Webnote 40: Sample Indicative Finality Statement *
1. Summary Data
Members name:
Lloyd’s Membership Number:
Underwriting liabilities
Uncalled losses:
Called but unpaid losses (including interest charged to 31 December 1994):
Interest to be charged in respect of 1995:
Amounts paid on your behalf by the Central Fund:
Members’ agent’s expenses:
Estimated Equitas additional (premium) release:
Total liabilities
Credits
Estimated triple release, less special contribution:
Estimated High Level Stop Loss (HLSL) recovery:
Estimated refund of HLSL premiums:
Estimated settlement credits if reconstruction and renewal proposals are accepted
Litigation settlement fund:
Debt credits:
Total credits
Estimated amount due (from)to/you before Personal Stop Loss
Estimated net Personal Stop Loss recovery/(repayment):
Total estimated finality (cost)/surplus:
Value of your funds at Lloyd’s as at 31 December 1995:
Estimated finality (cost)/surplus taking into account funds at Lloyd’s:
IMPORTANT NOTE: Throughout this indicative statement, figures given in brackets represent estimated liabilities or estimated debts. All figures have been rounded to the nearest thousand pounds.
This data is illustrative and may differ from the data contained in your finality statement
2. Settlement Offer
The debt credits are allocated to Names in up to four tranches. Proceeds from the litigation settlement fund will be deducted before debt credit allocations are calculated. Tables I and II explain the allocation principles governing the litigation settlement fund and the four tranches of debt credits. The tables also show your personal allocation, on the basis of current estimates of your liabilities.
Table I Litigation Settlement Fund- Allocation Principles
Status of litigation as at 31 December 1995 Allocation of award as % of loss to ‘finality’ £000’s
Active litigants who have already won 30 to 35%
Favourable judgments as at 31 December 1995
Active litigants with hearing dates on or before 25 to 30%
30 June 1996
Active litigants with hearing dates between 20 to 25%
1 July and 31 December 1996
Others classified as litigating 10 to 20%
Your Litigation Settlement Fund Allocation
__________________________________________________
Table II Debt Credits-Allocation Principles
Your Debt Credit Allocation
£000’s
Tranche 1. Allocated in proportion to losses to
‘finality’ (excluding personal expenses) in excess
of 80% of average premium income limits, 1986
to 1992.
Tranche 2. Reduces cost of ‘finality’, for those
with bills (excluding called but unpaid losses and
Central Fund debt) in excess of £50,000 after
deducting the value of funds at Lloyd’s.
Tranche 3. Caps cost of ‘finality’ (including all
called but unpaid losses and Central Fund debt),
after deducting the value of funds at Lloyd’s,
at £100,000.
Tranche 4. Assists those Names otherwise not calculated
unable to meet the costs of ‘finality’ after all
previous settlement allocations.
Your total Debt Credit Allocation (before any
allocation from tranche 4)
Total Settlement Offer (before any allocation from tranche 4)
This data is illustrative and may differ from the data contained
in your finality statement
3. Underwriting Data
Table III shows:
A) A breakdown of your underwriting results by year of account including indicative Equitas additional premiums.
B) Allocated premium income limits (PIL). When compared with your underwriting results, these form the basis for the first tranche of debt credits as shown on page 2.
Table IV shows your estimated triple release entitlement.
