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The controversy over defrocking the state rock is now truly an international story after the Voice of America ran a piece about this issue. Here's a key quote from the article:

"Critics are also suspicious of the one of the bill's endorsers. The group Consumer Attorneys of California is backing (Sen. Gloria) Romero's bill, and skeptical opponents say trial lawyers are hoping to publicize and expand their asbestos-related lawsuits."

You can read the article - and view the video version of the story - here. You can read selected articles and blog posts on the controversy here.

Following are selected articles, editorials, Websites, and letters to the editors about efforts by the trial lawyers to use legislation to defrock the state rock to make it easier to file asbestos-related lawsuits. This section will be updated as new articles appear.

News Media Articles

The irrational fear of our state rock
Los Angeles Times July 27, 2007
Fear is a wonderful thing. It keeps us alive. But it also can lead us to spend money and time and other precious resources in silly and inefficient ways. Let's set aside the charge that a state legislator could spend her time more wisely than promoting a law to drop the state rock (from statedom, not the top of her opponent). More.

Californians Debate Fate of Official State Rock
Voice of America July 26, 2007
Romero is sponsoring the bill to revoke serpentine's status as the state rock. Critics like George Rossman say that is a waste of time. A mineralogist at the California Institute of Technology, Rossman says serpentine is only dangerous if you grind it up and inhale the particles. More.

Rock stuck in a hard place
San Francisco Examiner, July 7, 2010
Decades after California led the nation in celebrating its geological riches by designating a state rock, serpentine's heady official status could be stripped away by lawmakers. California is on the verge of dumping serpentine as its official state rock because of health concerns that arise when asbestos, which occurs naturally in serpentine, is ground up and inhaled.... The legislation, however, has baffled geologists and minerals aficionados. "The rock itself is benign -- unless you happen to be caught in an avalanche or get hit in the head by somebody throwing it," California State Geologist John Parrish said. More.

Dan Walters: California state-rock bill has serpentine agenda
Sacramento Bee, July 9, 2010
...There is, however, more than symbolism in Sen. Gloria Romero's Senate Bill 624.
Its declarations, geologists say, are scientifically incorrect. And if it's enacted, it could open new avenues for litigation, which explains why lawyers who pursue asbestos suits are pushing it. More.

California May Drop Its Official State Rock
New York Times, July 13, 2010
LOS ANGELES -- Empirically speaking, geologists are not a particularly irascible group. But those who make their living studying rocks, minerals and gems in California -- and increasingly those scientists beyond the state's borders -- are enraged over a bill in Sacramento that would knock serpentine, the official state rock, off its mantel. The lawmaker and others who would like to see serpentine stripped of its title say the olive green rock found all over the state is a grim symbol of the deadly cancers associated with asbestos, which can be found in the rock. Geologists, who have taken to Twitter on behalf of the rock, assert that serpentine is harmless and is being demonized by advocates for people with asbestos-related diseases and possibly their trial lawyers, too. More.

Calif may dump 'state rock' that contains asbestos
Associated Press, July 15, 2010
In 1965, California lawmakers named serpentine the state rock because it symbolized the Gold Rush years and contained a mineral being put to myriad industrial uses. Nearly half a century later, attitudes toward that mineral -- asbestos -- have changed, and one state lawmaker wants serpentine stripped of its status. More.

Californian health lobby sets sights on state rock
The Independent (U.K.), July 16, 2010
Once upon a time, California's energetic public health lobby concentrated on trying to stop people from smoking, or drinking beer, or from making a daily pilgrimage to their local fast-food restaurant. Now, having presumably run out of other things to ban, they have launched a crusade against a naturally occurring green mineral. Politicians in Sacramento, the state capital, are on the verge of approving a motion to strip serpentine of its status as California's official "state rock", on the grounds that it can contain chrysotile, a type of asbestos believed to cause an incurable form of cancer called mesothelioma if its dust particles are inhaled. ... "There is no way anyone is going to get bothered by casual exposure to that kind of rock unless they were breaking it up with a sledgehammer year after year," Malcolm Ross, a former employee of the US Geological Survey, told The New York Times. "If they keep the asbestos issue bubbling, it means money for politicians, money for lawyers and money for scientists to investigate." More.

Geologists protest bill to remove state rock
San Francisco Chronicle, July 16, 2010
It takes real effort to impugn the reputation of an inanimate object, but there is a movement gaining traction in Sacramento to strip the California state rock of its lofty title for what geologists say is a trifling offense: It contains asbestos. The stone in question, serpentine, has been the state rock since 1965, but a group led by Sen. Gloria Romero, D-East Los Angeles, wants it removed from the symbols list because it often contains the carcinogen linked to 2,500 deaths a year in the United States. Romero has introduced SB624, which would strip the olive green stone of its title, but she is now running up against a gaggle of geologists and natural history buffs who have removed their spectacles, thrown down their lab coats and are rallying to the rock's defense. More.

Lawmaker seeks to defrock 'toxic' official state rock
BBC July 17, 2010
A California lawmaker hopes to remove serpentine's designation as the state's official rock. The olive green rock contains traces of asbestos, and the lawmaker says taking away its status will raise awareness of diseases linked to asbestos. "California should not designate a rock known to be toxic to the health of its residents as the state's official rock," proposed legislation states. Geologists have protested against the move, saying the rock is harmless. More.

