Legal Mores ...
... or, to borrow a phrase from those doing the limbo, "how low can you go?" Kim Strassel has a long but eye-opening article in the Wall Street Journal today looking at the legal shenanigans surrounding a single patient whose exposure to asbestos produced mesothelioma, a malignant cancer.
I can't do justice to it with a brief summary, so you'll need to read it in its entirety. The highlights are that
- Two different law firms sued multiple asbestos trust funds, obtaining compensation from five of them for the same patient. That's right, five.
- One of the firms tried to turn the trick a sixth time, believe it or not, but unfortunately for them this defendant managed to get the history of multiple awards exposed.
- This second firm then went back and "modified" previous filings - for which they'd already received awards - which if originally presented in their modified form would likely not have resulted in awards.
- Left an incriminating email trail of their maneuverings and subsequent cover-up.
Suffice it to say that it might make a great TV movie.
As a doctor and surgeon I'm left with two thoughts. First, it seems to me that trying to obtain payoffs from multiple sources is the legal equivalent of doing unnecessary surgery, or at least billing two insurers for the same procedure.
Second, how lax are the standards regarding legal documents that they can be changed in ways that completely alter their meaning after a settlement or award is received based on those documents? The firm in question seemed to believe that their slight of hand involved not the alterations but the fact that they were trying to hide the changes.
Having been on the receiving end of patient and attorney requests to "modify" my records it would seem to be the legal standard that all records are malleable. I can assure you they are not, unless there is a proven error, and not just a "preferred" version of events.
Our law firm, Brayton Purcell, wrote a reply to the Wall Street Journal article. The Journal published it at:
http://online.wsj.com/article/SB116831503614871064.html?mod=googlenews_wsj
This is the text of that letter:
A Death by Mesothelioma
January 9, 2007; Page B10
In response to the Dec. 5 editorial-page commentary "Trusts Busted" by Kimberley Strassel: In June of 2000, Harry Kananian died of mesothelioma, a rare cancer of the lining of the lungs, caused only by past exposure to asbestos fibers. Prior to his death, a personal injury lawsuit was filed on his behalf in California.
A number of companies that made or sold asbestos-containing products were named as defendants, including Lorillard Tobacco Co.
During the pendency of the California asbestos personal injury case, Mr. Kananian's attorneys also submitted a number of claims to several bankruptcy trusts based on Mr. Kananian's probable past exposure to asbestos-containing products manufactured or sold by the bankrupt companies.
His personal injury case in California terminated by law upon his death. Thereafter a wrongful death case was filed in California and later re-filed in Ohio on behalf of his heirs. Lorillard Tobacco was again named as a defendant in these wrongful death actions.
The allegations leveled against the defendant companies, including Lorillard, in both California and Ohio have been entirely consistent. At all times, plaintiffs have asserted that it was the cumulative dose of asbestos inhaled by Mr. Kananian from all sources that caused his mesothelioma.
Lorillard, in conscious disregard for the health and safety of its customers, incorporated a particularly lethal form of asbestos fiber into its Kent "Micronite" cigarette filters from 1952-1956.
Unfortunately, Mr. Kananian switched to Kent after hearing and seeing that Lorillard's advertising touted the health benefits of Kent cigarettes over other brands. As a consequence he inhaled lethal quantities of asbestos fiber each time he smoked a Kent cigarette between 1952-1956.
Because medically and legally the actual asbestos fibers that contributed to cause Mr. Kananain's mesothelioma cannot be individually identified, Mr. Kananian (and his family after his death) as well as other persons injured by asbestos exposure are entitled to seek damages from all of the probable sources of their asbestos exposure.
Seeking damages from all of the companies who profited from the sale of this deadly material is not "double dipping," but rather is entirely proper under our system of civil jurisprudence to ensure full and complete compensation for injuries or death caused by an individual's cumulative past exposure to asbestos.
The bankruptcy claims submitted by Brayton Purcell in the Kananian matter contained accurate information regarding Mr. Kananian's past exposure to asbestos insulation products made Johns Manville, the bankrupt entity involved.
To the extent that the claim form originally submitted to the Manville Trust contained some minor inaccuracies, the bulk of the information provided in the form was accurate. An amended claim form was submitted to the Manville trust only to ensure that these minor mistakes were corrected.
Neither the Manville Trust nor any other bankruptcy trust has requested return of the payments previously made to the Kananian family. No objection or protest has been lodged by these trusts in connection with either the original or amended claim forms submitted in this matter.
Mr. Kananian's family members are entitled to this compensation because of his probable past exposure to these bankrupt companies' asbestos containing products, his subsequent contraction of an asbestos caused cancer and his death from that disease.
I would hope the Journal could be more concerned with compensation of innocent people unwittingly exposed and injured by this deadly material rather than leveling unfounded allegations that somehow the attorneys representing these victims are trying to "double dip."
Mark B. Abelson
San Francisco
(Mr. Abelson is an attorney representing Brayton Purcell.)
Posted by: Laura | Jan 12, 2007 at 05:18 PM