Asbestos Bill 5456 Eric Abramson

Rep. Chatfield: Now we have, wishing to speak in opposition to the bill, Eric Abramson with the Michigan Association of Justice asbestos disease victims. Thank you for being here with us today. I’d like to ask you if you could press the red button in front of you.
Abramson: Can you hear me? Okay.
Rep. Chatfield: Yes sir.
Abramson: Thank you. Good afternoon distinguished legislators, Mr. Chair, thank you for the opportunity to speak today. My name is Eric Abramson and I’m an attorney who spent the past 28 years working on asbestos cases. Eight as an investigator and twenty as a lawyer. I’m from the law offices of Michael Serling in Birmingham. Our firm tried the first asbestos case, which was filed in 1975. Over the years our firm has represented thousands of victims of asbestos disease, many of whom have been Veterans of the US military. I’m here today to testify in opposition of HB 5456. Asbestos causes lung cancer and mesothelioma, a fatal tumor of the lining of the lung or abdomen. The life expectancy of a person diagnosed with mesothelioma is often less than one year. In that year, the ailing person is running to see his doctors, going through palliative chemotherapy in a desperate attempt to slow down an aggressive, and excruciatingly painful tumor which coats his lungs and crushes his abdominal organs. HB 5456 is bad for asbestos victims and for Veterans. There are approximately 25 million Veterans in the US from all wars and all branches of service, and while veterans represent only 8% of our population, they comprise an astonishing 30% of all known mesothelioma deaths that have occurred in this country. In Michigan, it’s up to 40%. the reasons that 5456 is unnecessary, is that the current system governing asbestos cases in Michigan is working! The majority of active cases in Michigan are filed in Wayne County. I am a member of the Wayne County Asbestos Steering Committee governing the asbestos case management. The steering committee is comprised of both plaintiffs and defense lawyers who represent the interests of asbestos companies, as well as the plaintiff’s lawyers and the insurers. Over the years the steering committee has met and has authored around 20 case management orders dealing with all aspects governing asbestos cases. CMO number 16, entered in 2009, already requires the plaintiff’s council serve copies of all submitted bankruptcy trust claim forms to all defendants that at the time of the filing of their product identification proofs in the case. This is a really important point. Chief judge Colombo has cautioned us that failure to do so can and will result in delaying plaintiff’s trial date. To date, not a single case in Wayne County has been delayed because the plaintiffs have not filed their bankruptcy trust claims. The system is working. HB 5456 imposes unreasonable and unnecessary burdens on the victims of asbestos disease. It requires an asbestos disease victim to conduct all discovery of all potential asbestos exposures and to file the Trust claims within 30 days of beginning his case. Under the current system, a person dying of mesothelioma can file his case and, within 2 years of his case, will be up for trial. He or she has 18 months until the full Discovery claim, I’m sorry, he or she has 18 months until full discovery is due, which includes not only filing our proofs against the viable defendants, but against the bankrupt defendants as well. The process allows a dying plaintiff to file his case, move forward with his case, conduct discovery, and have his deposition testimony taken that is key to all of this. Having a plaintiff’s testimony taken while he is, obviously, alive and capable of testifying is so important. If a dying victim is required to conduct all of the discovery that it normally takes a year and a half to conduct, he will be dead long before he’ll ever have an opportunity to testify, and most likely all of that evidence will be lost. The bill also requires asbestos bankruptcy trusts to certify the Trust claims materials are true and complete. This creates additional burdens on the bankruptcy trusts themselves, which ultimately depletes funds for the victims to be compensated from. As it stands today, most of the bankruptcy trusts are only paying 6% to 8% of their total scheduled value on a case. So a plaintiff, while you’re hearing plaintiffs are getting a half a million dollars from all these bankruptcy trusts, what you have to understand is that people are getting 6% to 8% of the scheduled value from each individual bankrupt defendant. The claim that HB 5456 somehow prevents double dipping is completely false. While there may be some credence to that argument in states where joint and several liability is applicable, in Michigan, we have apportionment, which means that the jury will ultimately decide how much each defendant, whether it be a current viable defendant or a bankrupt entity, is responsible to the plaintiff for, and some of those proofs come from the plaintiffs themselves, and if the defendants have them, they would also provide them in the normal course of discovery. The current case count in Michigan is down. This is not the state where we should be considering this. This is not a state where we have thousands of cases on backlog. Currently in Wayne County, I think in 2019 or 2018, we had 200 cases. That’s not a lot of cases. Ten years ago, there were three to four times that amount of cases. What we’re hearing also today that I find that I have a problem with is, I’m hearing that a lot of these companies are peripheral defendants. These are the mom and pop shops of the world. Actually, that’s not so, I recently represented, and was prepared to try a case just a couple of weeks ago, of a woman who’s 37 years old who has two young children. She is a nurse. She is dying of mesothelioma. She is the sole breadwinner in her home, and she has over $2 million in economic loss, And the main defendant in that case in 1966, the proofs will show that in 1966, that defendant had a memo that said “If the person has enjoyed living a life working with asbestos, why not die from it? They got to die from something.” That is the cold and callous attitude of defendants who are still today part of this litigation, and defendants, there’s a reason defendants are settling these cases. Because they know that those are the proofs that will end up in front of a jury. That is not a bankrupt defendant. Any questions I’m happy to take?