PD Editorial: The state rock - Bill to defrock state rock brings more intrigue to Sacramento
Santa Rosa Press Democrat, July 21, 2010
Chances are most Californians don't know that we have an official state flower (the golden poppy). There's a state dance (western swing), not to be confused with the state folk dance (square). And there are about 30 other officially sanctioned, and equally trivial, symbols, a list that includes a state insect (the California dogface butterfly) and not one, but two state ghost towns (Bodie and Calico). There's also a state rock. That fact probably escaped most of us, too, with no harm done. But if you've been following the news, you know that trial lawyers, cancer patients and geologists are fighting over the fate of serpentine. More.

Editorial: State stones will break your bones
Monterey Herald, July 23, 2010
The midsummer political doldrums often generate a series of inanities and silly tempests, nonstories that can keep the talk-show hosts in full rant. This year's silliness is the quarry quarrel arising from serpentine, the ubiquitous rock of this age, the stone that can be found in 42 of California's 58 counties, the metamorphic phenomena that has long boasted proudly of its status as the state rock. ... The bill now sits on the Assembly floor, like a hard consolidated mineral matter, generating howls of protest from all quarters. Tort reform advocates hate the bill because they think it will open the door to more asbestos litigation. Rock hounds and geologists believe that serpentine is getting a bad rap, that it is no less dangerous than scores of other native California rocks that contain asbestos. We welcome the full debate on the issue -- just as soon as the state can resolve more pressing issues. Like, for instance, its $19 billion deficit. More.

Website and Blog Posts

SB 624 Senator Romero's Lies (and more lying liars that tell them)
Minerals expert Justin Zzyzx, July 24, 2010
Enough of us being just upset about SB-624, it is just time to call them out for the lies. With all of the evidence being put forth, the sheer amount of Geologists, Botanists and Learned men and women speaking out against this issue and the crazy amount of negative press and public comment, they STILL hold fast to this bill. More.

Serpentine - SB 624, Senator Gloria Romero and ADAO
Minerals expert Justin Zzyzx, July 5, 2010
On July 2nd I received an email from the office of Senator Romero, instructing me to call Linda Reinstein - bill sponsor and CEO of ADAO, the non-profit awareness group dedicated to stamping out Asbestos. I was being instructed to discuss this issue with someone who has all the information available, but cherry picks to prove her undeniable fact; Inhaled fibers can cause cancer. This is the fact I knew I was going to hear and indeed, while Mrs. Reinstein is a very nice lady, any scientific inquiry I gave her would be met with the reply, inhaled fibers can cause cancer. More.

Something Doesn't Feel Right About This: The Serpentine Issue in California
Garry Hayes, Geology instructor, Modesto Community College, July 2, 2010
The more I read about this, the more disturbed I become. Andrew Alden gets right to the point about the very strange goings-on in the California legislature while they avoid working out the state budget. Senate Bill 624 would remove serpentine as the California State Rock, and declare in effect that serpentine is a dangerous mineral. The declaration could very well be legally binding, possibly leading to lawsuits for anyone who uses serpentine as a building stone or a classroom sample. For a short bill, it is full of inaccuracies and misstatements of fact. I wrote about this the other day, and as I have learned more, I am concerned that we are being conned in the name of a tragic disease. Somebody may be making an underhanded political move with the intention of making a lot of money. If this isn't true, the parties are welcome to respond. More.

Throwing the Baby Out with the Bathwater: The Serpentine Issue in California
By Garry Hayes (The Daily Kos, July 8, 2010)
The California legislature is about to strike an unfortunate blow at education, and apparently not one of the legislators, Democratic or Republican, seems aware of it. Senate Bill 624 would remove serpentine as the state rock of California, and furthermore would declare the rock to be dangerous to the health of state residents. The bill, short as it is, contains several factual errors, and instead of being "uncontroversial" as one assemblyperson put it, may open up the state and residents to litigation. Serpentine is not a toxic rock. It sometimes contains the fibrous mineral chrysotile asbestos, but chrysotile asbestos is not the form of asbestos that is proven to cause mesothelioma and lung cancer. More.

The Law Against Serpentine: The Attorneys' Arena
Andrew Alden, About.com, July 12, 2010
At About.com, I have celebrated serpentinite (the rock commonly called serpentine) for many years as a rock-lover. I'm upset about California's Senate Bill 624, which removes serpentine as the state rock, as a rock-lover. That's an educational issue. But the Civil Justice Association of California, conservative group that works against its idea of frivolous lawsuits, recognizes the legal havoc that SB624 could cause. In fact, I recognized it myself yesterday as I visited the Oakland Museum of California, where serpentinite boulders are part of the decor. Once a panicked parent complains about serpentine, when even the idea of such a complaint arises, educational institutions will be pulled unwillingly into this legal/political battle. SB624's sponsors are mesothelioma lawyers setting a trap by having the state declare that serpentine, in and of itself, is a carcinogen. This will allow them to rack up billable hours in court whenever anyone--a landowner who wants to shut down a noisy historic railroad line, the owner of a rural hilltop palace who wants developers out of his viewshed, opponents of a new highway--is willing to invoke the "A-word" asbestos on their behalf. More.

