THEIR VIEW: Use hard facts, not hearsay

Layne

By BERNIE LAYNE

CHARLESTON -- In the courtroom, facts matter. You don't deal with supposition or hearsay. When you present facts in court, you provide evidence to substantiate your claim.

Unfortunately, the same cannot be said for website "articles" that lack the editorial rigor of most newspapers. Such is the case with the recent online article written by Tim Povtak, a former Orlando sportswriter, about West Virginia's legal climate and asbestos cases. Povtak's piece shows that he did little, if any, investigative research because he clearly has no legitimate information on either subject.

The American Tort Reform Association's "judicial hellhole" report has been discredited by both academics and journalists. In her article "Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia," Elizabeth Thornburg writes, "Judicial Hellholes are selected in whatever way suits ATRA's political goals. The choice is not based on research into the actual conditions in the courts." (West Virginia Law Review, Vol. 110 No. 3)

Here's the truth about West Virginia's legal climate: we rank 39th among all states for the number of lawsuits filed per capita (www.ncsconline.org). Appeals to the West Virginia Supreme Court declined to just 1668 in 2010—the lowest number of since 1990. Civil appeals comprise just 20 percent of that total and have declined 45 percent in the last decade (2010 West Virginia Supreme Court Statistical Report).

It's just as easy to counter Pavtok's claims regarding asbestos cases.

Asbestos is a rock or mineral mined from the ground and combined with other products for added strength or heat and chemical resistance. Its use goes back to ancient Greece and Rome—and even then observed the "sickness of the lungs" that working with asbestos caused. With the Industrial Revolution, asbestos use grew, exploding in the years after World War II. This is particularly true in West Virginia with its high concentration of chemical, glass and steel manufacturers.

Exposure to asbestos can cause asbestosis and lung cancer. It also causes an incurable cancer called mesothelioma, which attacks the thin lining of the heart, lungs, chest and abdomen. In the U. S., there are just two ways to contract mesothelioma—radiation for another form of cancer or asbestos exposure.

For many mesothelioma victims, the disease may not show until years or decades later. It is estimated that 3,000 people die annually from mesothelioma; thousands more die from other asbestos-related diseases.

The National Institute for Occupational Safety and Health has determined that more than one million American workers faced significant asbestos exposure. OSHA's 2004 Worker Health Chartbook shows that West Virginia tied Delaware for the state with the highest asbestos mortality rate in the country.

Asbestos manufacturers knew as early as the 1920s that the product was dangerous. The first reported case was in 1927, and the U. S. Fifth Circuit wrote in 1973 that "by the mid-1930s, the hazard of asbestos as a [lung disease causing] dust was universally accepted." It was a very profitable product, however, so manufacturers kept it on the market to make millions.

Indeed, manufacturers cared so little about the safety of workers that in 1966, a Bendix Corporation executive wrote, "If you have enjoyed a good life working with asbestos products why not die from it?"

Industrial exposure in West Virginia led to first hundreds and then thousands of asbestos cases being filed in the 1980s and 90s. In sharp contrast, just 92 cases were filed in 2009 and 104 in 2010. To handle these cases effectively, the West Virginia Supreme Court created a Mass Litigation Panel where lawyers for both the injured workers and the manufacturers worked jointly with the court to develop a case management order (CMO).

As certain defendants have stated, "The existing CMO was an exhaustive joint effort by the vast majority of plaintiffs and defendants to develop a comprehensive system to address the large number of asbestos claims in West Virginia."

The CMO has a system to prioritize cases. While Povtak claims that the CMO moves cases through West Virginia courts more quickly, he fails to mention that swiftness is necessitated by the fact that the priority cases getting trial dates are for individuals dying from mesothelioma or another asbestos-caused cancer. Additional changes to the CMO have improved disclosure requirements regarding bankruptcy payments to claimants.

While no side is pleased with the CMO, it has never been appealed. It is an important example of how attorneys on both sides worked together to ensure that very sick people are compensated as fairly as possible. West Virginia is doing it right. Povtak and The West Virginia Record should write about that.

Layne is a partner with the Charleston firm of Mani, Ellis and Layne and is the vice president of the West Virginia Association for Justice.

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