Breakout A: Corporate Client Panel

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Breakout A: Corporate Client Panel
Corporate Client Panel
Tanya D. Holcomb
Honeywell International Inc.
101 Columbia Rd.
Morristown, NJ
Paul F. Slater
General Electric Company
Fairfield, CT
Robert G. Ventura
Metso Automation USA Inc.
Shrewsbury, MA
Jennifer A. Creedon
Verrill Dana, LLP
One Boston Place, Suite 1600
Boston, MA 02108-4407
(617) 309-2618
[email protected]
Tanya D. Holcomb, chief corporate litigation counsel for Honeywell International
Inc. in Morristown, New Jersey, manages a variety of domestic and international litigation, including corporate, commercial, and product liability matters. Her docket
includes all of the company’s asbestos liabilities and related insurance coverage
actions. Ms. Holcomb is also responsible for managing the company’s outside legal
spend, its litigation prevention, and cost control initiatives. She seeks to bring efficiency, innovation, and strategic leadership to Honeywell’s internal and external litigation management efforts.
Paul F. Slater is senior counsel for corporate environmental programs for General
Electric Company in Fairfield, Connecticut. Mr. Slater has presided over GE’s strategy in a number of the company’s most complex toxic tort litigations. He has played
a leading role in designing and implementing GE’s strategy in its asbestos litigation,
including overseeing GE trials in various jurisdictions, including Madison and Cook
County, Illinois, and San Francisco, California. Mr. Slater is also involved in internal
health and safety policy and provides counsel to GE regarding general environmental liability and risk issues.
Robert G. Ventura was appointed general counsel of Metso Automation USA Inc.
in June 2008. Metso provides industrial automation systems and flow control products to the oil and gas, power generation, petrochemical, pulp, and paper industries.
Mr. Ventura is responsible for managing the legal affairs of Metso’s North American
business operations, including commercial contracts, litigation management, corporate governance, ethics, and regulatory compliance. Prior to joining Metso, he
served as director of mergers and acquisitions for Raytheon’s Integrated Defense Systems division.
Jennifer A. Creedon is a trial attorney with Verrill Dana LLP in Boston. She represents large and small companies in asbestos, product liability, and business litigation. Ms. Creedon has defended toxic tort and product liability actions for the past
15 years in Massachusetts and Rhode Island. She has served as local, regional, and
national counsel for companies with toxic tort and asbestos litigation. Ms. Creedon
has handled federal multidistrict litigation, including cases consolidated in MDL
875 (In Re: Asbestos Products Liability Litigation (No. VI)) and the Maritime Docket
(MARDOC).
Corporate Client Panel
Table of Contents
I. Outline of Topics for Panel Discussion......................................................................................................267
Attachment A............................................................................................................................................................268
Attachment B............................................................................................................................................................278
Corporate Client Panel ■ Holcomb et al. ■ 265
Corporate Client Panel
I. Outline of Topics for Panel Discussion
1. Global Settlements: Do They Still Have a Place in Litigation?
2. Corporate Depositions: Tips for Working with General Counsel
3. Lung Cancer Cases: Trends and Strategies
4. Asbestos Still Making Headlines: Commentary on Recent Wall Street Journal Articles
5. Corporate Perspective: Medicare Secondary Payer Act
6. Mediation: Does It Have a Place in Asbestos Litigation?
7. Discovery: Tips from the Inside; Cost-effective, Strategic Goals for Improving Client Relationships
8. Corporate Perspective: “Did I Really Want that Article?” How to Make Client Communications
Effective and Meaningful
9. Future of Litigation: Predictions Regarding the Effect of Bankruptcy, Trusts & Likelihood of
Increased Trial
10. Client Relationships: How to Strengthen Relationships & Build New Ones
11. Communication: What Do You Want to Know? What Do You Need to Know? Effective Communication in the Age of E-mail
12. The Role of National Coordinating Counsel: How Do Serial Asbestos Defendants Structure Their
Defense Teams? How to Prevent the Duplication of Efforts and Costs Between National Coordinating Counsel and Jurisdictional Counsel
13. Business View on Asbestos Litigation: How to Effectively Convey Successes, Challenges and the
Future of Asbestos Litigation to Corporate Representatives and Insurers Alike
Corporate Client Panel ■ Holcomb et al. ■ 267
Attachment A
Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
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As Asbestos Claims Rise, So Do Worries About Fraud
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By DIONNE SEARCEY and ROB BARRY
Three decades after Manville Corp. collapsed under an avalanche of asbestos
litigation, personal-injury claims continue to pile up at a rate of 85 per day.
They find their way to a small office building in suburban Virginia, where
processors evaluate the paperwork of pipe fitters and welders and shipbuilders
who say they contracted debilitating lung diseases from the company's insulation
products. By last March, a Manville bankruptcy trust had already paid out nearly
$4.3 billion.
So when a beneficiary of one David E.
Knight came to the trust saying the
former seaman had succumbed to the
deadly cancer mesothelioma, the
administrators didn't blink. Within five
weeks, the claimant received a check
for $26,250.
