New York Times Slams Asbestos Bill

A big shout out is in order to the New York Times Editorial Board for criticizing the Furthering Asbestos Claim Transparency Act (FACT) of 2013.  This is a bill that House Republicans have attempted to push through the House Judiciary Committee.  The bill would make it more difficult for plaintiffs injured by exposure to asbestos to receive fair compensation they are entitled to under the law.  The New York Times Editorial Board came out blazing with their op-ed piece. It reads as follows:

Republicans rammed a bill through the House Judiciary Committee last month that would make it harder for plaintiffs injured by asbestos to get fair compensation. The bill is supposedly designed to root out fraud and abuse, but there is no persuasive evidence of any significant fraud or abuse. Before plunging ahead with this misguided attempt to protect asbestos companies from lawsuits, Congress ought to commission an objective study of whether there is even a problem that needs fixing.

Millions of workers were injured by asbestos over the years and thousands of suits were filed against asbestos companies, which often were aware of the dangers but concealed the risks from workers and the public. Dozens of companies declared bankruptcy and established trusts, financed with company money, to pay the present and future claims against them. The trusts typically pay only a small percentage of the value of a claim. Plaintiffs are also free to sue companies that have not gone bankrupt.

The Republican bill, known as the Furthering Asbestos Claim Transparency Act (FACT) of 2013, would allow asbestos companies to demand information from the trusts for virtually any reason, forcing the trusts to devote limited resources to responding to fishing expeditions that will slow the process of paying claims.

The bill would also increase the burden on claimants to supply information. But it puts virtually no burdens on asbestos companies, like disclosing the settlements they have reached with plaintiffs or requiring them to reveal where their products were used and when, so that workers know which companies or trusts might be liable for their injuries.

Fair-minded members of Congress should ask the Government Accountability Office to determine whether there is significant fraud in asbestos claims before enacting a law that makes it harder to obtain fair compensation.

Editorial Board pieces can sometimes underwhelm; other times they can read as quite pedantic.  Here, they got it right.  Bravo for calling out the ominous legislative attempt here.  Here's hoping the rest of the members of Congress will read this piece and look further into this faulty bill.  It doesn't even deserve an up or down vote: it needs to be pulled.

Their good work has me reading up on who exactly sits on the NY Times Editorial Board.  You can check them out here.

New York Times Slams Asbestos Bill

A big shout out is in order to the New York Times Editorial Board for criticizing the Furthering Asbestos Claim Transparency Act (FACT) of 2013.  This is a bill that House Republicans have attempted to push through the House Judiciary Committee.  The bill would make it more difficult for plaintiffs injured by exposure to asbestos to receive fair compensation they are entitled to under the law.  The New York Times Editorial Board came out blazing with their op-ed piece. It reads as follows:

Republicans rammed a bill through the House Judiciary Committee last month that would make it harder for plaintiffs injured by asbestos to get fair compensation. The bill is supposedly designed to root out fraud and abuse, but there is no persuasive evidence of any significant fraud or abuse. Before plunging ahead with this misguided attempt to protect asbestos companies from lawsuits, Congress ought to commission an objective study of whether there is even a problem that needs fixing.

Millions of workers were injured by asbestos over the years and thousands of suits were filed against asbestos companies, which often were aware of the dangers but concealed the risks from workers and the public. Dozens of companies declared bankruptcy and established trusts, financed with company money, to pay the present and future claims against them. The trusts typically pay only a small percentage of the value of a claim. Plaintiffs are also free to sue companies that have not gone bankrupt.

The Republican bill, known as the Furthering Asbestos Claim Transparency Act (FACT) of 2013, would allow asbestos companies to demand information from the trusts for virtually any reason, forcing the trusts to devote limited resources to responding to fishing expeditions that will slow the process of paying claims.

The bill would also increase the burden on claimants to supply information. But it puts virtually no burdens on asbestos companies, like disclosing the settlements they have reached with plaintiffs or requiring them to reveal where their products were used and when, so that workers know which companies or trusts might be liable for their injuries.

Fair-minded members of Congress should ask the Government Accountability Office to determine whether there is significant fraud in asbestos claims before enacting a law that makes it harder to obtain fair compensation.

Editorial Board pieces can sometimes underwhelm; other times they can read as quite pedantic.  Here, they got it right.  Bravo for calling out the ominous legislative attempt here.  Here's hoping the rest of the members of Congress will read this piece and look further into this faulty bill.  It doesn't even deserve an up or down vote: it needs to be pulled.

Their good work has me reading up on who exactly sits on the NY Times Editorial Board.  You can check them out here.

Cycling In The Puget Sound: Be Careful Out There

It has been a brutal couple of months here in the Pacific Northwest for cycling incidents.  The list is long and painful. My deep sympathies for all the victims and their families. We hope we can learn something from these events. We do hope that the reporting of these incidents will bring about greater awareness to drivers and to fellow cyclists. Be careful out there.