Official Serpentine Rock Awareness Facebook Page
California Serpentine Awareness! Keep our Rock! Fight SB 624
http://www.facebook.com/home.php?#!/group.php?gid=132118583490156&ref=mf

Letters to the Editor/Story Comments
Joan K, SF Gate, June 27, 2010
This is a bill with no basis in science . Serpentine is not a single mineral, but rather a family of minerals that all share common traits in elemental structure, over 20 as of 2010. There are all kinds of serpentine minerals found all over the earth; chrysotile, the dangerous form of asbestos, is not found in all of the deposits or even most of the deposits. Chrysotile is indeed dangerous when it is crushed up into dust for industrial use. In the ground it proves little to no risk to man or animal. SB 624 as originally introduced by Senator Gloria Romero of East Los Angeles addressed issues regarding solid waste. The bill was later morphed into anything having to do with serpentine, making it potentially actionable in court. That means that one could start tort on crushed stone quarries that mined chrysotile-free Serpentine, and thus affect many other businesses. The bill as now introduced is heavily supported by the asbestos litigation industry - don't support it, as it do.... More.

John M. Stolz, civil engineer, Foster City, SF Chronicle, July 3, 2010
Senate Bill 624 incorrectly characterizes one of the most commonly excavated rocks in California as a carcinogenic. If passed, this nonfact will become fact. I am concerned that it could require all serpentine to be excavated as if it were a carcinogenic material. This will substantially and unnecessarily increase the cost of construction. For public works contracts, this means unnecessarily higher costs to taxpayers. The text of SB624 declares that serpentine contains chrysotile asbestos and that exposure to it increases the risk of the cancer mesothelioma. This is a nonfact. Serpentine is a general name given to magnesium iron phyllosilicate minerals, and it can refer to any of 20 varieties. There are three polymorphs (or kinds) of serpentine: antigorite, chrysotile and lizardite, but only chrysotile contains asbestos. By erroneously stating that all serpentine contains chrysotile, it's a short step to requiring all serpentine to be handled and disposed of as a hazardous material - whether it actually is or not. Please derail this well-meaning but ludicrously inaccurate and dangerous bill from becoming law. More.

Unfit to rule, Richard. J Stenquist, Kensington, SF Chronicle, July 17
I can't decide whether I should laugh, cry, or get so mad I could spit asbestos. Democratic Sen. Gloria Romero's waste of time and effort in introducing legislation to "strip the California state rock (serpentine) of its lofty title" because it contains asbestos is a stunning demonstration of why just 16 percent of Californians approve of how the legislature is doing its job. Further, she immediately becomes a prime example of why Democrats cannot seem to become worthy of being a majority party - too many of them are blithering idiots. I'll bet Rush Limbaugh gritted his teeth with pleasure when he read about this, and Sarah Palin probably wrote a note on her hand to use the item in her next speech. More seriously, everybody knows that California is in serious straits financially. The California Legislature is the entity principally responsible for solving those problems. Why, oh, why, on God's asbestos-polluted earth, would they waste time arguing about a rock? More.

Wasting time on rock, Sal Scarpato, Westlake Village, Ventura County Star, July 19, 2010
At a time that the state is financially broke and the legislature is unable to reach a realistic budget solution, State Sen. Gloria Romero has disgraced herself by wasting the legislature's time and the taxpayers' money trying to change the state rock. Even if the bill becomes law, what possible impact could it have? Will serpentine just disappear from the ocean floor, from our mountains or from our fruited plains? Serpentine in the ground has no impact on human health. Only mining and refining serpentine releases asbestos fibers into the air, and that activity is already heavily regulated. How much clearer could it be? Another legislator bought by special interests! The best outcome would be the bill voted down with Sen. Romero successfully recalled. At the very least, the voters should turn her out of office at the next election. More.

Lots of news to report today on the ongoing controversy to defrock the state rock and at the same time make it easier for trial lawyers to file more lawsuits over naturally occurring asbestos.

First of all, CJAC is now officially opposed to the bill, SB 624:

TO: Members of the California Assembly
FROM: John H. Sullivan, President
RE: SB 624 (Romero)

The Civil Justice Association of California must respectfully oppose Senate Bill 624 (Romero).

This proposal, originally dealing with solid waste management, was amended in May to remove the designation of serpentine as California's state rock. The basis for the bill is stated emphatically in a legislative "finding" which members of California's scientific community strongly point out is "full of inaccuracies and misstatements of fact." (Modesto Community College geology professor Garry Hayes, former president of the National Association of Geoscience Teachers, Far Western Section http://geotripper.blogspot.com/2010/07/something-doesnt-feel-right-about-this.html )

We believe SB 624, if enacted into law, will be used in an attempt to justify naming additional blameless public and private defendants in asbestos litigation. Out-of-state plaintiff law firms specializing in asbestos litigation have been moving to California to take advantage of our evidence and forum rules. This litigation is already placing an unjustified burden on our trial courts, most notably in San Francisco and Los Angeles. (See legal articles on CJAC website, for example: http://www.cjac.org/blog/2009/07/the-any-exposure-causation-the/ and http://www.cjac.org/blog/2009/11/california-home-of-the-asbesto/ )

We have no position on whether serpentine or any other mineral should be California's state rock, or whether the state should even have one. But should the matter be dealt with, doing so should not be based on bad science that inspires bad law.

