Gotta love that redistricting.

It's about time for my semi-occasional post, and this one is a tribute to the Beaumont Court of Appeals, "tort reform," and Republicans everywhere.

The case is Mobil v. Bailey, and it's an asbestos case.

Mr. Bailey worked at a lot of different places and was exposed to asbestos at a lot of different places over a long period of time. And part of that asbestos exposure came while working for a contractor at Mobil. He also smoked for a long time. He died of lung cancer. (Since Mr. Bailey is no longer alive, he's obviously not a party to the case, but that's how I'll refer to the plaintiffs.)

It's pretty well accepted within the scientific community that smoking causes lung cancer. It's also pretty well accepted that asbestos causes lung cancer. It's also pretty well accepted that heavy smoking, in conjunction with long term asbestos exposure, has a synergistic effect and multiplies the risk many times over. And by "pretty well accepted," I mean generally regarded as established beyond a reasonable doubt.

So, for instance (and I'm just making these figures up for illustrative purposes), suppose someone has a smoking history that would give him five times the risk of getting lung cancer of a similar nonsmoker, and asbestos exposure that would give him three times the lung cancer risk of someone without any significant asbestos exposure. You might think he'd have eight times the lung cancer risk of a similar person who had no significant history of smoking or asbestos exposure. But you'd be wrong. He'd have fifty times the lung cancer risk. (Again, the specific figures are made up for illustrative purposes. There is disagreement within the scientific community about the extent of the synergistic effect. Figures as high as 92 times the risk find some support in the literature.)

That's significant in a toxic tort case because you have to be able to prove that the toxic substance in question was more likely than not a cause of the injury. If smoking quintupled the risk and asbestos exposure tripled it, and they operated independently of each other, then there'd only be a 37.5% chance that asbestos caused the cancer, and that's short of "more likely than not." But if, as described above, it's five times the risk for smoking alone, three times the risk for asbestos alone, and fifty times the risk when you've got both, the numbers suggest that there was a 10% chance that the cancer was caused by smoking alone, a 6% chance that it was caused by asbestos alone, and an 84% chance that it was a combination of the two. And that, of course, means that there's a 90% chance that asbestos was a contributing cause, and that's enough to get you to a jury.

At trial, Bailey's medical and epidemiological experts testified that this synergistic effect exists. They cited such things as the Surgeon General's report, multiple published, peer-reviewed epidemiological studies, and tons of other stuff from the relevant scientific literature. Mobil's experts said it existed too (although they claimed that it doesn't exist unless you also have asbestosis or asbestos exposure sufficient to cause asbestosis, which they said Mr. Bailey didn't have.)

Anyway, Mobil lost at trial and appealed to the Beaumont Court of Appeals. In it's appellate brief, Mobil said "the scientific community has recognized the concept of synergy in the asbestos concept" (and then went on to claim that the synergy exists only in patients who have asbestosis).

Bailey's brief stated: "It is also an undisputed fact in this case that smoking and asbestos exposure interact synergistically to create a lung cancer risk many times what either of them would pose individually. And it is an undisputed fact that James Bailey died of lung cancer. The only issue with respect to causation involves a theory posited by Mobil that asbestos cannot cause lung cancer in the absence of asbestosis, and that theory is that it is wrong."

And here's what the majority opinion of the Beaumont Court of Appeals had to say about it: "neither of plaintiffs' two causation experts made a sufficient showing that the relevant scientific community had generally accepted the concept of 'synergism.'" Seriously. Even though the evidence at trial showed that pretty much everyone in the scientific community from the Surgeon General on down, including Mobil's expert witnesses, regards the synergism as an established scientific fact, even though the point was undisputed at trial and uncontested on appeal, the court still said there was insufficient evidence. "No evidence," actually, since that's the legal standard of review they were applying.

The rest of the opinion isn't quite that bad, but it's close. The dissent does a pretty good job of telling them how they got it wrong, but apparently they weren't in the mood to listen. The dissenting opinion was written by a justice who used to represent asbestos defendants, by the way. I don't get the impression from the majority opinion that either of the justices involved had any experience with asbestos litigation or toxic torts before joining the court. They seem to lack even a basic grasp of how the law is supposed to deal with scientific evidence.

And just as an aside (not really an aside, more an illustration, but it was a genuine aside before I added the previous paragraph), the Supreme Court of the United States did away with the "general acceptance" test for the admissibility of scientific evidence in Daubert, and the Supreme Court of Texas followed suit in 1995 in E.I DuPont v. Robinson. Whether "the relevant scientific community had generally accepted the concept of 'synergism'" isn't even the right question.