Table III Underwriting Results (excluding personal expenses)
Allocated Declared Indicative Result
PIL results as at Equitas additional to
31 December 1994 (premium)/release ‘finality’
£000’s £000’s £000’s £000’s
1985 and prior
run-off syndicate
years of account:
1986:
1987:
1988:
1989:
1990:
1991:
1992:
Indicative Equitas
Additional (premium)/
release for liabilities
reinsured into 1993:
TOTAL
Average PIL 1986-1992: % result (for calculation of
1985 and debt credit tranche 1)
prior run-off years: after litigation settlement
Adjusted average PIL for fund allocation:
debt credit calculation:
Table IV Triple Release Estimates
Allocated Estimated Cash Estimated Advance Special Net
PIL pure year of already Members’ cash Contribution triple
account result released Agent Profit calls at 1.5% of release
or release commission allocated PIL
£000’s £000’s £000’s £000’s £000’s £000’s £000’s
1993
1994
1995
TOTAL
This data is illustrative and may differ from the data contained in your finality statement
4. Personal Stop Loss
Table V shows our information on the personal stop loss policies you hold. This may not cover the full range of your policies: we are currently seeking to identify a very small minority of policies that are not recorded on our database. If you hold additional personal stop loss policies, or the details shown here are incorrect, please contact your members’ agent immediately. Any estimated recovery against indicative finality statement bills will be liable to change if the underlying figures change.
Table V
Broker Contract Year Excess Indemnity
£000’s £000’s
This data is illustrative and may differ from the data contained in your finality statement
Webnote 41: Completed Loss Reviews *
The policy of commissioning an independent loss review represented a major change in Lloyd’s attitude towards egregious losses by Lloyd’s syndicates. It was announced in 1991 (check book) as described in Chapter 3 of the book. Initially it bought time and was welcomed by many Names. When the results were circulated to affected Names they were so widely distributed that it soon became necessary to publish them. They contained many criticisms and were of real value to some of the litigants. Inevitably, they provided bad publicity for Lloyd’s, but were considered a necessary step in the interests of affected Names. Eventually, with the prospect of an overall settlement to replace syndicate level litigation, they had outlived their usefulness. After 40 loss reviews, at considerable expense and adverse publicity, they were brought to an end.
The loss reviews were normally supervised by an independent chairman, a leading accountant and a Lloyd’s market practitioner. Copies of all loss reviews, which contain detailed examination of what went wrong in each case, are held by Lloyd’s.
| Syndicate | Year of Account | Managing Agent | Date of Publication | Loss Review Chairman |
|---|---|---|---|---|
| Number | ||||
| 540 | 1987 | Feltrim Underwriting Agencies Ltd | Sep-92 | Sir Patrick Neill |
| 1988 | ||||
| 1989 | ||||
| 847 | 1987 | |||
| 1989 | ||||
| 1990 | ||||
| 255 | 1988 | Rose Thomson Young (Underwriting) Ltd | Aug-92 | Timothy Geoffrey Boatman |
| 345 | 1982 | Rose Thomson Young (Underwriting) Ltd | Jan-93 | Timothy Geoffrey Boatman |
| 1011 | 1988 | Rose Thomson Young (Underwriting) Ltd | Jan-93 | Timothy Geoffrey Boatman |
| 164 | 1989 | Gooda Walker Group | Sep-92 | Kieran Charles Poynter |
| 290 | 1989 | |||
| 1990 | ||||
| 298/222 | 1988 | |||
| 1989 | ||||
| 299/297 | 1988 | |||
| 1084 | 1988 | Cuthbert Heath Underwriting Ltd | Oct-92 | Peter DuBuisson |
| 134/184 | 1983 | Mackinnon Hayter & Co Ltd | May-92 | Michael Lickiss |
| 1984 | ||||
| 1985 | ||||
| 216 | 1989 | Devonshire Underwriting Agencies Ltd | Jul-93 | Anthony Martin Blake |
| 1990 | ||||
| 833/834 | 1989 | |||
| 1990 | ||||
| 255 | 1989 | Rose Thomson Young (Underwriting) Ltd | Aug-92 | Timothy Geoffrey Boatman |