Therefore, the Civil Justice Association of California must oppose SB 624 and urges your "No" vote.

Second, the Gray Lady Herself, the New York Times, weighs in with a great article today about the controversy.

The lawmaker (Senator Gloria Romero, D-Los Angeles) and others who would like to see serpentine stripped of its title say the olive green rock found all over the state is a grim symbol of the deadly cancers associated with asbestos, which can be found in the rock. Geologists, who have taken to Twitter on behalf of the rock, assert that serpentine is harmless and is being demonized by advocates for people with asbestos-related diseases and possibly their trial lawyers, too.

The article goes on to quote Dr. Malcolm Ross, a geologist who retired from the U.S. Geological Survey in 1995.

"There is no way anyone is going to get bothered by casual exposure to that kind of rock...unless they were breaking it up with a sledgehammer year after year."

Dr. Ross and other opponents of the bill are concerned that removing serpentine, which is occasionally used in jewelry, as the state's rock would demonize it and thus inspire litigation against museums, property owners and other sites where the rocks sit; they cite the inclusion of a letter of support from the Consumer Attorneys of California with the bill as evidence.

"If they keep the asbestos issue bubbling," Dr. Ross said, "it means money for politicians, more money for lawyers and money for scientists to investigate."

Our point exactly.

Finally, geologists and other fans of serpentine have launched a couple of online efforts to save the state rock. You can find posts on Twitter by using the #CAserpentine hashtag, and you can now join a save the rock Facebook group.

Sacramento Bee columnist Dan Walters has found some interesting things when picking up the rock that is SB 624, a bill ostensibly designed to remove the designation of serpentine as California's official state rock because it can contain a form of asbestos.

Walters' column today points out the obvious: when the trial lawyers are involved, there's money behind the measure.

There is, however, more than symbolism in Sen. Gloria Romero's Senate Bill 624.

Its declarations, geologists say, are scientifically incorrect. And if it's enacted, it could open new avenues for litigation, which explains why lawyers who pursue asbestos suits are pushing it.

Walters reports that geologists say that most serpentine doesn't even contain asbestos.

The problem with SB 624 is that it flatly equates serpentine with deadly asbestos even though geologists say that's incorrect. Geology websites have been buzzing with the criticism, pointing out that while serpentine rocks may contain chrysotile, most do not.

"It occurs in serpentine sometimes," says Garry Hayes, a Modesto Junior College geology teacher and former regional president of the National Association of Geoscience Teachers.

And more to the point, he says there's a reason the trial lawyers' lobbying group and two high-powered law firms specializing in suing over asbestos-related health problems are supporting the bill.

Were SB 624 to become law, declaring serpentine as carcinogenic, it could widen the opportunities for lawsuits against owners of property with naturally occurring outcroppings of serpentine. And it's become a new skirmish in the perennial war between personal injury lawyers and the business-backed Civil Justice Association of California.

"I've heard that personal injury lawyers will leave no stone unturned in their hunt for new cases, but this is ridiculous," said John Sullivan, the association's president.

If you read the column online, be sure to scroll down to the comments section. It's always heartening to find that many people understand the problems that lawsuit abuse cause to the economy and to Californians.

We realize that many people have been focused on the passage of the heath care reform bill during the past week or so, so you may have missed The Wall Street Journal article last week that told the tale of a pair of trial lawyers who were found guilty by a federal jury in Mississippi of corruption in regards to an asbestos-related lawsuit. You can read more about it here

You might have also missed a letter to the editor by CJAC President John H. Sullivan that appeared in today's WSJ, pointing out that the asbestos lawyers picked the wrong state to do business in. Unfortunately, California's legal system encourages bad behavior. Here's the letter in its entirety:

Out here in California we see fraud-convicted Mississippi asbestos lawyers ("Asbestos Turnabout," Review & Outlook, March 18) William Guy and Thomas Brock simply guilty of bad timing and picking the wrong state to double-dip for damages.

Here they could have sued, collected and then gone after duplicate compensation from one of the many bankruptcy trusts already set up by defendants.

That way there would be no chance of courtroom disclosure and no repercussions when they made their second scoop.

Other asbestos lawyers know this and are making about the only business in-migration California is seeing these days.

Judges in larger counties here, where asbestos cases eat up the civil calendar and courtrooms go dark one day a month in the budget crisis, are beginning to sense the injustice and extra workload fostered by the double-dip scam.

John H. Sullivan
President
Civil Justice Association of California
Sacramento, Calif.

A sign of things to come? A Los Angeles jury has turned down an asbestos plaintiffs' lawyer's suggestion to award his clients $25 million in noneconomic damages and $1 million in economic damages.

Instead, the jury came back with a defense verdict in an asbestos case that lasted seven weeks and had started with eight defendants before five settled out, according to The Recorder legal newspaper's Kate Moser.