And as a further aside, in case you were wondering, there is plenty of stuff from the relevant scientific literature that was presented at trial indicating that it's the asbestos exposure, not the absence or presence of asbestosis, that counts. Stuff like standard medical texts, what appears to be the only epidemiological study that was specifically designed to look for an answer to that particular question, and lots of stuff in the medical literature about the disease processes that indicates that the two diseases develop independently.

But all asides aside, I mentioned "redistricting" in the title, so I guess it's time to get to the real subject of this post. In a state where you have to have an (R) after your name to get elected to any statewide office, the Supreme Court rules against the tort plaintiffs at least 80% of the time, and "tort reform" tops the legislative agenda whenever the conspiracy's in session; the Beaumont Court of Appeals had been a where a plaintiff who convinced a jury of the rightness of his cause could go without having to worry about the court bending over backwards to try to find an excuse take away the verdict.

No more. The court got redistricted, adding a bunch of people from Houston suburbs and effectively making it impossible for anyone without the (R) to get elected. Even though the (R)s are the only party with which I've ever had any affiliation (including serving as a precinct chairman, election judge, and delegate to the state convention), I must admit that I'm less than pleased with the results. They make a great minority party; keeping the bad guys from getting too far out of line. I'm not too crazy about what they do when they get power themselves.

The American Tort Reform Association perennially picks Jefferson County, Texas, for its "Judicial Hellhole" honors. In its "Judicial Hellholes 2005" report, ATRA tells us: "Appellate courts continue to site [sic] abuse of judicial discretion in Jefferson (named the fifth worst Judicial Hellhole in 2004), Nueces, Hidalgo and Cameron Counties." If this case is any indication, you might not want to take those appellate courts at their word, guys. And by the way, guys, the word is "cite," like in "citation." Unless you mean that's where they're placing their abuse of judicial discretion. Idiots.

And now, back to the asides (although, I guess I already got back to the asides with the aside to the guys at ATRA, and the rest of these "asides" are really more digressions, except for this, which is more a parenthetical).

Anyway as one final aside, ATRA's motto is "Bringing Greater Fairness, Predictability, and Efficiency to the Civil Justice System." And they're working towards a system where the rule is that the plaintiff loses every time, no matter what the facts. Hell, it's predictable and efficient, so what if it comes up a bit short in the fairness department? Two out of three ain't bad.

"Sexual orgies eliminate tension and ought to be encouraged."

"Sexual orgies eliminate tension and ought to be encouraged."

So said Antonin Scalia, Associate Justice of Supreme Court of the United States, at a speech at the New England School of Law's Law Day Banquet on March 15, 2006.

I just don't get it. Why do liberals hate this guy so much?

Those Darned Supremes.

Back when I was working as a law clerk for a federal judge, part of my job was to open court with the words "Hear ye! Hear ye! Hear ye! The United States District Court for the Eastern District of Texas, holding a regular session in Beaumont Texas, is now open according to law. God save this court and these United States."

Tradition requires that one bow one's head while saying that last line. Because it's a prayer. The Supreme Court of the United States opened court this morning with a similar prayer, and then held (in a split decision) that the Constitution prohibits the display of the Ten Commandments in the courtroom. Something about an impermissible endorsement of religion or something.

Yet another reason to avoid Galveston.

As if crummy beaches and murky water weren't enough, the Galveston cops have adopted a "zero intelligence" policy when it comes to the most insignificant of traffic violations. For instance, hauling people off to jail for things as trivial as an expired registration or inspection sticker. Seriously.

A few years back, the Supreme Court of the United States held in Atwater v. City of Lago Vista that it was just fine to haul folks off to jail for seat belt violation, even though the maximum penalty if actually convicted of the offense was only a fine. As a matter of Constitutional Law, they may have been right. As a matter of common sense, it's ridiculous.

Instead of giving us another round of "tort reform," I wish that next time around the Texas legislature would write a law that says the cops can't take you to jail for offenses that don't include jail time as one of the allowed penalties. You'd think that the cops (and those who give them their marching orders) would have enough sense that such a law wouldn't be required. But it seems that they're intent on behaving like pea-brained jack-booted thugs. Too bad they can't be trusted even to write minor traffic tickets without legislative oversight.

I knew that couldn't be right.

After frittering away a considerable chunk of the taxpayer's change on its successful attempt to whittle the Big Five accounting firms down to four, the "Justice" Department today saw its obstruction of justice conviction against Arthur Andersen unanimously overturned by the Supreme Court. You can read Chief Justice Rehnquist's opinion here.

It appears that it's not enough to do something that the government doesn't like for an obstruction of justice conviction; you actually have to do something that's illegal. This fine legal distinction seems to have been lost on the prosecution, the trial judge, and the Fifth Circuit. For some reason, this case had to go all the way to the Supreme Court before the Government could bring itself to accept that you can't prove that someone "knowingly... corruptly persuaded" someone to do something without showing that he knew that the something he was persuading that someone to do was in some way corrupt.

