Learn About Mesothelioma

Gornbein: What is Mesothelioma? Find out next on Practical Law.

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Welcome to Practical Law. I’m your host, divorce and family law attorney Henry Gornbein. I’m also pleased to say that Practical Law is the official show of the Oakland County Bar Association. Today, I’m pleased to welcome as my guest Michael Serling, who is the leading expert in mesothelioma, and I may have mispronounced it, but let’s call it meso law and Michael can explain it to us. So, Michael, welcome to Practical Law.

Serling: Thank you, Henry. Thank you for having me here today.

Gornbein: First of all, let’s pronounce that word correctly.

Serling: It’s mesothelioma.

Gornbein: Okay, it’ll be embedded in my brain. Right, Michael, tell us about exactly what mesothelioma is.

Serling: Mesothelioma is a rare and almost always terminal cancer that invades the lining of the lung, which is the pleura, or the lining of the abdomen, which is the peritoneum. It takes about 20 to 40 years after exposure to asbestos for the disease to manifest, and the time frame between diagnosis and death is usually from 9 months to two years.

Gornbein: You kind of brought up an interesting question. You deal with the statute limitations; if someone doesn’t find out about this disease until let’s say 20, 30 years after exposure, Is there an exception in this area of the law?

Serling: Most states have always recognized that it would not be fair to a plaintiff to start his time clicking when he’s first exposed, when he has no idea that he’s sick. One state, Indiana, used to have that, so there were never any cases in Indiana. Eventually, they came on board, and every state in the country recognizes a time frame that begins from diagnosis of the disease.

Gornbein: And what’s the time frame? Is it three years?

Serling: In Michigan, it’s three years, but because very few of the victims live three years, you can get a fresh clock, your heirs can. If you die before the three years, you can often get an extra three years. Michigan is very liberal. A lot of the laws in Michigan are very conservative, but that’s one area where you get substantial additional time if you die before the three years is up.

Gornbein: Michael, this is a unique area of the law. How did you get into it?

Serling: It’s an interesting question. When I was 30 years old, I was a general practitioner competing for divorces, accident cases, criminal appointments, and I played tennis with a foursome, and one of the tennis partners sent me a woman whose husband had died at age 52, leaving two young children. I wanted to help her, but the only thing I could think of was so complex. I didn’t know anything about it, and so, I called all the mavens of the day, Al (?), who was the king of torts, A. Robert Zeff, Stanley Schwartz, and they all said, “We don’t know. We’ve never had anything like this.” So, I was about to give it up, and I felt terrible for this woman who was trying to make it. I think she was working at a dime store for three or four bucks an hour. And so, I wrote a letter to OSHA, which in 1975 was only three years old. It was instituted in ’72.

Gornbein: What is OSHA?

Serling: OSHA was the Occupational Health and Safety Administration, which was in charge of job-place exposures, environmental exposures and so, they sent me a letter, and they said, “Well, there’s no lawyers in Michigan, but you may want to contact a lawyer in Cleveland by the name of Robert Sweeney,” who was 20 years my senior.

Gornbein: So in 1975, not one lawyer in Michigan was doing asbestos litigation, for lack of a better word.

Serling: That’s correct, and so I called Robert Sweeney and I sent him some of the detail on the case. He said this was a very classic case of an asbestos insulator who had the disease and he said, “Hop over the lake, and I think we can work together on this.” He had about 30 cases at the time, most of them out of the steel mills either in Pittsburgh, Pennsylvania, or in Ohio. Republic Steel was in Cleveland, and so I went over, and he looked it over, and he said, “We’ll file it in Michigan. I’ll teach you everything I know, and we’ll divide the fee. We’ll divide the work.” And I was actually very lucky that that opportunity arose because it gave me an opportunity to learn a specialty very deeply and in great detail, and that has been my specialty since I was 30 years old. I’m going to be 73 in October.

Gornbein: Tell us how the cases work. You get a case or someone contacts you, what happens? What’s the procedure for our viewers.