Enlarge Image
Dave Ryan/The Beaumont Enterprise
A client of Brent Coon, above, who runs a Texas
law firm, got a higher payout by claiming
mesothelioma when in fact he died from lung
cancer.
The only problem: There was no such
Mr. Knight. Police say the claim was
phony, filed by an employee of a law
office specializing in extracting payouts
from asbestos bankruptcy trusts.
California prosecutors are investigating.
A Matter of Trust
Highlight the connections between law firms
and bankruptcy trusts.
The apparently bogus claim is a
footnote in the history of the
multibillion-dollar asbestos-litigation
industry, but it illustrates a troubling
underside of the nation's longestrunning tort. With dozens of asbestosrelated manufacturers forced into
bankruptcy, a burgeoning swath of the
legal action has shifted out of the
http://online.wsj.com/article/SB10001424127887323864304578318611662911912.html[3/11/2013 9:33:56 AM]
268 ■ Asbestos Medicine ■ November 2013
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Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
View Interactive
Asbestos Through the Years
Asbestos was used for decades in the U.S.
starting in the mid-1800s before regulators
took action to rein in the mineral that
produces cancer-causing fibers.
View Interactive
courtroom and into a nebulous world of
trusts that evaluate claims and
authorize payouts with little outside
scrutiny.
By design, many are guided by teams
of plaintiffs' lawyers—the very group
that seeks money for clients and has
earned billions of dollars in fees on
payouts through the years. Fraud
allegations have periodically dogged
the trusts. And, even though the worst
asbestos-related diseases are finally
starting to taper off, there is growing
concern that the trusts will run out of
money before America runs out of
asbestos victims.
More photos and interactive graphics
"Right now there are a lot of
suggestions that fraud and abuse are
present," says House Judiciary Chairman Bob Goodlatte, a Republican from
Virginia, who has scheduled a hearing Wednesday on a bill requiring trusts to
publish detailed claims reports to help ensure money goes only to legitimate
victims.
In recent months, judges across the country who handle asbestos cases involving
still-viable companies have granted defense requests to subpoena bankruptcy
trusts to sniff out potentially false and conflicting evidence. Many defendants
believe such data could help expose fraudulent or inflated claims that could
potentially save them hundreds of millions of dollars in jury verdicts.
As part of an investigation into the state of asbestos litigation, The Wall Street
Journal reviewed trust claims and court cases of roughly 850,000 people filed
since the late 1980s until as recently as 2012.
The analysis found numerous apparent anomalies: More than 2,000 applicants to
the Manville trust said they were exposed to asbestos working in industrial jobs
before they were 12 years old.
Hundreds of others claimed to have the most-severe form of asbestos-related
cancer in paperwork filed to Manville but said they had lesser cancers to other
trusts or in court cases.
The Manville trust declined to comment on individual cases, citing privacy
concerns. The trust's general counsel, David Austern, said the trust tightened its
oversight after a 2005 claims scandal, adding: "We audit periodically and haven't
found any fraud."
Joseph Rice, of the South Carolina-based Motley Rice law firm that has handled
asbestos cases for 30 years, argues that thorough fraud prevention systems would
be too costly and would leave less money to pay claims. Mr. Rice, whose firm
holds advisory positions on a dozen trusts, including Manville, adds that because
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Corporate Client Panel ■ Holcomb et al. ■ 269
Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
the trusts process such a huge volume of claims, "there are going to be errors, and
errors are not fraud."
Now numbering more than 40, the trusts represent the assets set aside by
insulation makers, cement manufacturers and mining companies. As a group, the
trusts set up by the bankrupt firms had at the end of 2010 paid about 3.3 million
claims valued at $17.5 billion, according to a 2011 U.S. Government Accountability
Office report. Roughly $18 billion was left to pay claims as of the end of 2011, trust
filings show.
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Yet even those huge numbers may not be enough to satisfy the growing throng of
people alleging asbestos injury. The number of claims paid by Manville, one of the
biggest trusts and generally considered a bellwether, has tripled since 2007.
So fast are assets being depleted that nearly half of the trusts have reduced
payments to new victims at least once since 2010. The median payout percentage
has dipped to 15% of what the trusts initially determined would be full value, as
trusts attempt to preserve assets for future victims. That is the lowest level since
2003, according to economic consultant Bates White, which has defense firms and
insurers among its clients for asbestos-related work.
One puzzling complication: Asbestos-related claims continue to rise even though
mesothelioma, the most severe asbestos-related disease and one that can take
years to emerge in a patient, is waning. According to the National Cancer Institute,
the incidence of mesothelioma in the U.S. fell 22% between 1992 and 2009, to
0.96 new cases per 100,000 from 1.23.
Before the U.S. government began regulating asbestos in the late 1980s, it was
widely used as a fire retardant and insulator. Manville Corp., North America's
largest producer of asbestos-containing products, advertised its materials as "a
barrier against weather, time and fire." In fact, when asbestos dust is released in
the air, tiny, jagged fibers can lodge in lungs. Cancer and other diseases from
breathing in the harmful fibers sometimes don't show up for as long as 20 years or
more.