The plaintiffs, represented by Gary Paul of Waters, Kraus & Paul, had originally sought more than $9 million. The firm, formerly called Waters & Kraus, was mentioned in an opinion piece published recently in the Daily Journal legal newspaper about how out-of-state plaintiffs' firms that file high-dollar asbestos claims are opening offices in California. According to the op-ed, "Dallas' Waters & Kraus, which opened a small Los Angeles office in 2001, has been described by a Daily Journal reporter as having a 'prominent presence' since its 2006 merger with the plaintiffs' firm Paul & Janofsky." Gary Paul was installed over the summer as vice president of the national plaintiffs' lawyers' lobbying group.

The firm has also been criticized for tactics employed in some California cases. Los Angeles Superior Court Judge Aurelio Munoz has sharply criticized the firm for repeatedly filing cases in Texas, dismissing them, and then re-filing them in Los Angeles -- all in an apparent effort to play what he termed the "grisly game of asbestos litigation."

Meanwhile, according to the Recorder article, the plaintiffs in the asbestos case had asked the jury to make the three remaining defendants, Daimler Trucks North America, Ford Motor Co., and Kaiser Gypsum Company Inc., 35% responsible for the $25 million in noneconomic damages. The trio would have been jointly and severally liable for the economic damages.

The jury found that William James Goebel, who died at age 78, was exposed to asbestos from Kaiser Gypsum and Ford, but that there was no defect in the design of those defendants' products. The jurors concluded Goebel was not exposed to asbestos from Daimler Trucks.

Defense-side lawyer Eliot Jubelirer, also not involved in the case, wondered whether the plaintiff had asked too much.

"I think the plaintiff lawyers are testing to see how large an award they can ask for without the jury rejecting it," Jubelirer, a partner in the San Francisco office of Schiff Hardin, told the paper. "Perhaps they overstepped the line here and asked for too much and they may have soured the jurors."

Out-of-state plaintiffs' firms that file high-dollar asbestos claims are opening offices in California. The state's plaintiff-friendly asbestos litigation rules, combined with recent legal reforms in other states, are drawing big-name asbestos firms to the Los Angeles and San Francisco courts, where big-dollar success beckons.

The issue of out-of-state firms, growing asbestos dockets, and "litigation tourists" was explored in an op-ed published in the Daily Journal legal newspaper by Mark Behrens and Phil Goldberg of Shook Hardy & Bacon in Washington, D.C.

What is happening in California stands in stark contrast to national trends: Unlike other states, California has not enacted reforms to stem abuses in asbestos litigation, Behrens and Goldberg wrote. Observers of asbestos litigation have noticed a surge in asbestos-related lawsuits.

They wrote:

"These firms are not setting up shop in California because they like the weather. Historically, lawyers who represent plaintiffs in asbestos-related lawsuits have strategically flocked to places they believe will give them a tactical advantage, rather than file where there is a logical and factual connection to a claim or claimant. Such claimants have been called 'litigation tourists' -- and they are many in California. A 2006 sample of 1,047 asbestos plaintiffs in California for whom address information was available showed that an astonishing 30% had home addresses outside of California."

Former defense lawyer Patrick Hanlon, now a lecturer at the University of California, Berkeley's Boalt Hall School of Law, noted that "plaintiffs' firms are steering cases to California, partly to the San Francisco-Oakland area, which is traditionally a tough venue for defendants, but also Los Angeles, which was an important asbestos venue in the 1980s but is only recently seeing an upsurge in asbestos cases."

The spike in asbestos litigation costs Californians tax dollars to administer the out-of-state claims and places a burden on the state's judicial system.

The piece can be found here (subscription only) or by clicking the link below.

Home of the Asbestos Litigation 'Gold Rush'.pdf

San Francisco Superior Court has announced a proposal to create a single asbestos department that would, observers say, streamline the litigation process, result in more consistency, add accountability, and result in savings for defendants and plaintiffs.

It would also help to reduce the number of jury panels that are wasted when cases are settled before trial, according to a story by The Recorder's Kate Moser.

She cites a shocking number: In 2008, asbestos cases consumed almost half -- 45% -- of jurors summoned for civil trials.

The asbestos department would hear all discovery, law and motion and case management matters. Judge Harold Kahn has been tapped to oversee the department. A hearing on the proposal is scheduled for November 17.

Meanwhile, a number of opinion pieces published in statewide legal papers have examined problems with asbestos litigation in California.

They include:

• An op-ed that tells how simple changes in how courts handle asbestos cases might be able to help them carve a day or more from their workloads;
• A piece that examines how claims filed by out-of-state plaintiffs clog California courts;
• A look at how California has become a magnet jurisdiction for asbestos plaintiffs, in part because its courts have not dealt with the theory that "any exposure" to asbestos is a cause of the disease;
• A piece on how defendants with little or no involvement in causing harm can get hit with a multi-million dollar judgment;
• And a look at how a new generation of asbestos trusts tempts plaintiffs' lawyers to seek double recoveries by concealing their clients' trust recoveries from tort defendants.

A new study focusing on asbestos litigation in northern California's Alameda County found that the number of defendants named in a typical complaint doubled from fewer than 30 in the 1990s to more than 60 between 2003 and 2006.