Rep. Chatfield: Sure. So I’m going to, I mean, I’m going to try to get back with the testimony and questions to make sure it’s actually about legislation that’s in the bill as it’s currently crafted. What would you say, in your current position right now, with talking about cases in Michigan. I mean, we had testimony, you know, a couple before you regarding a Michigan business and how they’re being impacted by how the status currently is with hundreds of thousands of dollars with, to the best of their knowledge, not having any material that has asbestos in it. What would be your response to that with a Michigan company dealing with this?
Abramson: Thank you. That’s an excellent question, Mr. Chairman. We don’t have that problem in Michigan. Unfortunately, and what I heard the gentleman say is that his client was involved in some out-of-state cases. We’re very, very, one of the experiences that I’ve had and I’m proud to say is that we are very disciplined in how we handle this litigation in Michigan. You know, I don’t see that as a problem here, you haven’t heard people say that “Hey we’re being brought into all these Michigan cases. He wasn’t able to say that they were Michigan cases because simply that’s not the case. We have a very experienced and dedicated group of both plaintiffs and defense lawyers who are able to ferret out these issues. I worked with this gentlemen sitting right here, Mr. Braun’s firm on crafting that very case management order so that we have transparency, so that we do already provide those bankruptcy trust claims.  I just wanted to let you know that we have a very fair, workable system in Michigan, because we have a judge who’s so well respected and very experienced council on both sides of the case.
Rep. Chatfield: Thank you, and in this bill, is it written in a way that you believe that these people who are negatively impacted by it, after they go to the trust, that they now cannot go after the business or corporation that they believe is also responsible, Is there something that prevents that?
Abramson: No. What happens with this bill is that it delays, and that is the key here. Is that it gives the opportunity of a defendant to wait until the very end, after everything is set, and then 16 days before trial, say, “Hey, wait, we believe there’s a potential for another claim out here.” And so now you’ve gone through a year and a half of discovery, almost two years of discovery, and at the last minute pulling the trigger on that. So, I don’t believe that the legislation is number one, necessary, and number two, it’s proper because it gives them the opportunity and, you know, just like you have some bad actors of plaintiffs out there in other states that are acting that way, you also have that among some defendants as well, who will wait until the last possible minute and stall and delay, and then file this kind of a motion. It really just basically serves to do nothing more than gum up a system that’s already working.
Rep. Chatfield: And this will be my last question, I don’t want to monopolize the questions from the committee because there’s more testimony I know. So, you would say they still can go after the corporation, you’re saying that the emphasis is it’s going to be delayed. But my question is, when these trusts were set up in the best of my knowledge in the ’70s when we started, you know, realizing this was a problem, do you think the original intent of these trusts being formed was for these people who were impacted to go to the trust first? Do you not believe that’s probably the intent, when they originally created them?
Abramson: That is what’s happening in Michigan. That’s the point is that in Michigan, this is happening. What you’re hearing from the Garlock bankruptcy and these other things, I didn’t hear them saying that this was a Michigan problem. We’re here in the Michigan legislature to deal with Michigan problems, and we don’t have that problem in Michigan. We are required to turn over those bankruptcy claim forms that we, and of course you can only turn over what you know, but what you know to exist at that point after a year and a half of discovery, you’re not going to learn much later than that, after that. So, we already are required to turn that stuff over, and we do in fact do it. I’m trying, what I’m trying to say is that we don’t want to give another opportunity for some bad actors to throw in obstacles in order to delay just compensation to people. The bankruptcy trusts were in fact set up to compensate victims. Again, they’re only getting 6% to 8% of their scheduled values. The one thing I can say about that is that the process of filing these bankruptcy claims is nowhere near as simple, as Mr. Barons pointed out. What you’re talking about is a two-page claim form there. That is the beginning of a process that includes having to provide product identification. Medical is usually pretty simple; you gather up the medical and you provide your medical expert reports, But product identification is almost always a key because you have to not only line up a dying or dead plaintiff to a specific product, during a specific year, at a specific time, and that product must contain asbestos. And in doing so, you’re relying on co-workers and people who, you know, sometimes are oftentimes dead. You’re looking for people nowadays who are in their later years, and finding a lot of these people, a lot of times is a real challenge. So, that’s why it takes a good year and a half to work a case up. And to give them another opportunity to continue to delay a case, it really doesn’t benefit the plaintiff and it doesn’t benefit the effective management of these cases at all.