| 299/297 | 1989 | Gooda Walker Group | Apr-93 | Kieran Charles Poynter |
| 387 | 1983 | Gooda Walker Group | Sep-93 | Kieran Charles Poynter |
| 1984 | ||||
| 1985 | ||||
| 1986 | ||||
| 1987 | ||||
| 1988 | ||||
| 1989 | ||||
| 1137 | 1989 | Devonshire Underwriting Agencies Ltd | Jul-93 | Edward L.S. Weiss |
| 666 | 1989 | Brockbank Non-Marine Ltd | Dec-93 | Jeremy Casson |
| 268 | 1989 | |||
| 421 | 1983 | Merrett Syndicates Ltd | Jul-93 | Roger Whewell |
| 319 | 1982 | Hardcastle Underwriting Agencies Ltd | Apr-94 | Edward L.S. Weiss |
| 604 | 1984 | Cuthbert Heath Underwriting Ltd | Mar-95 | James A. Smart |
| 80/568 | 1988 | RAF Macmillan & Co Ltd | Apr-95 | Sir Michael Lickiss |
| 843/698 | 1988 | |||
| 475 | 1989 | RJ Bromley (Underwriting Agencies) Plc | Feb-95 | Jeremy Casson |
| 1990 | ||||
| 745/748 | 1990 | KPH Underwriting Agencies Ltd | Nov-94 | Roger Whewell |
| 527/379 | 1989 | Devonshire Underwriting Agencies Ltd | Dec-94 | Edward L.S. Weiss |
| 1990 | ||||
| 1035 | 1989 | NT Evennett & Partners Ltd | Sep-95 | Sir Michael Lickiss |
| 309/461 | 1989 | Christopherson Heath Underwriting Agencies Ltd | Sep-95 | Frank E. Guaschi |
| 1990 | ||||
| 321/356 | 1989 | Gresham Underwriting Agencies Ltd | Aug-95 | Edward L.S. Weiss |
| 1990 | ||||
| 740/774 | 1990 | Eversure Underwriting Agency Ltd | Nov-96 | Ian Clark |
| 384 | 1989 | Aragon Agencies Ltd | Aug-96 | Ian Clark |
| 428 | 1990 | Sturge Marine Syndicate Management Ltd | Jun-96 | Jeremy Casson |
| 210 | 1990 | Sturge Non-Marine Syndicate Management Ltd | Dec-96 | Jeremy Casson |
Source: Lloyd’s
Webnote 42: Attempt to alter US Bankruptcy Laws *
Another move to change the legal position affecting American Names was made in 2000, shortly before the end of President Bill Clinton’s term of office. On page 284, the book describes earlier efforts to change US securities law. This time an attempt was made to introduce a special provision in the US bankruptcy law. This provision did not mention Lloyd’s by name. It only concerned anyone who was subject to enforcement of a judgment from an English court in an American court, where the underlying causes of action occurred between 1975 and 1992. (These were the years of membership of Lloyd’s that were in dispute by certain Names.) In these circumstances, it said, no American court could enforce the judgment of an English court until the American defendant had an opportunity to raise de novo questions about the underlying cause of action. In other words, the provision denied full faith and credit to English money judgments. This could be portrayed as an affront to the English court.
The author was told that this provision was ‘slipped in at midnight’ during a conference committee between the House and Senate, when a compromise was being sought between alternative versions of bankruptcy reform. This procedure meant that its introduction avoided a public hearing. Although there was some expectation that President Bill Clinton would veto a bankruptcy reform Bill anyway, there was some concern among Le Boeuf lobbyists. It would not be possible to seek to amend the provision: conference reports from the House and Senate can only be accepted or rejected, not amended. In the event, Clinton vetoed the whole bill, saying it was unfair to consumers.
In 2001, the new Bush administration and the Republicans who controlled the House were more sympathetic to bankruptcy reform. They reintroduced what had been in the conference report as a new Bill. Le Boeuf received some assurances from administration officials that they did not intend the special provision about English court judgments to survive, but the lobbyists remained concerned. Among other steps, they briefed a Washington Post journalist who was already taking a close interest in the whole bankruptcy reform issue. The issue was made prominent by a Washington Post article that appeared on Saturday March 10 2001, a few days before the bill was to be considered by the Senate.