The reason, the authors found, was that as major defendants declared bankruptcy in early 2000, plaintiffs' attorneys pulled new defendants into the suits and began to name the remaining solvent defendants twice as often.

The paper, written by Charles E. Bates, Charles L. Mullin, and A. Rachel Marquardt of Bates White in Washington, D.C., and published in Mealey's Litigation Report, also examines how the emergence of trust funds has and will continue to change total recoveries for mesothelioma plaintiffs. (To purchase a copy of the report, go here.)

The authors used a sample of about 800 mesothelioma complaints filed after 1990 in Alameda County, which, they wrote, "has been one of the established venues for asbestos litigation" since the 1970s. They found that after the bankruptcy wave, the number of defendants named in complaints increased. However, since 2006, the number of defendants listed has declined, more recently to about 40 per complaint -- which makes sense, the authors explain, because plaintiffs were getting dismissed without payment on a much larger share of the defendants they named from 2003 to 2006 than they did in the 1990s.

The authors wrote:

"In fact, the rise in the number of defendants listed in a complaint corresponded to an increase in the number of dismissals. ... [More than] 70% of all post-2002 complaints against individual defendants were dismissed without payment. The dismissal rate is highest for new defendants -- companies that have been named as defendants in Alameda County in more recent years but that historically were not part of the asbestos tort environment. As the number of established, solvent defendants listed in a typical mesothelioma complaint doubled from the pre- to post-bankruptcy period, so did the dismissal rate for this group of defendants."

California's courthouses are expected to close once a month to help deal with the state's financial crisis, which could lead to new backlogs and delay civil trials. However, some simple changes in how courts handle asbestos cases might carve a day or more from their workloads.

That suggestion comes in an op-ed published in today's Daily Journal legal newspaper by Dominica Anderson and Kathryn Schultz. Anderson, managing partner of the Las Vegas office of Duane Morris, practices in both Nevada and California in the areas of insurance and business litigation with an emphasis on complex litigation. Schultz is an associate in the firm's San Francisco office, practicing in the areas of insurance litigation and appellate law.

They wrote:

"California judges in major counties are spending more time than ever on asbestos matters. This is happening as the asbestos workload in other states has been decreasing. In those states, many asbestos claims were filed on behalf of plaintiffs who may have been exposed to asbestos fibers but were not affected by an asbestos-related disease. In response, some courts established 'inactive dockets' to hold these 'unimpaired' claims and prioritize the administration of claims filed by the truly impaired. Other states require that minimum medical evidence of illness be shown in order to bring an asbestos claim. California has not followed suit, increasing the incentive for plaintiffs' firms to open shop here and bring out-of-state plaintiffs and their claims into California's courts.

"With court resources -- as well as defendants' funds -- dwindling, will those with actual asbestos-related disease be protected? Is it time for California's courts to establish some form of 'inactive docket' to conserve limited resources while maintaining court access for the truly sick?"

The authors conclude: "Without any procedural safeguards in place, the number of non-malignant claims, in which the plaintiff has no discernible impairment, will continue to rise in the state. As the nation's economy has demonstrated over the past year, dollars for vital government services can rapidly disappear. The courts should not wait until their asbestos dockets are completely overwhelmed before they act."

Docket Science.pdf

A federal judge in the Eastern District of Pennsylvania has resolved more than 500,000 asbestos claims in four months with a simple method: by ordering that each plaintiff state a specific case against each company being sued.

Legal Newsline reporter Aricka Flowers wrote: "Legal analysts say the order has made it difficult, if not impossible, for some plaintiffs to maintain their case."

As Lester Brickman, a law professor at the Benjamin N. Cardozo School of Law, explained in the article, the key to Robreno's cleanup strategy is his call for an Administrative Order Number 12, which requires the plaintiffs to produce basic information about each of their claims or dismiss the case.

Several opinion pieces published in California papers recently have explored issues with asbestos litigation in the state. Click here for details.

Every year, scores of asbestos cases are filed in California courts for injuries alleged by plaintiffs living outside California.

These cases unnecessarily clog an already-overburdened court system, impose extensive costs on this state's taxpayers, and delay California residents seeking their own "day in court," Steven D. Wasserman and Sunny S. Shapiro wrote in an op-ed published today in The Recorder legal newspaper. Wasserman is a partner and Shapiro is a senior associate in the San Francisco office of Sedgwick, Detert, Moran & Arnold, where they represent defendant companies in mass toxic tort/asbestos matters.

These problems would be alleviated, they wrote, if our courts were more receptive to forum non conveniens motions to remove cases brought by out-of-state plaintiffs for alleged injuries that occurred predominantly, in many cases almost entirely, outside of California.

Lower the Asbestos Burden on State Courts.pdf

California has become a magnet jurisdiction for asbestos plaintiffs, in part because its courts have not dealt with the theory -- regularly asserted by plaintiffs' lawyers -- that "any exposure" to asbestos is a cause of the disease.

