In a recent AMERICAN LAWYER article ("Asbestos Removal"), Alison Frankel argues that "case filings show a precipitous decline since 2003" for some defendants and quotes a onetime asbestos defense attorney to support the argument that "the litigation hurricane has passed." Although the article mentions that asbestos defendants "vehemently dispute" the notion that asbestos litigation is on the decline, Ms. Frankel's article may be missing the mark altogether. While it may be true that, by the numbers alone, asbestos filings are on the decline, especially for many of the traditional defendants -- what about the hundreds of new asbestos defendants that have entered the picture in recent years? This author has, for the past year, regularly commented on the multitudes of new "non-traditional" asbestos defendants and new avenues of recovery for plaintiff firms. Some of these defendants have already taken their first verdicts -- and those defendants are in it for the long-term. Asbestos litigation is real and on the upswing for them. To think that plaintiff firms are riding off into the sunset is to truly misunderstand the present state of the litigation. The litigation is changing and adapting, and few would suggest that it is going away anytime soon.
Infamous plaintiff attorney, Perry Weitz, is quoted in the article as saying "I wish I still had 50,000 cases, but now this is a case-specific litigation." Does the decline in volume mean that asbestos litigation is on the decline? Or is it as dangerous as ever? Based on recent verdicts and the numbers of new non-traditional defendants we are still seeing, I'll go with the latter. What is dangerous is that more and more people on the outside looking in view the litigation as a passing hurricane. They believe the storm can be weathered by merely waiting it out. Defense counsel, for one, cannot afford to take that attitude. Just as plaintiff firms are always searching for new avenues of recovery from new and diverse defendants, so too must the defense counsel search for innovative ways to respond to the changing litigation.
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ERIC C. GENAU is an attorney at the law firm of Kenney Shelton Liptak Nowak LLP, and represents insurance carriers and self-insured companies in connection with claims and lawsuits for exposure to toxic substances across New York State. KSLN has been heavily involved in the defense of toxic tort and mass tort cases for many years, including the development of national defense strategies in its role as National and Regional Coordinating Counsel. KSLN maintains offices in Buffalo, Rochester and New York City.
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