The article said that a bill designed to make it harder for Americans to wipe out their debts through bankruptcy contained a ‘special clause that helps shield a group of well-to-do Americans from a debt of at least $15 million owed to insurance giant Lloyd’s of London.’ It said that a targeted group of around 300 American Names would benefit, ‘including 20 millionaires’. The article also reported a spokesman for the Consumer Federation of America who contrasted ‘wealthy investors’ getting a ‘bailout from their financial obligations’ with Americans of modest means who had to confront ‘harsh new bankruptcy barriers.’
The article also reported the view of one of the affected Names. As he saw it, the bill’s purpose was to enable fair and legal debts to be collected’ and ‘there’s nothing fair or legal about the debts that I and hundreds of others are being asked to pay.’ The Washington Post said the American Names Association had lobbied for the special provision.
This publicity explaining the purpose of the special provision helped generate pressure from several sources against it. Senior members of the administration wrote to the Senate to say that it was bad foreign policy to have a provision disrespecting the money judgments of English courts. Several Senators, drawn from across the ideological spectrum, spoke against the provision, one stating that it was simply wrong, wrong, wrong. By a large majority, the Senate voted for the bankruptcy bill, but made several changes. They deleted the special provision that would shield American Names from the decisions of English courts.
Webnote 43: Griffin Bell Speech 2002 *
June 13, 2002 National Press Club
Asbestos Litigation and Judicial Leadership
Griffin B Bell
Almost thirty years have passed since a colleague of mine on the Fifth Circuit Court of Appeals, the late Judge John Minor Wisdom, authored the Borel v. Fibreboard decision.
Judge Wisdom held that workers at construction sites could recover from manufacturers for injuries linked to building materials that contained asbestos fibres. No one had an inkling of the immense legal and economic implications of this decision. No one foresaw that asbestos litigation would assume such monstrous proportions.
In other words, I do not believe that anyone foresaw in Borel a major shift in American law – a shift away from the basic requirements to prove a legal claim.
Twenty years after Borel – and more than a decade ago – the scope of asbestos litigation was alarming enough to prompt Chief Justice Rehnquist to appoint an ad hoc committee of the United States Judicial Conference to study it. The committee reported back that asbestos litigation was already becoming “a disaster of major proportions”. It predicted “the worst is yet to come”.
Truly prophetic words.
By 1999, the Supreme Court had to employ unusually strong language to call attention to an “elephantine mass of asbestos cases”. That disaster, long described by the nation’s highest court, is now upon us. The worst is here.
In the midst of this crisis, I do not minimize the human tragedy caused by asbestos. People are injured and dying from exposure to asbestos. They deserve a system that efficiently and fairly compensates them. They do not now have such a system.
For every sick claimant who sues, there are many more claimants seeking money who are not sick. Asbestos litigation now stands as the only part of our tort system in which people who can show no real physical injury are routinely allowed to sue.
It is not right that healthy plaintiffs overwhelm the courts in such numbers that many mesothelioma cancer victims will not live to have their day in court.
It is not right that legitimate and frivolous claims are grouped together in massive inventories at the expense of due process.
It is not right that defendants must pay persons not actually hurt – or not hurt by them.
But the most visible damage caused by the asbestos litigation crisis is to our economy. These suits have driven more than 50 American companies into bankruptcy, from small manufacturers to Fortune 500s. With all the original defendants now bankrupt, a wider net is being cast for fresh defendants with deeper pockets. So lawsuits are targeting companies that never manufactured any asbestos-containing materials, but only had some peripheral involvement. Several thousand companies are now targets of this litigation. Thousands of innocent employees have lost their jobs; thousands of innocent employees have suffered huge losses in their retirement plans; thousands of innocent shareholders have seen their investments reduced or destroyed.
The costs are staggering. Some experts predict that asbestos liability could cost companies $275 billion. That amount exceeds current estimates of the cost of all Superfund clean-up sites combined, Hurricane Andrew or the September 11th terrorist attacks.