As William Anderson, a partner in the Washington, D.C. office of Crowell & Moring LLP, explains in an op-ed in the Metropolitan News-Enterprise, the best step would be to eliminate the use of this theory in the state's trial courts by requiring evidence of a harmful dose at the summary judgment stage. (Go to www.metnews.com, scroll down to the Viewpoint section and then click on "Toxic Tort Litigation: 'Any Exposure' Causation Theory Packs California Courts With Defendants.")

Until this theory is rejected, Anderson wrote, "minimal exposure cases will continue to overrun California courts."

It's no surprise, then, that plaintiffs' firms based in other states have opened offices in California.

In April, Los Angeles Superior Court Judge Aurelio Munoz excoriated the Texas-based law firm Waters & Kraus for filing cases in Texas, which limits a plaintiff deposition to only six hours, and then dismissing and refiling in California.

Anderson wrote: "The refiling appeared to be calculated to take advantage of California's lax causation standards and extremely stringent summary judgment standards, under which defendants must essentially prove a negative -- that their product played no role in the alleged injury -- in order to win a summary judgment motion."

Click here to read how Judge Munoz blasted Waters & Kraus for their tactics.

'Any Exposure' Causation Theory Packs California Courts with Defendants.pdf

A Los Angeles case highlighted in an op-ed in the Daily Journal legal newspaper reveals a growing unfairness in California asbestos litigation. The lone defendant in the case -- which the jury agreed should bear only half a percent of blame -- ended up paying 25 times that in damages.

Edward Hugo and James Parker, partners in the firm of Brydon, Hugo & Parker in San Francisco and authors of the op-ed, wrote that this unfairness "stems from the traditional prohibition against informing a jury of the actual monetary effect of its allocation of fault."

With an average of three dozen defendants per case, asbestos litigation posts a special risk -- that a defendant with little or no involvement in causing harm can get hit with a multi-million dollar judgment.

The authors observed, "As multi-state plaintiffs' asbestos firms continue to target peripheral defendants whose products, for example, incorporated minor asbestos-containing components such as gaskets or packing made by third parties, we are seeing more California verdicts where a defendant is found to have a small degree of fault, but ends up liable for a disproportionately large share of the plaintiff's damages."

For example, they wrote, a Los Angeles jury awarded an asbestos plaintiff and his wife nearly $17 million in damages, and found the only remaining defendant 0.5% liable for the total.

The jury likely thought that at half a percent of the $17 million total, the defendant would be responsible for $85,000. But because the other parties involved were bankrupt or settled earlier, the jury's finding rendered the defendant liable for more than $2 million -- nearly 25 times the 0.5% share of "fault."

Hugo and Parker suggest California courts adopt an instruction that tells asbestos jurors the potential consequences of their verdict.

Toxic Trials - Forum Column.pdf

There's nothing new about asbestos plaintiffs' lawyers trying to manipulate the legal system. However, there is a new twist, described on the opinion pages of California's statewide legal newspaper, the Daily Journal.

A new generation of asbestos trusts, established to pay claims on behalf of bankrupt manufacturers, tempts plaintiffs' lawyers to seek double recoveries by concealing their clients' trust recoveries from tort defendants, Jacob Cohn and Joseph Arnold wrote in an op-ed published June 22.

Cohn, a member in the Philadelphia office of Cozen O'Connor's Global Insurance Group, and Arnold, an associate in the same office, examine why California's courts should level the playing field by requiring full disclosure by asbestos claimants of their claims to, and recoveries from, asbestos trusts.

Daily Journal - New Generation of Asbestos Trusts Encourages Double-Dipping.pdf

Calling its tactics a "waste of the court's time," Los Angeles Superior Court Judge Aurelio Munoz criticized a plaintiff's law firm for playing the same "grisly game of asbestos litigation" in at least nine cases.

In the trial court opinion, Judge Munoz reluctantly denied defendant Crane Co.'s motion for summary judgment, but then blasted plaintiffs' firm Waters & Kraus for its tactics, Amanda Bronstad wrote in the National Law Journal. In Judge Munoz's own words:

• "This court does not have the authority to summarily prohibit the use of otherwise admissible testimony even if the court does not approve of the games, and they are games, that are being played."

• "The main theme seems to be settle or we'll run up the attorneys' fees so high that it is cheaper to settle. Rarely do the cases go to verdict. Instead what is accomplished is a waste of the court's time, the burning of numerous jurors because of the one day one trial rules and what seems to be a type of judicially sanctioned extortion."

• "In short this is the grisly game of asbestos litigation that occurs in the courts. The court is of the opinion that it cannot grant the relief requested, but perhaps an appellate court can."

Read the full opinion here.

Asbestos litigation is on the rise in Los Angeles County, as out-of-state plaintiffs' lawyers have started to expand their firms to the southern part of the state.

That's according to a Daily Journal article (subscription only) by staff writer Cortney Fielding, who notes that: "Large plaintiffs' firms from states like Texas and Illinois, traditional hotbeds of asbestos-related activity that have been slowed by rule changes designed to make it more difficult for cases to reach trial, are now setting up shop in Los Angeles. Dallas stalwart Baron & Budd, a 50-attorney firm focusing entirely on corporate misconduct, opened up in Beverly Hills in 2007, while Southern Illinois' Simmons Cooper also has placed its only out-of-state office in nearby El Segundo.

