an extent that would cause or contribute to his asbestos-related injury.

Since we've been doing these cases for so many years, we have a fairly extensive computer database that can match a person's work history with our knowledge of which companies sold products, or distributed products, or installed products at a particular work site. Once we have that information, we're then in a position where we can actually file a lawsuit against the manufacturers and the distributors and the installers and the contractors who are responsible for having put the asbestos in the places where our guy was exposed.

Interviewer: So, what you're looking at first is: one, do they have a disease; and then two, you still have to prove your case.

Kevin: Right.

Interviewer: It's not enough that somebody just has a disease. You still have a case to prove. And when you prove that case, you have to identify not just that they were exposed to asbestos in general, but somebody's asbestos.

Kevin: That's right.

Interviewer: And one of the ways you do that, I take it, is you actually see what the client himself or herself can remember about what products they might have been around and worked with. And even if they can't do that, your experience is so extensive at this point that, more often than not, from all the databases and all the ten thousand clients you've represented, you get information that helps prove that case.

Kevin: That's a fair assessment.

Interviewer: Now, you've made a determination. So, somebody just comes into your office and says, "I was exposed to asbestos, I have asbestosis, " that's not the end of the inquiry.

Kevin: Right.

Interviewer: What typically happens when you say, "OK, I'll take your case"? Under what basis do you take that case, and what kind of expectations should people have when you take that kind of case?

Kevin: We take the case on the basis of representing to that person that we are going to be able to pursue the case against at least some of the culpable parties. A lot of the companies that, over the years, have sold asbestos products - and we'll get into this, I think, a little bit later - have in recent years, really over the last twenty years, have filed for bankruptcy.

Even though these companies are continuing in business and making a lot of money, they file for bankruptcy protection, so we can't sue those companies directly. We have to go through the bankruptcy system.

We then take a case and, once we're able to identify the companies that produced products that this person was exposed to, we file a lawsuit. A typical asbestos-related lawsuit has anywhere from 50 to 75 different companies whom we sue. Then the case goes on from there through the discovery process, and generally through the settlement process, and several years down the line, sometimes results in trial.

Interviewer: What, physically, first happens when a case gets started?

Kevin: Well, a case gets started by our office drafting what is called a legal document, called a complaint. A complaint is a multi-page document that has our allegations, containing just some basic background information on the client; where he lives, where he was exposed, and then some information relating to the various manufacturers and distributors and installers of the products that we're saying, are responsible for this person's injuries.

Interviewer: OK then, now that puts the case into the court system.

Kevin: That is correct.

Interviewer: What is the next thing that generally happens in the context of a case?

Kevin: The next thing that generally happens is that discovery begins. Discovery is the process by which we, as the lawyers for the plaintiffs, for the claimants, are able to get information from the different companies that we've sued. Vice versa, the companies can get some information about the plaintiffs that are bringing these cases against them. Each side is entitled to have the full knowledge of the claims that are being made against them and the defenses that are being put up against those claims.

Interviewer: Now, just this past week there was an article in the newspaper about, after nine years, the plaintiffs in the Dow Corning silicon breast implants litigation, which had claims against Dow Corning because they went into bankruptcy, they finally start to see some money. A number of questions we've already received this morning, and I know you can't give specific advice because it depends on people's specific circumstances, but a lot of people ask: "Well, my case has been pending for a while, what kind of expectation should I have, and how long the case will be, and what kind of compensation I might see?"

Kevin: Well, typically the cases last, the cases in our court system, last anywhere, well, we have it down to about six or seven years in New York, and I think it's a little bit less than that here in New Jersey. Bankruptcy cases, on the other hand, can continue. We have some bankruptcies, for instance, that were filed in the 1980s that are still that still haven't been resolved.

Rayteck, is one that comes to mind, where a company filed for bankruptcy protection and the claims in bankruptcy are still pending, and no money has yet been paid out. Unfortunately those are some of the things that we really can't do anything about, in a bankruptcy context. The cases themselves have to run their course. In New York, if a person has been diagnosed with an asbestos-related disease and has basically been diagnosed as terminal at that point, the law allows us to expedite those cases, and those are cases that are usually, generally resolved more quickly than a typical case of a person with scarring lung disease.

Interviewer: You have a lot of defendants in these cases, and I know that you were one of the principal architects that everybody in the country seems to be copying now, about how you approach these cases with multiple responsible parties. During the course of a case, does somebody have to wait until their case actually gets on the courthouse steps in order to get paid? Or is something happening with many of these defendants along the way?

Kevin: Along the way, since we sue so many of these companies, a number of them approach us fairly early on in the litigation and ask whether or not we are interested in attempting to resolve the case before it gets to the courthouse, to settle the case.

In probably about fifty percent of the cases, fifty percent of the defendants anyway, eventually come to us, and we are able to resolve the cases over that four or five year period. Typically once some of the money begins to disperse, people would begin to hear about settlements, within a year or so. Some of that money begins to be dispersed within a year to two years of when a case is filed.

Interviewer: There are always exceptions though.