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During Manville's bankruptcy proceedings, federal judge Jack Weinstein noted,
"There is compelling evidence that asbestos manufacturers and distributors who
were aware of the growing knowledge of the dangers of asbestos sought to
conceal this information from workers and the general public."
In 2001, the company's successor, now called Johns Manville, was purchased by
Warren Buffett's Berkshire Hathaway Inc. BRKB +0.16% According to its website, it
makes "formaldehyde-free" insulation that creates a "healthier living environment."
In the wake of Manville's collapse, federal bankruptcy laws were amended to allow
the companies to shed asbestos liabilities and keep operating after they set up
trusts to pay eligible victims who can prove exposure to their asbestos products.
Top authorities at the trusts, called
trustees, are typically appointed by the
federal judge overseeing the
bankruptcy. Many are retired judges or
lawyers with bankruptcy experience.
Most are paid an annual salary. Daily
operations are usually handled by
professional staff.
In most trusts a handful of plaintiffs'
attorneys, selected because they
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270 ■ Asbestos Medicine ■ November 2013
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Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
Everett Collection
A 1920s ad from Manville Corp., which has
varied its name over the years.
represented numerous clients suing the
bankrupt company, sit on advisory
committees. Most receive no salary,
just reimbursements for expenses. But
they hold considerable sway,
according to trust documents, helping
to design general payment policies
and, in some cases, signing off on
auditing procedures.
Unlike court, where plaintiffs can be
cross-examined and evidence
Read More
scrutinized by a judge, trusts generally
Q&A: What's the Asbestos
Risk Today?
require victims or their attorneys to
supply basic medical records, work
histories and sign forms declaring their
truthfulness. The payout is far quicker
than a court proceeding and the process is less expensive for attorneys.
Solvent companies are still being sued in court, and a single asbestos verdict or
settlement can still net millions of dollars for asbestos victims and their attorneys,
who collect fees of up to 40%. A California jury in June awarded $48 million to the
family of a mesothelioma patient who said he inhaled asbestos fibers working as a
contractor.
Meanwhile, the bankrupt companies' trusts pay liquidated claims for pennies on the
dollar of what they would be worth in court, so a single claim against a single trust
isn't especially valuable. But there is no limit to how many trusts a person can tap.
That is because it is impossible to trace asbestos fibers in lungs to a particular
company. Numerous trusts offer on their websites lists of job site locations that will
qualify claims if victims can offer credible evidence they worked there and were
injured from asbestos exposure there. Some legal offices have mastered the
various eligibility rules for each trust.
John Lynch, an employee of the California-based Asbestos Legal Center who
police allege filed the phony mesothelioma claim to Manville, had worked in the
past at a company that processed claims for several other trusts. In this previous
job, he ensured that attorneys provided proper proof their clients spent time toiling
on qualifying Naval ships or in shipyards during periods when the trusts' asbestos
products were in use.
The Legal Center's founder, Michael Mandelbrot, said he hired Mr. Lynch in 2010
to join his small office so he could tap into that expertise.
Mr. Mandelbrot called police when he learned about the allegedly false claim,
which he said Mr. Lynch filed on his own. Mr. Lynch is no longer employed at the
law office.
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Corporate Client Panel ■ Holcomb et al. ■ 271
Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
Petaluma, Calif., police and Sonoma County prosecutors are investigating. Mr.
Lynch hasn't been charged. He and his public defender didn't respond to requests
for comment.
Several trusts have raised broader questions about Mr. Mandelbrot's operation. In
federal bankruptcy court filings, lawyers for three trusts—Western Asbestos
Settlement Trust, the J.T. Thorpe Settlement Trust and the Thorpe Insulation
Settlement Trust—say they suspect Mr. Mandelbrot's law office has submitted
unreliable information about numerous clients' asbestos exposure and has
withheld evidence that could scuttle or reduce the value of their claims.
According to court filings, the claims include those from nurses who say they were
exposed to asbestos on the job when they chipped paint from boilers—which the
trusts allege is incongruous work for that occupation. They also say Mr.
Mandelbrot's office has filed claims from distant relatives of dead people who are
able to assemble meticulous, decades-old lists of job sites where the victims
worked that qualify them for a payout.
Mr. Mandelbrot denies his law office engaged in any misconduct.
"For an office that has built itself up on helping these victims and always having
checks and balances in place, to be accused of these things…it really is a tragedy,
what's happening," Mr. Mandelbrot said.
Mr. Mandelbrot, whose office has filed more than 3,000 claims to dozens of trusts,
said the Manville trust offers the simplest route to getting his clients' claims paid.
"They admit their products were everywhere," he said. "It's very easy. You don't
have to really produce much."
Manville and most other trusts consider claims to be legal settlements that contain
personal health information and refuse to provide detailed information about them.
The opportunity for abuse flourishes as a result, say some politicians, judges and
defense lawyers.