Serling: Well, we first make sure that we have a solid diagnosis, if it’s mesothelioma. we also handle lung cancer cases in the real heavily exposed trades and asbestosis cases, which is a noncancer scarring of the lung. But if we get a mesothelioma case or a lung cancer, we make sure we have a solid pathological diagnosis before we proceed, because it’s very costly to take these cases through the system, and if we don’t have a mesothelioma case, we cannot succeed. If it’s a similar-looking cancer but not exactly mesothelioma, if it’s an adeno cell instead of a mesothelioma cell, it’s not a case we can help with. So once we get that, we know exactly what to do, we go into action. The only way we can win a case or prevail or have a strong case is if we can prove the products that the victim was exposed to, the manufacturers, finding viable manufacturers or suppliers, and the diagnosis. The diagnosis is really not the hard part. The hard part is finding the exposures that the victim had during his work career.

Gornbein: What trades are affected by meso cases?

Serling: First of all, understand that there are asbestos judges in many counties, not in Oakland but in Wayne County for sure, that supervise the cases and so there’s no blind draw with those kind of cases. If you’re in a county that has an asbestos judge, they all go to the same judge, and in most cases they’re extremely knowledgeable about the trades, and they look at things like the trade that the victim was involved in. In the early days, almost all of the victims were asbestos insulators. The laggers, the guys that covered the pipes and the boilers with asbestos products. And at one point, we thought that’s all it would be limited to, and the reason that those cases had come to the surface is, obviously, the guy would go to the doctor, and the doctor would say, “Gee, you’ve got mesothelioma, and you’re an asbestos insulator. So obviously, that’s where you got it.” But if the guy was a plumber or an electrician, the doctors wouldn’t think to ask the question because the name is not in the trade. Doesn’t say asbestos. Then we started to find cases in the boilermakers union, in the electricians, in the pipe fitters, in the sheet metal workers, in the painters, in the carpenters, in the bricklayers. And so it became apparent that many other trades were victimized and of course, mesothelioma is a signal tumor. It’s only caused by asbestos exposure. So obviously, the problem was much more widespread and this was a national phenomena, not just in Michigan but also true in Michigan. This was a national phenomena, meaning that workers, building Trades, were at extreme high risks for asbestos disease. Sometimes because they worked right near the insulators or because of their own products that they handled that contain asbestos.

Gornbein: Isn’t asbestos illegal now?

Serling: It was taken out of almost all products. It was taken out of building products, by the mid 1980’s it was out of most building products, and there were probably 2500 uses for asbestos, commercial uses. Things that would amaze you, like theater curtains had asbestos in the curtains, in the textile because you could weave asbestos. It’s a mined product, but then it can be fashioned and woven to create a covering for a wall

Gornbein: Or as a fire retardant. It’s a fire retardant isn’t it?

Serling: Yes. So, to answer your question it is taken off the market in almost all building products. The last thing to go were brake linings because it was in brake linings. It lasted a lot longer, It took a while. They implemented a lot of safety procedures like instead of blowing out the brakes from a tire, the brake shoes, you had to vacuum it. And so they had steps that were taken, but eventually it was taken out of brake linings.

Gornbein: What about household goods? Are there cases involving that type of situation?

Serling: That’s a very interesting question because it was bad enough that we saw in the mid-’70s that it was in many different building trades, not just the insulators, that it was not contained to one group, that it was widespread. And then it started to show up in households. Wives got it, children got it, like where work had been done on the house, or where a kid had been hanging around dad when he was doing a brake job at the house. We call them shade tree mechanics. So, and I would say it’s hard to put a percentage on it, but I would say about 5% of the cases we get are family exposure. Spouses and kids.

Gornbein: Are there any class-action cases involved?

Serling: Asbestos cases are almost always consolidated actions, meaning they’re not class, there’s no representative plaintiff. The one exception to that was the school asbestos case that we handled for 335, almost all the school districts in Michigan were involved in our class-action case. That was approved as a class, we had 12 representative plaintiffs and there was a distinction with that because there were so many similarities in buildings that the asbestos judge in Wayne County, who was Jim (?) in the ’80s approved it as a class action. It took a long time, we carried it forward. Judge Bob Columbo, who’s now the chief judge of Wayne County, had taken over the asbestos docket and a couple of defendants tried. Most of them settled in a midnight settlement session where the judge kept all the parties there until midnight one evening.

Gornbein: What was the attitude of the defendants? Did they know about it?

Serling: When I first got into the litigation, I was astonished by some of the evidence that was garnered against the leading culprits. There were many, many asbestos companies. Probably we count, many of our cases we sue 50 or 60 defendants. And then the bankruptcies, which I’m sure we’ll talk about, there have been perhaps 50 companies that have gone to Chapter 11 with assets, and they are also pursued in the bankruptcy courts around the country. But some of the evidence, in fact, I brought a couple, I don’t know if the camera can

Gornbein: well tell us about it because I know we talked about it before the show. 