• May 1st:  Cyclist Fatally Hit While Riding During National Bike to Work Day. A bicyclist attempting to cross East Marginal Way in Seattle was struck by a semi truck. Cyclists and city government officials have long known about the hazards in this area: cyclists from the West Seattle Bridge reach the waterfront on a sidewalk west of Marginal way; they then try to reach the bike line on the east side of the street. Seattle Time transportation reporter Mike Lindblom pointed this out years ago when he wrote:

  A greater threat is the tango between freight trucks and northbound cyclists entering from the West Seattle Bridge trail. Riders must cross East Marginal Way South to reach the bike lane to downtown. Truckers tend to show courtesy, but sightlines are poor enough that cyclists shun two traffic signals, instead choosing to cross wherever the coast is clear.  See the full article here.

•  May 30th: Cyclist Fatally Hit from Behind.  A cyclist traveling southbound on  Airport Way South is hit by a sedan traveling in the same direction.  The cyclist is thrown from her bicycle. She is rushed to Harborview Medical Center but cannot be saved. Her name was Surinderpaul Basra.  She was an employee at Essential Baking Company.  A memorial walk was held for her to honor here and bring greater awareness to bicyclists on the road.

• June 16: Cyclist Fatally Hit During Charity Ride.  Xavier Pelletier, a 16 year-old boy from Victoria, BC rides in the tw0-day Ride to Conquer Cancer charity bicycle event. He was riding in a large pack and tried to pass when he fell into the oncoming lane of traffic and was hit by a car. Xavier was riding with his mother and his uncle. He rode to support his uncle, a cancer survivor. He sure sounds like he was a neat kid. His family has graciously asked that folks make donations to the Ride to Conquer Cancer event through the BC Cancer Foundation. Others have been more critical of the lack of certain safety precautions.  Here's a letter to the editor from one cyclist who rode in the event.

• June 16th: Bicyclist Attacked.  A skateboarder hanging out with his fellow boarders pushed his board in front of a cyclist, which caused the cyclist to crash. The group then surrounded the cyclist and beat him unconscious. Cycling is dangerous enough that we shouldn't have to contend with this kind of hazard too.  These skateboarders don't represent the views of the majority of skateboarders who I'd like to think view cyclists as comrades who also have an affinity for self-propelled wheels. This cyclist confronted the skateboarders, but on balance he did nothing wrong.  It raises the question however as to what cyclists can do to improve their image in the community.  I have some ideas, but that's a topic for another day.

• June 18th:  Criminal Conviction in Car Collision With Bicyclist. A Gonzaga University law student pleaded guilty to hit and run and vehicular assault. He was sentenced to one year in prison for having crashed into a cyclist who trailed his young daughter from behind, and fled the scene.  The girl suffered a fractured skull and wrist but has thankfully since recovered.

• June 22: Well-Known Cyclist Fatally Collides With Car.  Just this past weekend, Jerry Shafer, a well-known local competitive cyclist died after having collided with an on-coming vehicle while attempting to pass other cyclists.  This is yet another local tragedy.  Shafer, 65, was as experienced a rider as they get.  It's a reminder that every cyclists, no matter the experience level can be just seconds away from tragedy.

Cycling In The Puget Sound: Be Careful Out There

It has been a brutal couple of months here in the Pacific Northwest for cycling incidents.  The list is long and painful. My deep sympathies for all the victims and their families. We hope we can learn something from these events. We do hope that the reporting of these incidents will bring about greater awareness to drivers and to fellow cyclists. Be careful out there.

• May 1st:  Cyclist Fatally Hit While Riding During National Bike to Work Day. A bicyclist attempting to cross East Marginal Way in Seattle was struck by a semi truck. Cyclists and city government officials have long known about the hazards in this area: cyclists from the West Seattle Bridge reach the waterfront on a sidewalk west of Marginal way; they then try to reach the bike line on the east side of the street. Seattle Time transportation reporter Mike Lindblom pointed this out years ago when he wrote:

  A greater threat is the tango between freight trucks and northbound cyclists entering from the West Seattle Bridge trail. Riders must cross East Marginal Way South to reach the bike lane to downtown. Truckers tend to show courtesy, but sightlines are poor enough that cyclists shun two traffic signals, instead choosing to cross wherever the coast is clear.  See the full article here.

•  May 30th: Cyclist Fatally Hit from Behind.  A cyclist traveling southbound on  Airport Way South is hit by a sedan traveling in the same direction.  The cyclist is thrown from her bicycle. She is rushed to Harborview Medical Center but cannot be saved. Her name was Surinderpaul Basra.  She was an employee at Essential Baking Company.  A memorial walk was held for her to honor here and bring greater awareness to bicyclists on the road.

• June 16: Cyclist Fatally Hit During Charity Ride.  Xavier Pelletier, a 16 year-old boy from Victoria, BC rides in the tw0-day Ride to Conquer Cancer charity bicycle event. He was riding in a large pack and tried to pass when he fell into the oncoming lane of traffic and was hit by a car. Xavier was riding with his mother and his uncle. He rode to support his uncle, a cancer survivor. He sure sounds like he was a neat kid. His family has graciously asked that folks make donations to the Ride to Conquer Cancer event through the BC Cancer Foundation. Others have been more critical of the lack of certain safety precautions.  Here's a letter to the editor from one cyclist who rode in the event.