Kevin: There are always exceptions, because a lot of the companies would prefer to hold onto their money until they actually have to pay, and they are not really put to that until the case is listed for trial, several years down the line.

Interviewer: Now I know from your personal experience, I know you're personally invested in this process. These companies that you are suing, how long was it known that this product, that has hurt so many people, how long was it known that it could do these things to people?

Kevin: Well, what we can prove varies among the different defendants that we sue. Part of what we have to do when a case eventually comes on to trial is, not only to show that the person has been diagnosed with an asbestos-related disease and that a particular company's product caused that, or contributed to that disease, we also have to show that the company either, actually knew about the dangers of asbestos, or should have known.

That the knowledge of the dangers of asbestos was such, that a company in their position; manufacturing, or distributing, or installing asbestos products, should have known that a person being exposed to the dust being created by those products, may come down with injury.

Over the years we've tried a lot of these cases, as you know, and the evidence has been that the dangers of asbestos in the published medical literature, began actually in the late 1800s, in 1898. A name was put to asbestosis, the scarring lung disease, in medical literature, in 1927. Descriptions of the disease asbestosis began to show up in trade journals among manufacturers of asbestos pipe covering and block and cement, in the 1930s.

Interviewer: Wait a second. You're saying that is was in the medical literature in the early 1900s and they were actually putting it in their trade journals?

Kevin: Yes.

Interviewer: That they knew it was bad?

Kevin: Yes.

Interviewer: Then how did they get away with that?

Kevin: Well they got away with it, some of them, by conducting their own studies. There are a number of asbestos companies, companies that produce asbestos products that were involved in actual medical studies in the 1940s, trying to disprove the notion that asbestos can cause disease in humans. In a number of cases where the results of those studies had a negative impact on the companies, those studies were suppressed. So those studies did not reach the general medical literature until years later.

Interviewer: Now, did you actually ever put into evidence in a courtroom that kind of evidence?

Kevin: Yes, we have. That's very compelling evidence of actual wrong doing by some of these companies back in the 1940s.

Interviewer: That makes Tyco and Enron, sound like child's play! I mean, how do juries react to that kind of thing?

Kevin: Juries react very strongly to that type of thing. When you're talking about life and death, particularly in the context of some of these companies who are weighing those types of consequences against what their bottom line is, juries react very strongly to it. We've been very successful in cases like that.

Interviewer: How do you find this stuff, this kind of information, how do you get it?

Kevin: Well, again, I talked about this discovery process and a lot of it has been documented that have been discovered through our requests, plaintiffs requests, of these companies, going back over many years. The asbestos litigation has been going on, in the country, since the 1970s. I think the first asbestos cases were brought down in Texas.

Over the course of time documents have been brought to light that have begun to show some of these things. The more you put the pieces together, the more pieces that you find and that you're able to find and it becomes an extremely compelling case.

Interviewer: Now you're from a Union family, where asbestos was part of growing up. How does that motivate you on a personal level? Finding this stuff out, as you're sitting there reading these documents, what does it do?

Kevin: Well on a personal level it motivates me even more than I would in my desire to represent our clients just in their cases, if I think that if I did not have the background that I have, I would not have approached my work as enthusiastically as I have over the last 20 years.

Interviewer: Well I know you have a reputation for burning the midnight oil on these issues and you've gotten great results. And that's one of the things I wanted to ask you. Out of the tens of thousands of clients that you've represented here in the north east and I know some of the people live in Florida now and are scattered all over the country that come to you what percentage of those people have ever walked away with no money? From you?

Kevin: The people that we have represented, I can honestly say that there's been nobody that's walked away without some settlement money in their case. We have had cases that we've actually gone to trial on. I think that over all the years, one case did not go to trial; the jury found the person's cancer only to be caused by their smoking. But that person had settled for a substantial amount of money with most of the companies that were in the case, and we only went to trial there against a couple of defendants.

Interviewer: So...

Kevin: So everybody, every case that we've taken on has obtained some form of compensation.

Interviewer: Out of the tens of thousands of cases represented?

Kevin: Right.

Interviewer: Now that doesn't necessarily mean that there won't be a case in the future that will be a problem...

Kevin: Right.

Interviewer...but your track record is pretty good.

Kevin: Yeah, our track record is pretty good.

Interviewer: Now, I would be remiss if I didn't spend at least a couple of minutes, because it's all over the newspapers, particularly this week, that there's a bill again in the senate. And as I understand the bill, and maybe you could tell us, that bill would wipe out the cases of most asbestos victims.

I also read something this morning I felt was quite alarming, that said that so far this year the Senate Republican majority has forced debate on the Senate floor 25 days on limiting people's rights and only 15 days on authorization and spending for Iraq. I find this unbelievable.

But tell me about this bill. Should asbestos families and workers be concerned about this bill? What does it do and is there anything that they can do to help?

Kevin: The bill does several things. And this is something that's been bouncing around the senate, particularly over the last couple years. A similar bill was voted out of the senate judiciary committee last year. It never went to a floor vote because they didn't think they would get the votes necessary to pass it.

