Behrens and Goldberg Discuss Asbestos Litigation Reform

Shook, Hardy & Bacon Public Policy Co-Chair Mark Behrens and Partner Phil Goldberg authored “Asbestos Litigation Reform Momentum Builds in US” for the March 2016 issue of Financier Worldwide, examining asbestos litigation abuse and measures taken to counter it.

The authors note that, over the 40 years of asbestos litigation in the U.S., manipulation of the legal system for unfair gain has been a problem, and courts and legislatures have taken corrective action when abuses have arisen. While previous reforms “greatly diminished the economic incentive for plaintiffs’ lawyers to bring claims on behalf of the non-sick,” Behrens and Goldberg state that “we are now in a new era of reform that focuses on transparency regarding plaintiffs’ asbestos bankruptcy trust claims.”

Behrens and Goldberg describe a “systemic manipulation of the civil justice system,” in which plaintiffs have been allowed to “double dip” and receive settlements in personal injury lawsuits and additional payments from multiple bankruptcy trusts, all for the same injury. The authors cover evidence of this manipulation exposed in the recent Garlock Sealing Technologies, LLC bankruptcy case.  The authors continue: “[T]rust claim manipulation and abuse is not victimless. In addition to harming defendant companies, their employees and insurers, personal injury lawyers are depleting assets needed by future asbestos claimants.”

Behrens and Goldberg cover pending legislation that could help to address this lack of transparency. They conclude, “We expect that momentum will continue to build and that more reforms will be enacted to stop the courts from being gamed by the asbestos personal injury bar.”