Fair Play for Navy Veterans

Mesothelioma has a particular affinity for navy veterans. Caused by asbestos, mesothelioma is a cancer that begins in the lining of the lungs or abdomen and requires timely, rational, cutting edge therapies to provide maximal help for patients. Survival rates from the time of diagnosis may measure in weeks or months, depending on factors such as staging, cell type, age, and the therapies used. ^[1] Navy veterans suffer disproportionately from this cancer, and shipyard cities like San Diego, Seattle and Los Angeles reflect this in the number of people there who die from mesothelioma. ^[2]

Just like they need medical care, navy veterans need a level playing field in the courts.

Navy vets who pursue civil claims are confronted by loopholes in the law that allow shrewd asbestos defense lawyers to either harmfully delay the prosecution of a claim (called "federal officer" removal to federal court), or delay the claim altogether (called the" MDL Black Hole").

These two procedural weapons have been sanctioned by the federal government, which ultimately must answer to the most massive, unforgivable miscarriage of justice in the history of this country. The solution? Court sanctions for frivolous removals whose primary objective is delay and an order from the US Supreme Court voiding the 1991 order that created the "black hole."

In the Navy

Naval ships built from the 1930's to the mid-1970's used asbestos in numerous components, but nowhere more intensively than in the engine and boiler rooms. Navy machinists, officers and sailors breathed in the lethal asbestos while repairing, maintaining or replacing hi-temp equipment. These hot, dusty, below-deck compartments were often thick with asbestos fibers, and 8-hour work shifts in the engine room were as lethal as swimming in any toxic soup. Navy personnel and civilian shipyard workers oftentimes tragically brought the poisonous fibers home to their families as dust that covered their hair, skin and clothing.

As a result, of the 4,000 Americans diagnosed with mesothelioma every year, about a third were exposed in the navy or in navy shipyards. This number does not include family members who contracted the illness from the "take-home" asbestos.

It can take as long as 50 years from the time of exposure to the onset of mesothelioma symptoms. ^[3] When the victim of asbestos poisoning gets diagnosed, the shock is extraordinary: primary care physicians who know little about mesothelioma treatment options may deliver the news by saying, "Get your affairs in order and take a long cruise to Tahiti." ^[4]

For a navy veteran or shipyard worker who was poisoned aboard a seagoing vessel, being advised to "take a cruise" is its own special kind of irony. Although veterans with asbestos cancers face treatments that are expensive, elusive, and daunting, excellent medical care is available with specialists such as Dr. Robert Cameron of UCLA's David Geffen School of Medicine, and each year more and more mesothelioma patients find their way to his office. Regrettably, as we have written before, the VA does not have a current mesothelioma research and treatment program for vets.

Double Ordeal

Treatment options do exist to extend the life of some mesothelioma patients. Surgery, chemotherapy, radiation, and immunotherapy are all part of the specialist's arsenal. ^[5] Once the treatment begins-treatments which can drain a family's financial resources-many patients seek legal redress. They need to pay for travel, for the expensive chemotherapy and surgery. They need compensation to make up for lost wages, or loss of future earning capacity. And they need it fast. The only thing that grows more quickly than the tumor is the stack of medical bills.

The defense knows that time is not on a mesothelioma patient's side, so they attempt to "run out the clock." When a mesothelioma patient files his case in state court, alleging exposures while serving on a navy vessel, the asbestos company lawyers lick their chops. Why? Under a tortured reading of the rules of jurisdiction, they contend that federal law, not state law, should apply. The product manufacturer's theory is that they made, sold or used asbestos inside Navy ships because they were ordered to do so by the federal government. Consequently, they argue, the case should be removed from state to federal court.

Why would an asbestos company care if the case was heard in state court or federal court? The answer is in the question. Victims want access to a jury. Defendants despise juries. Delay is a victim's worst enemy. Conversely, delay is the mass poisoner's best friend. The fact is that if you've got mesothelioma and you served your country in the navy, if your case gets removed to federal court, you will never see a jury trial. Never.

In many states such as California, if a case is not resolved during the life time of the patient, and the patient dies from his cancer, then a big percentage of his compensation expires with him. States like California do not allow widows to recover the damages for the decedent's pain, suffering, anguish, and bodily disfigurement. The law penalizes the victim for dying of his injury, and rewards the poisoner for making a product so lethal that it kills quickly. The law rewards the bad guy for hiring lawyers who know how to manipulate the procedural law so that their corporate client gets a windfall when the case drags on and their victim perishes.

How the Shell Game Works

When a navy veteran with mesothelioma files a personal injury lawsuit in state court, the corporate defendant will often invoke a federal rule that allows it to "remove" the case from state to federal court (think of it as an automatic transfer from a state courthouse to a federal courthouse down the street). The wrongdoer will contend that federal not state law should apply. Their argument is that when a claim results from actions directed by a federal officer, the best place to try the case is before a federal judge in federal court with a federally empanelled jury under federal law.