No word yet on what the Government will be doing to make it up to the 28,000 people they put out of work with their unfounded prosecution. And remember, folks, this is the same administration that rants endlessly about plaintiffs' lawyers filing "frivolous" lawsuits.

That darned legislature....

To amend the Texas Constitution, a proposed amendment has to be approved by two-thirds of each house of the legislature and then submitted to the voters for approval. House Joint Resolution 6 has now been approved by both houses. It'll be on the ballot November 8, 2005. Here's what it says (in the relevant part):

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Yup. You read it right. The plain language of the HJR6 would prohibit the state from attaching any legal significance to the institution of marriage. Not just gay marriage, but any legal status "identical or similar to marriage."

Do they know what the word "identical" means?

One of the primary rules of construction is that if the plain language is unambiguous, you don't look at legislative intent. Which means, in a case like this, that you look only at what they actually said, not what they meant to say. And in this case, the plain language of the amendment defines marriage and then prohibits the state from affording marriage (or anything resembling marriage) any legal status.

Idiots???

I wonder.

(My first thought about this was that it's an amusing example of legislative ineptitude, but wouldn't really change anything because marriage is a fundamental right protected by the United States Constitution. On further reflection, I'm not so sure. The Supreme Court of the United States held in Loving v. Virginia (and other cases) that the right to marry, at least as it has traditionally been understood, is a fundamental right protected by the Fourteenth Amendment. But the plain language of HJR6 wouldn't interfere with people's right to marry; it would only prohibit the state from affording marriage any legal significance.)

A Musing on Gun Control

As controversial as the issue is, you might think that gun control would have been studied to death by now. And you'd probably be right. Nevertheless, when the Centers for Disease Control reviewed the extant scientific literature, it found that there was insufficient evidence to evaluate the effectiveness of gun control laws. Naturally, they concluded that more research is needed. You can read their findings here. Or you can just read between the lines. If gun control laws provided any signigficant public safety benefits, how come they're so darned hard to find?

In other news, the BBC reports that, in an article published in the British Medical Journal, researchers have determined that long pointy knives have no legitimate culinary purpose and should be banned.

I kid you not.

What about asbestos?

Laurie asks:

"[C]an you do me a favor and explain here at The Lawyer's Drudge what's going on in Washington regarding asbestos litigation and how it affects Texas? And, more importantly, how it will affect this poor little asbestos law firm paralegal. And, even more importantly, how it will affect this poor little asbestos law firm paralegal's upcoming summer bonus."

The Senate Judiciary Committee just approved the ominously titled "FAIR Act of 2005." This piece of legislation would essentially end asbestos litigation and replace it with an administrative program. For the defense side, if this passes, asbestos litigation is over.

Basically, if you're not in trial when the law goes into effect, the lawsuit is over and the plaintiff is stuck with the administrative remedy. For an asbestos law firm's paralegal (especially on the defense side), this is not at all a good thing. Plaintiffs' lawyers will still have something to do in shepherding cases through the administrative proceedings (subject to a 5% fee cap), but defense lawyers will have no more to do with asbestos that they do with Workers' Compensation or Social Security.

On the short-term upside (from the Texas asbestos defense paralegal's perspective), recent changes to Texas law have encouraged Texas asbestos plaintiffs firms to get as many cases "in trial" as possible by September. The new Texas law prohibits trying asbestos cases in groups, making it economically unfeasible to try cases with less serious injuries. It applies to cases not yet in trial come September. It'll hurt plainitffs and plaintiffs' lawyers and increase the burden on the courts, but defense lawyers should do fine and defendants will make out like bandits. And it has plaintiffs' lawyers scrambling to get as many cases in trial before the cut off. So there should be tons of work to do over the summer.

After that, though, if the "FAIR Act of 2005" passes, The Lawyers' Drudge would be happy to give you a glowing reference.

As far as your summer bonus is concerned, it comes down to whether your employers want to keep you happy while they're swamped with work, or whether they figure they'd better just grab all they can for themselves before it's too late. You'll have to figure the answer to that one out for yourself.


You can read what Reuters considers the key aspects of the bill here.

You can read the official bill summary (with links to the text) here.


A note about being "in trial": Although it's not defined in the Texas statute, The Lawyers' Drudge's research indicates that the commencement of trial under Texas law occurs when the parties begin the opening statements. Under the FAIR Act, a case isn't "in trial" until the presentation of evidence starts.


And now The lawyers' Drudge's C.Y.A. disclaimer: If there's money at stake, don't rely on what you read on the Internet. Do your own damn research. I'm not your lawyer and I'm not giving legal advice.