• June 16th: Bicyclist Attacked.  A skateboarder hanging out with his fellow boarders pushed his board in front of a cyclist, which caused the cyclist to crash. The group then surrounded the cyclist and beat him unconscious. Cycling is dangerous enough that we shouldn't have to contend with this kind of hazard too.  These skateboarders don't represent the views of the majority of skateboarders who I'd like to think view cyclists as comrades who also have an affinity for self-propelled wheels. This cyclist confronted the skateboarders, but on balance he did nothing wrong.  It raises the question however as to what cyclists can do to improve their image in the community.  I have some ideas, but that's a topic for another day.

• June 18th:  Criminal Conviction in Car Collision With Bicyclist. A Gonzaga University law student pleaded guilty to hit and run and vehicular assault. He was sentenced to one year in prison for having crashed into a cyclist who trailed his young daughter from behind, and fled the scene.  The girl suffered a fractured skull and wrist but has thankfully since recovered.

• June 22: Well-Known Cyclist Fatally Collides With Car.  Just this past weekend, Jerry Shafer, a well-known local competitive cyclist died after having collided with an on-coming vehicle while attempting to pass other cyclists.  This is yet another local tragedy.  Shafer, 65, was as experienced a rider as they get.  It's a reminder that every cyclists, no matter the experience level can be just seconds away from tragedy.

9th Circuit to Hear En Banc Oral Argument on Important Washington Asbestos Case

There has been an important development on the asbestos litigation front in the Ninth Circuit. The Ninth Circuit Court of Appeals has set an en banc oral argument on a matter where a Ninth Circuit panel had previously reversed the trial court and remanded for a new trial. The matter is Henry Barabin, et al. v. Asten-Johnsen and Scapa Dryer Fabrics, Inc.

I provide some background to put this development into proper context. The plaintiff was diagnosed with mesothelioma in 2006 and claimed that he was exposed to asbestos products during the 30 plus years he worked at the Crown Zellerbach paper mill in Washington. The trial court originally excluded one of the plaintiff's experts, but after the expert's credentials had been supplemented, the court reversed its original ruling and allowed the expert to testify. The jury found for the plaintiff and rendered a verdict for $10.2 million.

At issue is the basis for the expert to be able to opine whether "any exposure" to asbestos is sufficient to cause mesothelioma. This type of testimony has long been permitted by the courts, but has recently come under attack. But the testimony isn't as troubling as those who seek to exclude it often contend. Any exposure to asbestos contributes to the totality of exposures, which together lead to mesothelioma. It's not much different than saying that any pollutant dumped into a lake by a polluter causes the lake to be contaminated. You can't separate the pollutants, but you can say that each together caused the lake to be polluted.

On appeal, the panel for the Ninth Circuit concluded that the lower court had not considered all of the Daubert factors to allow for this kind of "any exposure" testimony.  Rather than remand the matter to the trial court for determination of the Daubert factors, the Ninth Circuit panel reversed and remanded for a new jury trial. In a concurring opinion, two of the circuit judges suggested that a reversal was not the correct approach. Instead, they opined, the matters should be remanded to the trial court to make a new Daubert determination before reaching the conclusion that a new trial is in order. If the expert meets the Daubert factors, there won't be a need to put on an entire trial again. In other words, trust the trial court.

The issue at oral argument may boil down to how strictly the Ninth Circuit believes it must adhere to the principle articulated in Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).  Strict adherence to Mukhtar could mean that the matter cannot be remanded to the trial court for a complete determination as to the reliability of the expert out of concerns that the court might succumb to "post-hoc rationalization." In Barabin, two of the concurring circuit judges argued that the Mukhtar rule is incorrect and that we routinely trust district courts to assess their earlier judgments in disputes where more is on the line than a money award.

One can speculate that the en banc oral argument was not granted to merely rubber stampthe existing decision. Something more is likely to occur. Indeed it is very rare for the Ninth Circuit to grant a petition for an en banc oral argument. But the subtext here is that perhaps this might not be as much of a surprise: the trial judge has an impeccable reputation and a reversal on any of his cases is equally very rare. If ever there were a judge who could be trusted by the appellate court to dutifully make a new Daubert determination, this trial judge is the poster child. And so it could be, that even in a remand the trial judge could turn water into wine. He may end up carving a new path for his fellow District Court brethren, one that does away with the skeptical view of trial judges found in Mukhtar and streamlines post-appeal proceedings for litigants.

Perhaps less likely, but possible, is that the Court of Appeals could affirm the trial court and find that the Daubert findings have been met. Again, allowing "any exposure" testimony does not ordinarily put the expert testimony on shaky ground. But we shall see.

The oral argument is set for June 25th. Plaintiffs have a crack appellate advocate as do the defendants. It has all the makings for a very interesting hearing. I hope to be able to attend.