William Warfield's estate sued Union Carbide and several other solvent companies
in Circuit Court for Baltimore City blaming them for the mesothelioma that
eventually killed him in 2007. In a deposition, Mr. Warfield said he had been
exposed to asbestos products only between 1965 and 1985 when he worked in a
federal government job as a carpenter. But his claims to nine bankruptcy trusts,
including Manville, said he was exposed between 1947 and 1991, according to
court records.
Circuit Judge John M. Glynn noted the differences and in a 2010 hearing called
them "dramatically inconsistent exposure allegations," and suggested the dates
may have been changed to skirt a state law that would have hurt the value of his
case. Had Mr. Warfield claimed in his court case he was exposed to asbestos after
1985, he would have been subject to certain Maryland laws that cap damage
awards.
According to court records, the judge later described the case by saying, "the truth
was jettisoned on a wholesale basis in pursuit of money."
The attorney for Mr. Warfield's beneficiaries, Edward Monaghan from the Law
Offices of Peter G. Angelos, declined to comment on the case, which is still
pending. The Angelos firm later noted in a written statement that Mr. Monaghan
had told the judge evidence standards for trust claims are different than those for
trial.
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272 ■ Asbestos Medicine ■ November 2013
Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
In an interview, Judge Glynn, who presides over one of the largest asbestos
dockets in the nation with about 500 active cases a year involving solvent
defendants, said trust claimants "make these rather thin allegations, and they don't
require any real proof."
He added: "It comes across as the plaintiffs' lawyers see this as free money."
In its analysis, the Journal found 2,689 Manville applicants through 2005 who
claimed to be working in various labor-intensive occupations while under the age
of 12. Among them were 753 people who claimed their exposure to asbestos
began while working in construction before turning 12; 356 people who said they
were metal workers; and 184 chemical workers.
It is possible that some claim dates were recorded erroneously or the occupation
listed on the claim may actually be that of an adult family member who tracked the
asbestos dust home on their clothing, according to people familiar with Manville's
claims processing.
Meanwhile, at least 312 people submitted mesothelioma claims to Manville while
describing the disease as lung cancer in filings to public court dockets or other
bankruptcy trusts.
Manville assigns the highest value of payment to mesothelioma, a cancer of the
lining of the lungs or other organs, because it is fatal, generally progresses rapidly
and causes much suffering.
One law firm that made disparate filings was Brent Coon and Associates of
Beaumont, Texas. Mr. Coon, who plays guitar in a rock band and is known for
Christmas parties featuring performers such as Foreigner, represented Richard
Baker, a Nevada electrician and smoker whose death certificate and pathology
reports say he died of lung cancer in 2005. His claim forms to at least seven trusts
say he died of lung cancer, as did his sweeping lawsuit against 42 solvent
companies filed in state court in Harris County, Texas. The suit, stuck in a
gummed up asbestos docket, is still pending.
But to the Manville trust, Mr. Coon's
firm said that its client had
mesothelioma—despite pathology
reports submitted to the trust that listed
Mr. Baker's disease as lung cancer, a
distinctly different diagnosis. In
Enlarge Image
December 2004, the trust accepted Mr.
Baker's mesothelioma claim and
offered him the standard value it assigns to that disease, a payout of about
$17,500. Had his disease been listed as lung cancer the value would have been
$4,750.
When contacted for comment, Mr. Baker's beneficiary, Carol Bellman, referred
calls to Mr. Coon's firm. Mr. Coon said his files for the case were likely tucked
away in storage.
"What we try to do with our clients is get them what we can, where we can," said
Mr. Coon, who sits on the advisory committee overseeing the roughly $1 billion in
the trust set up by Combusting Engineering Inc. "Since we have thousands and
thousands of these cases, we get work histories and their medical histories, and
I'm sure there are errors made from time to time."
Mr. Coon said his clients "are victims of the worst corporate mass genocide in
history, one that has taken the lives of millions of industrial workers and their
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Corporate Client Panel ■ Holcomb et al. ■ 273
Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
innocent families…and they get off making token payments for what they have
done to these people."
The trust has faced problems before. In 2005, a federal judge's ruling in Texas led
to the determination that doctors were fraudulently diagnosing numerous plaintiffs
with asbestos-related diseases. The judge, Janis Graham Jack of Houston,
discovered that in mass screenings a handful of doctors were diagnosing silica
dust-related diseases in the same patients already diagnosed with asbestosrelated diseases at improbably high rates. Concerned some claims could be
fraudulent, Manville and others banned payments to people who included reports
from several doctors and X-ray screening companies. Tens of thousands of claims
to Manville had relied on them.
Immediately following the scandal, payouts by the Manville trust dropped
dramatically. They began to rise again in 2007 and have since climbed at a steady
annual pace.
Manville's longtime managing trustee, Robert Falise, a former executive vice
president of Irving Bank Corp., said: "We're paying out over $100 million in claims
[annually] so it doesn't take much mathematics to figure out that won't go on
forever."