Asbestos had not been widely used for decades. So why are these costs so high? It is because the number of claimants is expanding exponentially, contrary to medicine and common sense. The RAND Institute for Civil Justice reports that 500,000 claims have been filed, not to mention untold numbers of potential claims that may have been settled before filing. Over 200,000 claims are pending. At such a rate, the total number of filed claims could top two-and-a-half million. This confounds the experts, who – going by the actuarial tables – expected declining numbers of cases by now.
Claims are multiplying because courts are permitting unimpaired people to pursue claims against many defendants, including many which had little or no involvement with the claimant. And this development brings us to the highest cost of all – the loss of due process and simple justice.
Consider the asbestos plaintiff in a Mississippi courthouse who admitted that, far from suffering from a shortness of breath, he exercised by walking three to four miles a day. You might think the judge would put the brakes on such a case. If so, you’d be wrong. This man and five others won one of the highest jury awards for 2001 – some $150 million, $25 million each.
One effect of such judgements is that huge pay-outs to the healthy force beleaguered asbestos defendants in bankruptcy to pay only pennies on the dollar to the genuinely sick people they were meant to serve. After transaction costs and fees for both plaintiff and defence lawyers, only about one-third of the money spent on asbestos litigation reaches the claimants. And remember – the sick ones have to split this money with the vast majority of claimants who are not sick.
Former Chief Justice Conrad Mallett of Michigan testified before Congress that “the rush of non-impaired cases diverts the limited resources of defendants away from compensating the victims of asbestos-related disease – including, tragically, cancer cases ….”
In one Supreme Court opinion, Justice Breyer recognised that “up to one-half of asbestos claims are now being filed by people who have little or no physical impairment.”
The system is so cruel to the sick that one lawyer for genuinely ill patients sent an indignant letter to his fellow asbestos plaintiff lawyers. Of the influx of new cases, he wrote: “Whether the explanation is fraud, physician incompetence, or failure of recollection by claimants, I do not know. What I do know is that this claimed epidemic of the 21st Century “asbestosis” cannot possibly be real”.
So our Judicial System is failing the people who really need it. And in the process, our judicial standards are slipping – badly.
Asbestos cases, like water running downhill, seek the lowest level. Asbestos plaintiff lawyers file frivolous cases in the few jurisdictions where defendants consistently face an uneven playing field. It is sad to say that some of our courts tolerate this crass venue shopping.
In one notorious Mississippi county, the number of plaintiffs filing lawsuits over a recent five-year period was more than double the entire population of the county. In fact, Mississippi – with 1 percent of the U.S. population, is hope to approximately 20 percent of pending asbestos claims. Mississippi, where it costs more to settle cases, has been called the haven of jackpot justice.
But I don’t mean to single out Mississippi. Other states are close behind.
Beyond venue shopping, there are other abuses in certain state courts handling asbestos cases.
Some courts permit product identification, from decades-old memories, that smacks of witness coaching.
Some courts permit the bundling of claims, so that the claims of relatively few sick plaintiffs can be used as leverage to extract payments for thousands of meritless cases.
Some courts permit, in the name of efficiency, standards of causation that are so relaxed that practically anyone could be named a defendant.
Some courts then limit these defendants’ discovery rights. In a case originally naming 36 defendants, a Texas trial judge set 22 claimants for trial. Immediately before trial, the judge allowed defendants a mere five minutes for each plaintiff’s product identification deposition – in open court while the other plaintiffs listened. The judge ordered this procedure even though some of the plaintiffs had given previous statements that they could not identify the products of the two remaining trial defendants. Not surprisingly, this procedure utterly polluted the testimony of the remaining plaintiffs, allowing them to “refresh their recollections”, or worse, after listening to the first plaintiff who was well prepared and able to identify the defendants’ products. Under additional time pressures during trial, the judge informed the parties that each plaintiff would be on the stand for no more than 30 minutes, including both direct and cross-examination. The jury ultimately returned a verdict of $35 million, $1.6 million for each plaintiff, none of whom had cancer.