"Another huge player, Dallas' Waters & Kraus, first opened a small Los Angeles office in 2001. But it didn't develop a prominent presence until 2006, when it merged with the plaintiffs' firm Paul & Janofsky, becoming Waters, Kraus & Paul in Los Angeles."

Experts told the paper that even though the number of claims are rising, as attorneys who might have filed in other states turn to California, it's too early to tell if it will dramatically change the landscape for plaintiffs' attorneys in Los Angeles. But the influx of plaintiffs' firms coming into the state, and specifically to Los Angeles, means there must be new profit to be had, noted Mark A. Behrens, a Washington, D.C., attorney with defense firm Shook, Hardy & Bacon.

"Common sense tells me they aren't going out there because they like the weather," he said.

Asbestos lawsuits are on the rise in Los Angeles, a Madison County judge told his local paper, The (Madison, Ill.) Record.

Judge Daniel Stack told the Record that asbestos lawsuits are rising anywhere there is an active docket, but "Los Angeles is a place that's really starting to take off."

Meanwhile, the window of opportunity for sweeping federal tort reform has effectively been shut, and plaintiffs' attorneys successfully weathered the political storm designed to reign in frivolous lawsuits, the article stated.

According to the Record, the coming years are likely to bring a series of battles for tort reform at the state level, pushing asbestos cases into courts that are more appealing to plaintiffs' attorneys. Illinois and California remain prime spots for new cases and new settlements.

"California's new gold rush is asbestos litigation," said Mark A. Behrens, a Washington, D.C. attorney with Shook, Hardy & Bacon.

Large plaintiffs firms from around the company are setting up shop in California, like Waters & Krause of Texas, and SimmonsCooper of Madison County. Proliferate television, Internet and radio advertisements expand the assets of plaintiffs' firms with scores of new clients. Behrens said judges have already acknowledged the increasing burden from a vibrant and growing asbestos docket.

Many of the plaintiffs coming to California lack and meaningful connection to the state, he said. "In a 2006 sample of 1,047 asbestos plaintiffs for whom address information was available, over 300 -- or an astonishing 30% -- had addresses outside California."

In a pair of decisions that will deny plaintiffs' attorneys a new line of attack in asbestos litigation, the Washington State Supreme Court ruled that makers of nonhazardous component parts, such as pipes or valves, have no duty to warn ultimate users about asbestos products made by others and attached to the components post-sale.

In two separate cases, the court said the defendants couldn't be held liable because they didn't make, sell, or distribute the asbestos -- only the products it was applied to, according to the Seattle Post-Intelligencer.

"Component part makers are being targeted simply because they happen to be solvent and subject to suit," said Mark Behrens, a partner at Shook, Hardy & Bacon L.L.P., Washington, D.C., according to National Underwriter. He submitted his briefs in the cases on behalf of industry trade groups that included the National Association of Mutual Insurance Companies, the Property Casualty Insurers Association of America, and the American Insurance Association.

"The Washington Supreme Court cases are significant because they are the first state Supreme Court cases to address this proposed new duty to warn," Behrens said.

The cases are Simonetta v. Viad Corp., and Braaten v. Saberhagen Holdings.

It was Detroit's Wayne County Circuit Judge Robert Columbo Jr. who threw out testimony from one Dr. R. Michael Kelly, who earned $500 a pop for thousands of medical exams that detected asbestos ailments.

But a thousand other doctors looked at a sample of the same cases -- "none saw what Dr. Kelly saw nor heard what Dr. Kelly heard," said an attorney for the company that challenged Kelly's expertise, according to the Detroit Free Press.

The attorneys said independent radiologists and their own experts found no evidence of disease in X-rays Kelly viewed as problematic, and that Kelly was misusing a breathing test machine, creating false positives.

The motion also noted that he earned $500 per exam from Bedortha's law firm, Goldberg, Persky and White, according to the Free-Press.

Columbo's ruling puts 2,131 asbestos lawsuits on his docket alone in jeopardy. The lawyers in those cases now need to find new experts to vouch for those diagnosed by Kelly.

More than a year has passed since the State Bar was requested to investigate a California law firm which was kicked out of an Ohio asbestos lawsuit for numerous ethical violations including lying to the court, providing false testimony under oath and submitting false information to bankruptcy trusts.

Shortly after Judge Harry Hanna removed the Novato, Calif.-based law firm Brayton Purcell and its attorney, Christopher Andreas, from his courtroom, the Civil Justice Association of California sent a letter to the California State Bar, requesting an investigation into whether the violations in Ohio are part of a larger pattern of conduct.

"We share your concern," Dane C. Dauphine, supervising trial counsel for the State Bar, wrote in response to CJAC's request in February 2007. "We appreciate your comments regarding the January 18, 2007, (court order), which found that a member or members of the California Bar had committed misconduct before the court."

But in a letter to CJAC in August 2007, the bar stated that it had closed the file on CJAC's complaint because the association was "not a witness to the attorney's conduct" in the Ohio court ruling.

Confidentiality rules prohibit the bar from commenting further, Dauphine said March 10.

He added that "there are no disciplinary charges pending against this attorney." Andreas is still listed as an active member on the State Bar's website; he has no public record of discipline.