A Blast From The Past
This is for those of you involved in the seemingly never-ending story of asbestos litigation.
Imagine that a court offered the following deal:
1) Pay only your infinitesimally small share of the asbestos put into the stream of commerce back when all those companies now owned by Warren Buffett were pumping out thousands or even millions of tons of it annually;
2) Plaintiff's can't call Brody or someone similar to say how asbestos supposedly causes cancer. There'll thus be no implication of the single fiber and so no story making it sound as if that lone fiber is the scientific equivalent of a .30-06 to the head;
3) Plaintiff's can't put on the history of asbestos thereby triggering the hindsight bias that makes jury Monday morning quarterbacking so prone to error (yet profitable); and
4) Plaintiff's can't recover punitives if you give up on your (fairly hopeless anyway) state-of-the-art defense.
You'd take that deal, wouldn't you? Well, by 1986 when I got to Beaumont (where it had all started almost two decades before with Tomplait and then, famously, Borel v. Fibreboard) that deal had been out there to be had by the still-solvent defendants for a few years. And yet they turned it down. Repeatedly.
Why? I've an idea, but it'll have to wait until tomorrow. But I can report that though the judges who offered such grand bargains back then were considered hopelessly pro-plaintiff they'd also invariably take away jackpot verdicts and, as I can attest from my first painter/AML case, humiliate in front of the jury plaintiffs' counsel who argued for big damage awards.
Alas, the defendants fought on. And the plaintiff's bar got very, very, rich. You know what happened next.
Consider this story food for thought; and start your munching with Hardy v. Johns-Manville.