Draining the fund are claims such as one from Gail Garner, who in 2000 filed a
claim on behalf of her father, Angelo Palermo. Ms. Garner obtained a diagnosis of
a type of mesothelioma for him 37 years after he died.
Mr. Palermo's April 1966 death certificate lists his cause of death at age 51 as
"acute liver failure due to metastasis cancer due to primary stomach (place of
origin)." Ms. Garner said he once worked for Manville.
Armed with the death certificate, a blurry torso X-ray and brief medical notations,
Ms. Garner asked pulmonologist William Beckett to offer a second opinion. Dr.
Beckett, who was working in Rochester, N.Y., at the time, concluded that given Mr.
Palermo's job history at asbestos work sites it was "quite possible" he suffered
from mesothelioma of the stomach, a condition that medical experts believe is
caused by asbestos exposure.
In an interview, Dr. Beckett, who now practices in Massachusetts, stood by his
diagnosis. He said he came to his conclusion "given [Mr. Palermo's] exposure
history and everything I could find out from his daughter and his medical records,
which were pretty sparse."
The Manville trust reviewed Dr. Beckett's conclusion and eventually awarded her
father's estate the highest possible payout. Ms. Garner, in an interview, wouldn't
confirm the award but given Manville's payout percentages during the time frame
her claim was processed she received as little as $37,500 or as much as $75,000.
"The panel finds this decision to be a particularly difficult one," Manville counsel
Mr. Austern wrote on June 6, 2003, explaining the award to Ms. Garner.
"On the one hand, the deceased claimant
has been able to produce very little by way
of medical evidence to challenge the
diagnosis/death decision that was made 34
years ago. On the other hand, there was
extensive pain and suffering in this case, and
early death, and abundant and apparent
exposure to asbestos. In the totality of the
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274 ■ Asbestos Medicine ■ November 2013
Asbestos Claims Rise, So Do Worries About Fraud - WSJ.com
circumstances, the Panel believes this claim
deserves extraordinary consideration."
At least three other trusts paid Ms. Garner's
claim, but she sued two others, including the
DII Industries LLC Asbestos PI Trust, in
federal court when they did not.
"From the trust perspective there really was
never any diagnosis," said Beth Petronio, a
K&L Gates attorney for the DII trust. The trust eventually settled the case after Ms.
Garner lost and then appealed, because "at some point, litigation is costly," Ms.
Petronio said.
Ms. Garner said in an interview she pursued the claims "because of the love of my
father and how he died in a horrible and tragic, suffering death, how we had to
grow up with my father not in my life."
Ms. Garner said she plans to write a how-to book on successfully filing claims to
asbestos trusts.
—James Oberman contributed to this article.
A version of this article appeared March 11, 2013, on page A1 in the U.S. edition of The Wall Street
Journal, with the headline: As Asbestos Claims Rise, So Do Worries About Fraud.
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Corporate Client Panel ■ Holcomb et al. ■ 275
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Mesothelioma Doctors, Lawyers
Attachment
B Join Hunt for Valuable Asbestos Cases - WSJ.com
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May 5, 2013, 11:01 p.m. ET
Mesothelioma Doctors, Lawyers Join Hunt for
Valuable Asbestos Cases
By DIONNE SEARCEY
On the asbestos law firm website of Roger G. Worthington is a photo of him and Dr. Robert
Cameron in an operating room, both in scrubs, hovering above the splayed chest of a gravely ill
person who is the legal client of one and patient of the other.
"The hardest working man in America. Easily," Mr.
Worthington, a plaintiffs' attorney, says of Dr. Cameron
on his legal blog. "An American hero."
Dr. Cameron says of Mr. Worthington's devotion to
clients: "He's more than their lawyer; he's almost their
friend."
Related Video
Hospitals throughout the U.S. charge widely varied
fees for services, a new study by the Department of
Health and Human Services shows. MarketWatch's
Jim Jelter reports. (Photo: Getty Images)
Together the men have helped start two nonprofits
dedicated to assisting patients of mesothelioma, an
asbestos-related cancer. Dr. Cameron relied on funding
from Mr. Worthington to build two research
laboratories. When mesothelioma patients ask Dr.
Cameron to recommend an attorney, he tells them to
pick one who has donated toward finding a cure for the
disease, and that includes Mr. Worthington.
The two have forged what has become an increasingly
common relationship between a subset of cancer doctors
and plaintiffs' attorneys, sharing what for each is an
increasingly scarce but valuable resource: victims of
mesothelioma.
It is an unusual alliance in the world of medicine that
some ethics experts say blurs ethical lines. This is
particularly true when doctors refer patients to attorneys
who provide financial support for their medical research.
It "has the taste of a kickback," said Dr. Jerome Kassirer,
author of a book about financial conflicts of interest in
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medicine and a former editor in chief of the New
England Journal of Medicine. "This is a disgrace to both
professions," he said.
Mr. Worthington rejected any notion he was seeking to
profit from his donations or that there is any quid pro
quo. He sees himself filling a void to support research
that should be paid for by the asbestos industry.