As Jeffrey Simon, one of the top asbestos trial lawyers in America says, "If they want to try the case in federal court, great. Bring it on. But that's not what they want. They want to delay until the plaintiff is dead or the case vanishes into the MDL 'black hole,' never to see light of day."

When the wrongdoer files its motion to remove the case to federal court, the stakes become life or death, because if the case is successfully removed it is assigned to a special multi-district litigation (MDL) federal court inPennsylvania. ^[6] The asbestos MDL is commonly referred to as "a black hole" because cases sent to it languish with no discovery or trials every taking place ^[7] while the victims die awaiting a trial that will never occur. The injustice is so great that it mirrors the horrific "Trial" by Franz Kafka.

The solution is simple. Give the patients their day in state or federal court by voiding the judicial order that created MDL-875. And if defendants continue to trot out feeble arguments simply to delay, slap them with sanctions.

Outrage by the Court

To understand the finality of having your case removed to federal court and then sent to MDL-875 in Pennsylvania, consider the following from a memorandum filed with federal court in South Carolina protesting the "black hole": ^[8]"The data collected by the Judicial Panel on Multidistrict Litigation clearly illustrates what an empty promise MDL-875 is, even for the sick and dying. By August 10, 2000, more than 86,000 cases had been transferred to MDL-875. Yet, during Fiscal Year 1998 only four cases were remanded back for trial. In Fiscal Year 1999, only six cases were remanded back for trial."

Other courts have recognized the injustice of the current scheme. ^[9] Veterans with mesothelioma, quite simply, deserve their day in court.

The defendants who intentionally used asbestos knowing that it would disable, injure, and kill those exposed to it, deny that removal to federal court is a delay tactic. They argue that that removal to federal court is perfectly allowable because of the federal officer rule cited above.

The argument that removal to federal court is proper under "federal officer" jurisdiction for navy veterans with mesothelioma is both absurd and cruel. Stripped of all the gobbledygook, the asbestos companies are claiming that the navy ordered them to use asbestos without warning about the dangers. They are claiming essentially that the federal government put a gun to their head and commanded them to use a deadly product and, presumably over their sincere and overwrought protestations, commanded them not to warn about the danger.

Can you imagine that? The same companies who tested the asbestos, knew about the dangers, concealed the dangers from the consumers, thwarted medical research on asbestos, and raked in the profits, stand in front of a judge and argue with a straight face that they, as good humanitarians, wanted to warn, but were ordered not to by the bad old Federal Government, which of course everybody loves to hate (unless you're one of their favorite no big contractors).

No defendant has ever shown, after thousands of asbestos trials, that any federal officer ever directed a defendant not to warn of asbestos hazards, through the use of placards, notices, placards or manuals. To the contrary, military specifications manuals instructed that manufacturers of shipboard equipment were specifically permitted to provide "notes, cautions and warnings" in the technical manual "to emphasize important and critical instructions . . . in accordance with the following definitions: . . . (c) 'Warning" - Operating procedures, practices, etc., which will result in personal injury or loss of life if not correctly followed.'" ^[10]

Jumping through the flaming hoops to douse this silly claim takes time off the clock while both sides brief the issues, set the motions for hearing, argue the motions, and sit idly by while the federal judges huddle and make their decision. Though federal courts will often deny the wrongdoer's request and send the case back to state court, by the time the wheels of justice have lurched forward the patient has lost precious time. The simple solution is to stop allowing MDL to swallow up these cases.

Lawyerly Lies

For wrongdoers, threatening a victim with federal court removal is win-win. If the case gets removed, it is sent to wither away in the basement of a federal court in Pennsylvania. If the case is returned to state court, the plaintiff has lost valuable time because his mesothelioma has likely progressed.

A former machinist on an aircraft carrier and mesothelioma patient put it like this: "These companies made a bunch of money selling their equipment to the navy without warning us that decades later we'd be dying from using it. I think the officers on my ship were as uninformed about asbestos as the rest of us. They didn't make the boilers, or the turbines, or pumps, or the gaskets or pipe covering. The navy wasn't negligent then, but if they continue to do business with these corporations that are killing us and covering it up, and if the federal courts allow the crimes to continue, then maybe my government is negligent now. I guarantee it, if the Navy threatened to stop ordering equipment from GE or Westinghouse, they'd 'fess up and settle real fast."

Tell the family of Admiral Elmo Zumwalt that they should not grieve the loss of their father, who died of mesothelioma. Tell the family that Admiral Zumwalt was responsible for his own demise, because he supposedly ordered corporate America to sell the navy asbestos lade machinery without warning sailors about the dangers of asbestos.

The time to help navy veterans get their day in court? After more than 86,000 miscarriages of justice, perhaps the time is…now.

*** POSTED MARCH 26, 2007 ***