Why do some courts foster injustices like these?
I understand the pressures and difficulties of trying to manage an overflowing docket. I think Justice Mallett explained it well in his testimony before Congress. He said:
“Think about a county circuit judge who has dropped on her 5,000 asbestos cases all at the same time …. [I]f she scheduled all 5,000 cases for one week trials, she would not complete her task until the year 2095. The judge’s first thought then is, ‘How do I handle these cases quickly and efficiently?’ The judge does not purposely ignore fairness and truth, but the demands of the system require speed and dictate case consolidation even where the rules may not allow joinder”.
Under pressure from plaintiff attorneys, some judges have fallen into the trap of thinking about the process, while forgetting that justice is the goal that the process is meant to serve. They have allowed lawyers to transform them into claims processing machines.
What can we do to restore fairness to this system?
One obvious solution would be federal legislation that would impose fair and reasonable standards. Such a national solution is certainly warranted. After all, asbestos litigation is hardly a local problem – it is a national crisis. That is why the U.S. Supreme Court, as well as the lower courts, has urged Congress to enact such legislation.
And I hope Congress will act. But the Supreme Court has been calling for this solution for years now. We should not hold our breath or count the days.
What should we do? I remember, back in my days as a federal judge, how Congress took too long to address the violations of the civil rights of millions of Americans. Despite its duty to protect constitutional rights under Section 5 of the 14th Amendment, Congress failed to act. Judges, then as now, could have waited for Congressional action.
Instead, federal courts began to render judgments in civil rights cases years before Congress finally took a stand and enacted the Voting Rights Act.
I say that this is another instance in which judges can no longer afford to wait or close their eyes to what is happening.
Judge Joseph F. Weis, Jr. of the Third Circuit Court of Appeals, puts our choice in stark terms:
“Courts should no longer wait for congressional or legislative action … Mistakes created by courts can be corrected by courts without engaging in judicial activism. It is judicial paralysis, not activism, that is the problem in this area.”
In my view, there are five specific steps courts should take now.
First, mass X-ray screenings have driven the flow of new asbestos claims by healthy plaintiffs. Medical audits by independent experts have shown that high percentages of claimants have little or no impairment. In one notorious case, only 16 out of the 439 tireworkers that had filed lawsuits, or 3.6%, exhibited chest abnormalities that could have resulted from asbestos.
Plaintiff lawyers advertise these mass screenings as “free”, often with the implication that there is a health-related reason for the screening. This implication is false. There is no medical purpose for these screenings. Plaintiff law firms employ these physicians, who rarely establish a doctor-patient relationship with screened workers. Often, no physician prescribes or supervises these X-rays. Unregulated X-rays are a danger to the men and women who are screened.
In one case, Adams v. Harron, a physician employed by a West Virginia law firm notified the lawyers that he detected signs of lung cancer on the X-ray of a man who was screened. Neither the law firm nor the doctor notified Mr Adams or arranged any medical follow-up or treatment. One year later, he was diagnosed with lung cancer, and died shortly thereafter.
Like the physician in this case, many doctors who interpret X-ray film from screenings expressly disclaim any doctor-patient relationship with the people whose X-rays they read. Put another way, certain doctors are unwilling to stand by their limited “opinions” for fear of malpractice liability, but courts routinely accept these unreliable X-ray interpretations in litigation. I believe that X-rays are best left to the practice of medicine, and that proper medical standards should not be abandoned simply to generate lawsuits.
Human health should not be traded as a commodity or played as a poker chip. Our courts should put an end to mass X-ray screenings. When new cases are filed that were generated by a mass screening, the court should open an inquiry into:
* Whether the X-rays were properly prescribed and supervised by a physician;
* Whether there was proper disclosure of the real purpose of the screening;
* Whether the use of the X-ray machines complied with state and federal law; and
* Whether there has been a genuine diagnosis by a licensed physician of an asbestos-caused disease.