The Law Office of Roger G. Worthington P.C.
Dr. Robert Cameron, left, performs surgery on a
legal client of Roger Worthington, facing camera,
in a photo on the attorney's website.
"I've given back. If that's a crime, I'm guilty as hell," Mr.
Worthington said. "The fact that I've found a doctor who
cares, that is just serendipity."
Dr. Cameron likewise said donations to his research are
made with the explicit understanding that there are no strings attached. "I don't get kickbacks; I get
money for research," he said. "If you see someone at the end of a freeway exit, that is me asking for
money for research."
Mesothelioma is a cancer of the lining on the lungs and chest cavity believed to be caused
exclusively by asbestos fibers. Depending on their course of treatment, victims essentially suffocate
to death, typically within months of diagnosis. There is no cure.
Earlier
As Asbestos Claims Rise, So Do Worries
About Fraud (March 11, 2013)
Asbestos Through the Years
Asbestos was used for decades in the U.S.
starting in the mid-1800s before regulators
took action to rein in the mineral that produces
cancer-causing fibers.
Only a handful of doctors in the U.S. specialize in
treating mesothelioma patients and studying the disease.
Nearly all have benefited from money from plaintiffs'
attorneys or plaintiffs' attorney-backed organizations
that goes toward their research or the institution where
they practice, according to a Wall Street Journal review
of nonprofit tax filings and interviews with dozens of
doctors, attorneys and patients.
Some doctors argue that there is little choice. Research
dollars for mesothelioma, which afflicts fewer than 3,000
people a year, are scarce. In 2011, the National Cancer
Institute spent $6.06 million directly on mesothelioma,
just 0.1% of its overall budget for cancer research that
year, though it says treatments could emerge from other
grants targeting cancer more generally.
A Matter of Trust
Highlight the connections between law firms
and bankruptcy trusts.
Drug companies aren't inclined to spend money on the
disease because it affects so few people and because it
likely will continue to decline along with the use of
asbestos, medical experts say.
Merck & Co., one of the few drug companies to embark
on a widespread study, of 662 patients, of a drug to treat
the disease ended it in 2011 when it didn't show promise
of helping patients survive.
"If you want to do mesothelioma research, you need the
lawyers," Dr. Cameron says.
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More photos and interactive graphics
Mesothelioma patients are in high demand by plaintiffs'
attorneys. A single successful mesothelioma case against
companies that made asbestos products can be worth an average of $1.5 million to $2 million,
according to legal consultants. The plaintiffs' lawyers get anywhere from 30% to 40% in fees.
More
With Billions at Stake, the Search For Clients
Intensifies on TV, Web
Earlier: Q&A: What's the Asbestos Risk Today?
As competition mounts for clients, some asbestos
lawyers send elaborate gift baskets to doctors at
holidays, offer free tickets to professional sports events
or offer paid work as expert witnesses.
Attorneys who donate to mesothelioma research can use
doctor testimonials as a marketing tool. Dr. David Sugarbaker, chief of the division of thoracic
surgery at Brigham and Women's Hospital in Boston, appears in a video on a legal website of a
major asbestos firm, Texas-based Baron & Budd P.C.
Baron & Budd pledged $3 million to Dr. Sugarbaker's program in 2002, according to Russell Budd,
the law firm's president. In the 2005 video interview with Mr. Budd, Dr. Sugarbaker exhorts other
law firms to donate as well. "The cure for polio, the vaccine, was completely financed with private
funds," he says in the video. "That answer was found with private money."
In 2007, Boston plaintiffs' firm Thornton & Naumes LLP spent $1 million to refurbish a house that
offers low-cost lodging to financially needy families of Dr. Sugarbaker's patients in Boston. The
firm's name is displayed prominently in materials distributed to patients. Michael Thornton, the
firm's co-founder, said he was proud to support the institution.
Dr. Sugarbaker says he doesn't refer patients to any law firms and adds that donations for his
program come from more than 2,000 individuals, corporations and foundations. A spokeswoman
for Brigham and Women's said law firm donations make up about 30% of the hospital's
mesothelioma research program's budget.
Harvey Pass, professor and director of the division of thoracic surgery at NYU Langone Medical
Center, said he recommends three asbestos plaintiffs' firms to mesothelioma patients. The firms,
Belluck & Fox LLP, Levy Phillips & Konigsberg LLP and Simmons Browder Gianaris Angelides &
Barnerd LLC, through its foundation, have donated money to his research.
Belluck & Fox didn't comment. Michael Angelides, managing shareholder of the Simmons firm, said
the firm cares about its clients and supports research because it is "the right thing to do."
Jerome H. Block, a partner at Levy Phillips & Konigsberg, said the firm donates money without any
promise of referrals. But he doesn't see anything wrong with doctors recommending attorneys with
good reputations.
"The specialized world of mesothelioma oncologists and surgeons knows the difference," said Mr.
Block. "I don't think there needs to be this wall."