Basically this bill is a bailout of the companies that have been involved in asbestos litigation and their insurers. The bill sets up a fund, basically, consisting of what seems like a high number and the number's gone back and forth, apparently the new bill is less than what had been previously talked about but somewhere in the neighborhood of 100 billion dollars to settle hundreds of thousands of asbestos claims that either currently pending in the country or that may arise in the future.

Interviewer: Why isn't that a good thing?

Kevin: It's not a good thing because, first of all, there are still thousands and thousands of people each year that are being diagnosed with asbestos disease. It's been shown that the diagnosis of asbestos-related diseases won't even peak until the year 2010. The money that is being considered for this fund will not even begin to cover the claims and the compensation that these people have been able to get in our justice system to date.

Another one of the things that the legislation does is that it puts an end to cases that are currently pending. If, for instance, we have a person, a client who has signed settlement papers saying that they agree to settle a case with a particular company for $5,000, that settlement is wiped out.

That person then has to go back into the line and wait for their money to come out of this fund, which sets up a bureaucracy that's not even going to start any action for several years down the line.

Interviewer: Well, and I know that that provision, they've taken in, they put it out, and they take it in. It seems like the ping-pong ball.

Under this fund that they want to create, does everybody still have a right to get money?

Kevin: No. Because, again, the fund now sets up certain very strict medical criteria under which a person has to show that they have changes in their x-rays and pulmonary function tests that go beyond even those that have been accepted in the bankruptcy courts that have considered these issues extensively, with companies such as the Manville Company or Pittsburgh Corning or Owens Corning Fiberglass.

Interviewer: Well, what about the argument you read that you lawyers are messing up the companies? Are these companies out of business?

Kevin: The majority of these companies are not out of business. I mean, you hear numbers of the various companies that have been forced into bankruptcy, but if you look at the names of the companies, it's names like Halliburton, whose name is in the news always. Or Owens Corning Fiberglass. Manville is still a going corporation, and they filled for bankruptcy in 1982. So these aren't companies that are being forced out of business.

Interviewer: So bankruptcy for you as an individual, where the only thing that you might have left is your house and a car, is a lot different than bankruptcy for a corporation. What's bankruptcy mean for a corporation, this Chapter 11 thing? Can you just tell us quickly?

Kevin: Very quickly, and again, my area of expertise is not bankruptcy, but in the context of the asbestos litigation, what bankruptcy typically means, is that a company comes in to bankruptcy court and declares that their liabilities, their potential liabilities from asbestos-related cases far exceeds their assets. And they need the protection of the bankruptcy court to go forward and to continue their business. It's really a way to limit their exposure in asbestos cases.

Interviewer: Now I've heard that this legislation could wipe out as many as 80% of the asbestos victims now and in the future from ever receiving a nickel. Is that true?

Kevin: That is true. And again, it's primarily due to, well, to two things: the criteria that's been set up and the fact that it's not even close to being properly funded.

Interviewer: Now. What I understand also, that I read, I think, in Sunday's paper, that there's a bill up this week. What can people do to help themselves, or help their neighbors and their family, to not let this bill become law?

Kevin: The thing that they can do and it's something that works, believe it or not, because we've had a lot of experience in doing this is to actually contact your US senators. Tell them that you're opposed to this bill and make sure that they're on your team in voting against it.

It'll be weird, people from throughout the country who we represent, typically people from New York or New Jersey who have relocated in different areas of the country, our recommendation is that as many of you call them, call your senators and tell them that you are opposing this bill and that you hope they are too.

Interviewer: Are the unions against this bill?

Kevin: The unions are very strongly against this bill.

Interviewer: OK, so what you're saying, what you're telling people, is to pick up your phone? Call your senator and say, "Vote no for the asbestos bill. It's unfair."

Kevin: That's exactly right.

Interviewer: Kevin, thank you very much for all your time. We'll have you back again. We didn't get to all the subjects I wanted to, but we only have an hour program. Did a great job and thank you for all your hard work on behalf of asbestos victims and union families across this country.

Kevin: It's been my pleasure.

Interviewer: Thank you.

We'll see you in two weeks on Your Legal Rights. If you should have any questions about what happened today, this program will be on-demand on our site at www.will-tv.com, probably by tomorrow. You can go and watch all or part of the program and email questions to us.

I do know that we received a number of questions during the course of this broadcast that really went to specific people's circumstances and specific questions affecting their case. We have no way of really knowing, as the questions are asked, whether you're the client of this office or another office. But if you are clients of this office, please feel free to contact us at any time. You can call Kevin.

One thing I guess I have to ask you Kevin is if people should want to talk to you about their case, or whether they have a case, how do they contact you?

Kevin: Well, they can call me at my office and ask for either me or every case of ours also has a paralegal assigned to the case. So they'll always be able to get somebody to speak to specifically about their case.

Interviewer: OK. Thank you for tuning in and we'll see you next time on Your Legal Rights. Have a great day.