Serling: The first thing I saw as a 30-year-old lawyer was a letter between two CEOs of some of the larger, the largest asbestos company, John’s Manville, and another company called Raybestos Manhattan. And they were discussing this in October of 1935. So, the letters back and forth deal with, how can we keep this latest evidence about asbestos diseases suppressed? Or, as they said in their letters, “the less said about asbestosis, the better.” So, I realized early on that there was a lot of evidence pointing to cover-up, conspiracy, actual knowledge, and so in the early years, when many cases were tried, that was the kind of evidence that was put into cases. The letters between corporate CEOs, the deposition testimony of dying witnesses who spilled the beans and said, “I was with the company and they decided to suppress the evidence.” And that’s why warning labels weren’t put on products for 20 years, and more.

Gornbein: So, you have a couple of examples.

Serling: I gave you some, and maybe you can get close-ups. Another one, I gave you the two letters between the corporate officials, but another one is a deposition of an elderly man who had been a CEO or a lawyer for a small company. The witness testified, “I’ll never forget. I turned to Mr. Brown, who was the president of Johns Manville, and one of the Browns made this crack that UNARCO managers were a bunch of fools for notifying employees who had asbestosis. And I said, ‘Mr. Brown, do you mean to tell me you would let them work until they drop dead?’ He said, ‘Yes, we save a lot of money that way.'” So, when you have evidence like this early on, you kind of say to yourself, “I think I have a pretty good case here.”

Gornbein: Did you have jury trials in the early days?

Serling: Yes, yes.

Gornbein: And were there some big verdicts?

Serling: In the early days many cases went to trial. It’s sort of like the industry and insurance companies were testing us to see if we could win cases. They were almost always two to three-week trials, we had to pay a lot of money to bring experts in from around the country, the medical epicenter of asbestos research in those days was Mount Sinai School of Medicine in New York. We would bring in the best, we’d want the best witnesses to testify. We had local doctors that were schooled, knowledgeable, the treating doctors, and so we tried many cases. And as a matter of fact, the first case that I tried was in the early ’80s, maybe 1981, and the lawyer on the other side was Bob Kraus, who recently passed away from Dickinson Wright. He was a very good trial lawyer, and they had a National Council that came for a lot of the trial. And it was not a cancer case; it was an asbestosis case. And we got a verdict of about $300,000. We were waiting for them to appeal because circuit cases were almost always appealed when you got a decent award and it took another two, three years, you would think to go through the appellate courts. One day I opened my mail, and I thought it was a notice of appeal, and it was a check for the award.

Gornbein: They probably didn’t want a record on appeal.

Serling: they probably didn’t. So, it was amazing, and then within about a year later, they filed for Chapter 11 protection.

Gornbein: And what was the impact? I mean, you had a lot of companies that went bankrupt. What happened?

Serling: Well, when initially the issue was, well, these companies have billions of dollars. How can you let a company with billions of dollars go into bankruptcy? And their argument was, “Well, there’s 16,000 cases around the country. This is 1982. And we extrapolate that the cases are only going to rise and that we’re going to be fighting a hundred thousand cases.” So, they convinced the bankruptcy judges that they needed protection, that even though their balance sheets were strong at that time, that eventually the insurance money was going to run out and that they were going to, in order to save the company, they had to create a plan where victims would be compensated, not as much as if you had them in a trial setting, where they would set aside assets for victims and for trade creditors and for all the other things. So, as it turned out, not only were they right that the cases would reach a hundred thousand, but cases eventually reached five or six hundred thousand, and I don’t even know what the latest figure is, but they were way under predicting, and so many other companies followed them into bankruptcy court. Companies like Owens Corning—this was John’s Manville was the first—and then companies like Owens Corning, United States Gypsum, National Gypsum, and Pittsburgh Corning, WR Grace, very well-known companies followed into bankruptcy. And it looked like the litigation might be over, but as it turned out, there were many other defendants, and many did not want to go into bankruptcy. And so, now we wind up with two tracks. We have court defendants that we can pursue, and we can also pursue those that went into Chapter 11. Usually, a certain segment of their profits, or their companies that are still operating, so they have to pledge a certain amount of their assets for victims, but it’s an orderly flow, and so we still get compensation from the bankrupt companies and also from the court defendants.

