Despite a recent report showing firms named as many as 280 defendants in asbestos claims lawsuit, experts in South Carolina said the bigger focus remains on plaintiffs attempting to “double dip” on asbestos trusts —particularly in single-defendant cases.
“There are good firms out there, good asbestos attorneys, and we certainly want to ensure [asbestos claimants] are properly compensated.” Earl Hunter, executive director of the South Carolina Civil Justice Coalition, told Palmetto Business Daily. “But we don’t want people to take advantage of the system.”
Data compiled earlier this year by consulting firms KCIC and Bates White found that the North Charleston-based Deaton Law Firm was second among a list of practices for the average number of defendants named in an asbestos suit. The firm was identified as having an average of 185 defendants for each asbestos lawsuit it filed.
Topping the list was the West Virginia-based Segal Law firm, averaging 283 defendants per filing.
But Hunter warned these statistics likely don’t tell the full story. It’s unclear, he said, whether these firms filed this way as a shrewd strategy to win large awards, or that these moves are made by a firm less-experienced in asbestos filings.
“I don’t know how much asbestos practice [Deaton] does — if that’s based on five cases or 100 cases that he’s got that average.” he said “The thing about statistics is that it’s a good starting point, but sometimes you have to dig a little bit deeper.”
In its release of the report, KCIC noted despite the “booming” business of asbestos litigation, there is no national registry for personal injury claims. KCIC purports to leverage its position as a liabilities consulting firm to fix that, claiming a “unique and robust” database of what it estimates to be 90 percent of the total filings in the U.S.
Deaton was not among any of the plaintiffs in 11 asbestos cases active within South Carolina as of July 11.
In South Carolina, efforts have been focused instead on evidence suppression reform. Since the lawsuits against Garlock Sealing Technologies — a New York State based valve maker that plaintiffs allege has an asbestos liability of $1.25 billion — Hunter and others have worked to ensure that trust claims have to be filed as evidence in asbestos suits.
When a company that is liable for asbestos injury claims files bankruptcy, it’s typically required to establish a trust, Hunter said, to pay those injury claims. Some plaintiff attorneys have attempted to sue individual companies for damages, despite making additional claims against these trusts. Judges should take into account the trust payout when awarding plaintiffs damages, but bankruptcy rules allow for claims against those trusts to be suppressed.
“They’re double dipping, basically,” Hunter said. “They’re using the system and because there’s a firewall between the ... bankruptcy trusts and the state courts — it's almost impossible to know who has filed (for payout from the trust).”
To combat these abuses, Hunter said multiple states have enacted laws forcing trust claims to be admitted as evidence in asbestos cases, including Tennessee and West Virginia. South Carolina, he said, is currently weighing similar legislation at the state level, and the legislation would solidify rules currently in place under South Carolina’s lone asbestos judge, Gary Hill.
“My understanding is that his rules require disclosure of trust information,” he said. “It’s a rule of his court that’s subject to change unless you put in statute — that sets that in stone going forward.”