Dr. Pass wouldn't specify the donation amounts but he did note in disclosures in a paper on his
mesothelioma research findings published in the New England Journal of Medicine last year that
those three firms had funded his research. He said he always discloses law firm donations.
According to tax filings from the Simmons firm's mesothelioma charity, it donated a total of
$205,000 to NYU in 2010 and 2011. The website of Belluck & Fox notes it has donated to NYU but
doesn't state an amount.
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"Do I think that patients should inquire about their legal rights with this disease? Absolutely," said
Dr. Pass. "This is a disease of elderly people. They've worked all their lives and are going to lose
everything."
A few doctors say they refuse to take money from plaintiffs' law firms, citing unease with ethical
issues, real or perceived.
Raja Flores, chief of thoracic surgery at Mount Sinai Medical Center, said he believes receiving lawfirm donations for research could influence his treatment of a patient.
For instance, he says, lawyers want tissue samples to use as evidence in their legal cases, but cutting
into a patient isn't always in their best interest.
He also cites the case of a mesothelioma patient who, acting on the advice of an attorney, requested
a surgery Dr. Flores had deemed medically unnecessary. The reason? Complicated surgery could
make for a more compelling court case.
"My policy is not to take money from lawyers, period," said Dr. Flores. "When you add financial
incentive it muddies the waters. We did not take the Hippocratic oath for that."
Dr. Cameron, a medieval studies undergraduate major who drives a 19-year old Toyota Camry, says
he decided to became a surgeon after watching his father suffer through colon cancer. He is
currently a professor of cardiothoracic surgery and surgical oncology at the David Geffen School of
Medicine at UCLA.
He says he first met Mr. Worthington about 15 years ago when the doctor came across the lawyer's
website, which contained medical information about mesothelioma.
"I sent him a nasty email and said, 'You don't know what you're talking about,' " said Dr. Cameron,
who also is chief of thoracic surgery at West Los Angeles Veterans Administration Medical Center.
"He actually called me and I decided to talk to him about it."
Mr. Worthington, a fit, avid cyclist, explained he also wanted to help mesothelioma patients and
was hoping to create a foundation to raise awareness and research dollars.
The two men, along with Dr. Pass, eventually established the Mesothelioma Applied Research
Foundation.
The organization, known as MARF, created a website with medical information about the disease
and sought donations from patients' estates and law firms.
The funds were used to award grants toward research. Dr. Cameron's research program and the
institution he was affiliated with, UCLA, were among the recipients of those grants in 2003-2005,
receiving a total of just over $190,000.
Dr. Cameron was listed in tax filings as an unpaid board member at the time; Mr. Worthington was
the unpaid president and treasurer. They said the grants were peer-reviewed, and Dr. Cameron
emphasized that the money was given to UCLA in support of research he participated in but that he
didn't personally profit from this money.
Mr. Worthington got into asbestos litigation as a cub lawyer at Baron & Budd, the Texas firm, in the
late 1980s. He branched out on his own, starting his firm in first Dallas and then San Pedro, Calif.
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He signs mesothelioma patients as clients, participates in depositions, is the attorney of record on
many pleadings and also partners with other firms to litigate the cases.
Mr. Worthington, who says he handles fewer than two dozen mesothelioma cases a year, owns a
bluff-side compound in Dana Point, Calif., and kicked in more than $5 million to start a brewing
company, Worthy Brewing, in Oregon.
Mr. Worthington sent his own father to be treated by Dr. Cameron when he was diagnosed with
what he said was asbestos-related lung cancer.
In 2006, after his father had died, Mr. Worthington donated $500,000 to establish the "Punch"
Worthington Thoracic Surgery Research Laboratory at UCLA in honor of his father. Dr. Cameron
carries out research there on mesothelioma, lung cancer and other occupational cancers.
Around the same time, Mr. Worthington and Dr. Cameron left MARF, which says it gets nearly half
its financing from asbestos plaintiffs' attorneys.
MARF often refers newly diagnosed victims to doctors and makes research grants. Officials at the
organization say that in its early years it did refer patients to attorneys but that it no longer does.
Its website, visited by many newly diagnosed patients, includes videos of plaintiffs' attorneys
speaking at the group's annual conference where the top lawyer donors are permitted to talk to a
roomful of patients about litigating cases.
"We're not a marketing arm for the law firms," said Mary Hesdorffer, a nurse practitioner and
MARF executive director.
Dr. Cameron and Mr. Worthington helped start another nonprofit, the Pacific Heart, Lung & Blood
Institute's Pacific Meso Center, that operates out of a small office attached to Dr. Cameron's Los
Angeles clinic, complete with a laboratory where scientists work on immunology and molecular
research.
The PHLBI has received $1.7 million in donations from Mr. Worthington in the past seven or eight
years, Mr. Worthington says.
The lawyer's donations made up about 30% of the organization's budget for 2011 and 2012, an
official there said.
Dr. Cameron says the group "is not a front for Roger Worthington. It's just that he's been the
biggest supporter so far."