Gornbein: You mentioned there’s in Wayne County, there’s a specific judge who handles asbestos cases. So, is it like a mediation type of format? Or how does it work for our viewers?

Serling: Well, the asbestos judge in Wayne County, Bob Columbo, has been there for over 20 years, and he’s turning the reins over to Patricia Fresard. And they get all the cases, and so they’ve organized the dockets with the plaintiff’s bar and the defense bar. The judge will hold meetings regularly as a steering committee, and what’s going to streamline discovery. The cases are not mediated because oftentimes the fight is not between the plaintiff and the defendant, but between the defendants deciding who should pay more than the other because some of the products might have had lower percentage, some of the exposures might have been heavily weighted to another defendant. So, we are exempt from the mediation system. The court does hold settlement conferences, and the plaintiffs and defendants work hard to try and settle cases because trials are very expensive. And in a given situation, you might win a case, they might win a case, but when it all is said and done, it’s better for the process if you can resolve cases in a fair manner. And so in the last 15 years, I would say 99% of the cases settle because we’ve been through that era of trying every case, and nobody really was the winner on that.

Gornbein: You were the first. How large is the plaintiff’s docket as far as attorneys who now handle asbestos cases?

Serling: Well, the Michigan experience, there’s never been more than three or four firms that handle asbestos cases in Michigan. On the national scene, many, many attorneys have gotten into the act. And because firms that have money for marketing can advertise with 800 numbers on cable stations or on the Weather Channel or even on regular network television, there’s a lot of competition. That word “mesothelioma” is probably one of the highest pay-for-click words on the internet. And so we never advertised, we didn’t do much advertising. We had a whole network of unions that we had represented for years, and we had a very good reputation locally. But then all of a sudden, we had to deal with firms advertising from all over the country and we find that clients are often confused because they look at the advertisements and they don’t know where the firm is. There’s some kind of a hook word where they don’t know if it’s a Michigan firm or not a Michigan firm, and so we find that they like to see a Michigan law firm that’s involved in the litigation. It’s comforting, they know they can get an appointment quickly, they can see a lawyer face-to-face, somebody that’s knowledgeable about Michigan. So we push that a lot. We’re a Michigan mesothelioma firm.

Gornbein: There’s still a lot of litigation with regard to meso and asbestos, is that correct?

Serling: It is. And the reason for that is that is that the number of mesothelioma cases in the United States, although a rare disease, is still about 3,000. And that is still a straight line; it has not started to dip yet.

Gornbein: Why is that?

Serling: Well, because the disease is latent, and we think the latency could be 40 years now from first exposure. So, cases surface; sometimes people get diagnosed in their 80s, in their 70s. Most cases are above 60, 65. Most cases are older; not too many younger cases. We get those from time to time, but I would say that the cases that have diminished in number are the asbestosis cases. There used to be a lot more, and I would say the numbers of cases are down in the state of Michigan. They’re probably down by over 60% but the malignancy cases are plentiful; there’s many, many malignancy cases. And so, a typical docket that used to be 5% malignancies and 95% early-stage asbestosis cases is now 50/50 or sometimes 60/40 weighted with malignancy cases.

Gornbein: Plus, the malignancy is much worse.

Serling: Malignancies are stronger cases. Another aspect of Michigan law which is interesting is that not only the- I explained about the statute limitations, but in Michigan, the courts allow for a second case. If your first case was for a non-cancer variety, a scarring of the lung, asbestosis, and later on down the line you develop a lung cancer or mesothelioma, you get another chance to bring a case. So, that’s some of our cases. Many of our cases are people that had asbestosis in the ’90s and then wind up with mesothelioma 25 years later.

Gornbein: Tragic. You’re doing a service. We’re down to less than a minute. Michael, what are some final thoughts before we sign off?

Serling: Well, at my age, I’m very proud that I found a niche in the law that I could really help with. I was a school teacher, became a school board lawyer. I was a legal aid lawyer, and bringing justice to downtrodden people and I was able to convert that into bringing justice for victims of asbestos-related disease. I’m very proud of that.

Gornbein: You should be. Michael Serling, I want to thank you for being my guest on Practical Law. I want to thank you for watching Practical Law.

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