Rep. Chatfield: Thank you. Representative Wentworth has a question.
Rep. Wentworth: Thank you, Mr. Chair. Just to clarify, so right now the court doesn’t require that the plaintiff file with the trust before they go to court?
Abramson: No, well, absolutely, but if you don’t do it, the judge will stay your case, and that’s why we do it. It is required under CMO 16 that we have to turn over everything that we have filed.
Rep. Wentworth: Yeah, if they filed. It doesn’t require them to file.
Abramson: There’s been no allegations that plaintiffs aren’t filing them. As a matter of fact, I think Mr. Braun will tell you that there hasn’t been a single case where that’s been the case.
Rep. Wentworth: So under your expertise and your experience, is that an issue in this bill? That we’re going to require… if it’s not happening then what’s the issue?
Abramson: You’re going to require something to happen that just isn’t possible to happen. You’re going to put the cart before the horse, the cart being you’re going to have to have all of this discovery that takes you a year and a half to do, and you’re going to have to do it upfront before or within 30 days of filing your case. And the truth of the matter is, within that, it takes you that full 18 months to do that discovery. Your plaintiff will be dead. He’ll be gone, and you will lose very valuable information not just for the trust but against solvent defendants as well. And that’s just not fair to plaintiffs. Why try to fix something that just isn’t broken?
Rep. Wentworth: So, if I may, Mr. Chair, so would you say that the burden of proof is on the plaintiff or the defendant? Because what you’re saying is that the plaintiff must come forward with a claim, and however long it takes for that to develop for them to find the evidence or refute the evidence, that person could die within that time period, is what you’re saying?
Abramson: What I’m saying to you is that the plaintiff will die within that year, okay? By allowing a bill like this to go through, you’re going to put plaintiffs in a situation where if you have to have all that discovery, which normally takes 18 months to do or could take that amount of time to do, and experience has shown it takes that amount because that’s what the current track of cases is, then the plaintiff will be gone before he has an opportunity to ever even have his testimony recorded. And that’s a real problem. It’s a real problem.
Rep. Chatfield: We have several more questions. I’m going to ask from here on out, just because we are crunched on time, and the session begins at 1:30, that we’ll have one question, no follow-ups, and we’ll have answers as brief to the point as possible. Representative Vaupel.
Rep. Vaupel: Thank you, Mr. Chair. Why are 40% of the people filing from military people? Is there a certain branch of the service, and how does that affect Michigan, and are they filing multi-state things? I’m sorry, Mr. Chair, that was more than one.
Rep. Chatfield: I said no follow-up questions. I didn’t say no run-on questions. But from here on out…
Abramson: That’s an excellent question, sir. So, your question being why is it that there’s 40%, why is it that Michigan has a higher than national average? I think it has to do with the fact that often times after people come out of the service, they’ve gone into work in many of our still steel mills, in our power plants, in our refineries, in our automobile plants. Michigan was at one time the leader in producing automobiles and steel in the country, and so these people who are affected today with asbestos disease were exposed back in that time frame. There is, I forgot to say and I don’t want to drag on that we have, asbestos is a late disease. From the time you’re exposed, to the time you develop disease is often 20 to 40 years. So people who are having, who are diagnosed with mesothelioma today were literally exposed in the late ’60s, sometimes ’50s, early ’70s, at the time when OSHA was first coming in, but Michigan was a very industrialized state so after they did their service in the military, they were, you know, in the Navy often or in shipyards, they would come to Michigan and work in the automobile plants and in the steel facilities where they were additionally exposed to asbestos. Thank you. Thank you, sir.
Rep. Chatfield: So, we have, and I apologize to members for doing this. We have two more people wishing to testify.
Abramson: Yes, sir.
Rep. Chatfield: And we do have more questions. However, what I’m going to do is I’m going to keep the questions in the order in which they are in. We have four that have questions, so the next person who testifies, I’ll allow questions to be towards that person. If you have a specific question, please follow up with him after the committee. So, thank you for your testimony.
Abramson: Thank you, committee members. Appreciate it.
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