The PHLBI's Meso Center holds several fundraisers throughout the year and also offers a patients'
support network.
It hosts an annual medical symposium for doctors and patients in a Santa Monica, Calif., hotel,
which some attorneys from Mr. Worthington's firm and other plaintiffs' firms also attend.
Several other law firms donate money to the nonprofit, where Dr. Cameron is scientific adviser, but
his relationship with Mr. Worthington is the most enduring. A "Patient's Roadmap" brochure on a
table in Dr. Cameron's waiting room includes an ad for Mr. Worthington's firm.
Dr. Cameron, respected by peers as a skilled surgeon, said he cares deeply for his patients and is
passionate about finding a cure for mesothelioma. But the quest has come up short so far.
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Doctors engage in radical tactics to treat the disease, some shining lights on tumor areas covered in
special photosensitive chemicals or dousing the opened chest with heated chemotherapy liquid. Dr.
Cameron uses cryotherapy, a process of freezing tumors with liquid nitrogen.
Mr. Worthington said he wouldn't hesitate to recommend Dr. Cameron to a client in search of
medical care, declaring: "He's the best surgeon in the world."
Dr. Cameron sometimes testifies on behalf of patients who are also clients of Mr. Worthington. He
says the compensation of about $10,000 to $15,000 per year goes to UCLA.
One such client was John Johnson, who in December 2011 at age 68 was dying of mesothelioma
while enduring a grueling deposition to support his legal case filed by Mr. Worthington's firm
against the companies he thought were responsible for the retired plumber's condition.
Mr. Worthington and his partners had pleaded with a California judge to limit the hours that Mr.
Johnson would have to answer questions from the companies he thought were killing him. His
breathing was labored, the stress of the interrogation was worsening his already grim outlook, Mr.
Worthington said. Please, his lawyers asked the court in a motion, limit Mr. Johnson's deposition to
12 hours.
Defense attorneys from the more than 65 companies that Mr. Johnson originally named in a lawsuit
wanted more time to tease out information about whether they were really responsible for the
deadly asbestos fibers that lodged in Mr. Johnson's lungs decades ago.
Both sides had much at stake: Mr. Johnson's case was likely to be worth millions of dollars. The
sooner it got to trial, the better for the sickly Mr. Johnson, whose very appearance on the witness
stand was bound to gain sympathy from jurors. Dubbed "living mesos" by attorneys, cases such as
Mr. Johnson's can be worth two to three times as much if the plaintiff remains alive through the
court process. Under California law, pain and suffering damages can be awarded only if a plaintiff is
alive during trial.
To support his position, Mr. Worthington offered to the court a filing from Dr. Cameron, who had
carried out an 11-hour surgery on Mr. Johnson to remove a nearly 12-pound tumor that now was
growing back. Mr. Worthington had recommended Dr. Cameron to Mr. Johnson, his widow said.
"A prolonged legal deposition…increases the patient's stress level dramatically and exacerbates
fatigue and stress, with its attendant negative consequences on the patient's cognitive status,
immune system and cancer fighting ability," Dr. Cameron wrote in a Dec. 2, 2011, declaration to the
court on behalf of Mr. Johnson. "An unlimited deposition could and should be construed as cruel,
unethical and inexcusable."
The court limited the deposition to 20 hours, eight hours more than Mr. Worthington had wanted.
It later granted another five hours of questioning over objections from his lawyers who submitted a
second declaration from Dr. Cameron.
His breathing labored, Mr. Johnson struggled through hours of questioning over the next six weeks,
according to Mr. Worthington, at one point so sick paramedics were called after a session.
On Jan. 23, 2012, after the final day of answering questions from the defense attorneys huddled in
his living room, Mr. Johnson collapsed. He was pronounced dead the next day. "Sudden cardiac
arrest while giving a courtroom deposition," read his medical record, provided by Mr. Worthington.
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Mr. Worthington—armed with Dr. Cameron's court declaration that he called a "prophesy"—went
back to the court to argue for a speedy trial.
The judge granted the request. More than two dozen defendants settled the case in September for
several million dollars, and it was cited as inspiration, in part, for a new California law that took
effect in January limiting deposition hours in some instances.
Robert Thackston, whose firm represented some of the companies sued by Mr. Johnson, said
lengthy depositions are needed when dozens of defendants are sued. "Usually it's the plaintiff's
lawyer who puts his own client in an impossible situation by suing so many companies, with no
grounds, and making them all attend a deposition and ask questions to find out why they were
sued," he said. He noted that in the Johnson suit the case against some defendants was dismissed.
In February, Mr. Johnson's widow, Sue Johnson, donated $500,000 to the Pacific Meso Center. An
announcement from the center about the gift said, "Instead of being angry, the family is now
challenging others, particularly attorneys involved in asbestos litigation to donate."
Write to Dionne Searcey at [email protected]
A version of this article appeared May 6, 2013, on page A1 in the U.S. edition of The Wall Street
Journal, with the headline: Doctors, Lawyers Ally Over Deadly Cancer.
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