By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Budd denies that they moved the case to hide Dr. Epsteine from a new set of defense lawyers unfamiliar with the problem in Dallas.
"There's about 25 different jurisdictions where these cases at that time could have been filed in Texas," he says. Where his firm chooses to file, he adds, "is pretty much random."
Random or not, none of the defense attorneys the Observer contacted in the Cameron County case was aware the case had been dismissed in Dallas County and refiled.
"They really knew what they were doing on that one," marvels one defense lawyer, who represented a manufacturer in the Smith case filed in Dallas, speaking on condition that he not be identified because he fears retribution from Baron & Budd. "They know that all of these defendants have different lawyers in Cameron County than in other counties. It's so far away, and they want to save on travel costs. And everyone just feels they must have local counsel there."
Several attempts to reach Smith and La Barbera for comment were unsuccessful. Smith's case was eventually settled for more than $100,000.
The notes from the Calhoun "depo prep" session contain specific guidance on how to avoid problems with the statute of limitations: First, you "explain S.O.L to the client," then you "quiz client on S.O.L. to see what their answers will be." In other words, tell them the law and how it could affect their case before they tell you the facts.
Baron himself is explicit. Not only is this approach permissible, but professional guidelines for lawyers make it mandatory.
"The lawyer," says Baron, "needs to sit [with the client] and say, 'Now, before I ask you whether you've been diagnosed by another doctor, you need to know that if you have been, your case will be barred by the statute of limitations. Now, have you been diagnosed by another doctor?'
"Does that mean I've gotten the client to lie?" Baron asks. "You know, if you don't like that, then you don't like the way law is practiced.
"And do we suggest testimony? Of course we do," says Baron, who nevertheless insists his employees never suggest false testimony. How does he guarantee this? Baron says he has outside speakers come in periodically to lecture on ethics.
But while internal Baron & Budd memoranda contain plenty of suggested answers to questions, they have few cautions to ask whether any of them are actually true.
A December 1993 memo provides an example. At the time, Baron & Budd lawyers Peter Kraus and Andy Waters were trying a case against Owens Corning in a Dallas courtroom. Two of their clients, Willie Thompson and Lloyd Dodds, had worked for years at the Alabama Dry Dock Shipbuilding Co., near Mobile.
During the trial, an attorney representing Owens-Corning tried to introduce several issues of a company-produced newsletter called Fore and Aft, which was apparently distributed to employees of the Alabama Dry Dock Shipbuilding Co. while both Dodds and Thompson worked on the docks. The publication contained warnings that employees should wear masks to guard against hazards such as asbestos.
In other words, the newsletters constitute at least some evidence that Thompson and Dodds may have been warned to wear respirators, a fact that might provide a basis for reduction of their damages.
On December 8, 1993, Waters dashed off a memo warning fellow employees about the publication, suggesting testimony to be adopted by future Baron & Budd clients who worked at the state docks:
"Witnesses should be properly prepared concerning Fore and Aft, especially in terms of the fact that he probably never reviewed the specific issues presented and generally these were available to be picked up on the way out of the facility but were not read by the employees." As with most of the internal Baron & Budd memos in the Observer's possession, there's no warning to make sure the suggested stories are the truth.
"What I wanted to make sure didn't happen...was that the clients, that we hadn't discussed with them whether they'd ever seen this publication before," Andy Waters explains.
Two more memos--one of them authored by Russell Budd--go to the very heart of the notion that a plaintiff would not have continued to work with asbestos products if he had been properly warned of the risk.
In a memo dated July 25, 1994, Budd suggests both a proper question and answer to deal with this issue:
"Q: 'What would you have done if the container of Kaylo had a warning label advising you that asbestos could kill you?'
A: 'I would have stopped working with the product immediately.'"
Budd says he did not mean to suggest clients should testify thus if it isn't true.
Yet even Baron admits that it is doubtful a client would have quit his job if the asbestos bag contained a warning. "Our position is that they did not know the magnitude of the risk. Did they know that it was dangerous? Of course they did. We can't argue that they didn't."
Two out of 12 Baron & Budd clients interviewed by the Observer admitted they continued to work around asbestos long after they knew it was dangerous. And public records from their lawsuits show they testified otherwise.