Cases based on screenings that do not meet these tests should be dismissed.
Second, the vast majority of asbestos plaintiffs today are either healthy or they suffer from medical conditions not caused by exposure to asbestos. Some state courts – notably in Pennsylvania – have held that plaintiffs who do not suffer some physical impairment caused by asbestos are not entitled to maintain an asbestos lawsuit. This may sound like common sense, but in some states the application of common sense seems to be missing.
In my view, unless people suffer a physical impairment, they have not suffered legal injury. They have no basis to sue. Unimpaired plaintiffs should see their cases dismissed or placed on an inactive court docket – a strategy adopted by Judge Charles Weiner of the Eastern District of Pennsylvania. This move tolls the statute of limitations so people can still sue if a disease should later develop.
This pragmatic rule should now be adopted by state courts.
Third, some plaintiffs claim to have an asbestos-related disease based on testimony by so-called “medical experts”. Generally, these medical experts never treated the plaintiffs, and the testimony of these experts usually would not be accepted as reliable by most physicians.
One federal judge in Cincinnati dealt with this problem by appointing independent experts. After these experts determined up to 65 percent of claims before the court were invalid, these cases were dismissed. More courts should follow this good example.
Fourth, a key issue in asbestos cases is whether plaintiffs can prove that they were exposed to asbestos fibres for which a particular defendant was responsible. We need to get beyond the mentality that any defendant will do whether associated with the product in question or not.
The courts also need to crack down hard on witness coaching. Judges need a clear sense of reality when they hear an elderly plaintiff confidently testify about events – not important at the time – that took place so long ago.
Finally, the courts need to return to fundamental tort principles and require individualised treatment of cases. It is telling to me that many asbestos plaintiff lawyers use the name “inventory” for the people they represent.
“Inventory” not “clients”.
Many courts now permit the asbestos plaintiff lawyers to aggregate their “inventory” in order to pressure defendants to resolve cases in bulk. These defendants are forced to settle with masses of plaintiffs who are not sick in order to avoid trial against a few plaintiffs who are. This offends the most fundamental rule of legal ethics – loyalty to each individual client.
“Inventory” treatment of claims also violates the fundamental rights of defendants to due process of law. The courts should not permit clients to be treated as “inventory”, as though they were inanimate objects. Courts should not permit defendants to be coerced to settle frivolous cases in order to settle good ones.
In short, our courts should:
* Dismiss cases based only on mass X-ray screenings;
* Adopt Judge Weiner’s rule requiring physical impairment;
* Appoint independent medical experts;
* Require pre-trial, credible identification of specific products; and
* Restore integrity and fairness by returning to fundamental tort principles
Asbestos litigation is not a special branch of the law in which customary rights and legal rules to not apply. It should not be treated as if it were.
The system is in disrepair, but it is not beyond repair. If we return to principles of simple justice and due process, the asbestos litigation will be brought under control and this will be the last decade of the asbestos crisis. Until then, lawyers and non-sick claimants will continue to benefit from the asbestos litigation at the expense of sick plaintiffs, innocent employees and shareholders, and American businesses.
Abraham Lincoln often described our democracy as the heritage of all peoples, in all lands, for all time. Our Judicial System has long been a part of our democracy most admired and emulated around the world. Yet today, many of America’s admirers can only look at our tort system and shake their heads in disappointment and disbelief.
We must uphold the integrity of American jurisprudence.
We must uphold the belief that America is an example of fairness and equal protection under the law.
We must uphold the law.
Sometimes this is not easy. Sometimes it takes courage. This is one of those times.
It is the ethical duty of lawyers and judges not only to maintain, but to improve, our system of justice. Judges have the responsibility to take the lead.