Toxic Justice

Lawyer Fred Baron says he's one of the good guys, fighting a war against evil asbestos manufacturers. But some former employees claim his firm is a factory that mass-produces lawsuits by implanting memories and inventing testimony.

The suit Baron filed, Yandle vs. PPG Industries, made headlines across the nation, in part because the second-year lawyer asked for $100 million in damages. But in 1975, Baron had to relinquish the case when he left Mullinax, Wells.

He started his own firm and quickly signed on other clients, including some additional Tyler plant workers who put him right back in the case, for which he eventually won a $2 million settlement. He started representing others exposed to radiation or toxic products, including a young woman named Karen Silkwood; in another case, he represented a number of low-income housing residents in West Dallas poisoned by lead emitted from nearby smelters.

In 1979, he hired his first associate, Russell Budd, who had just graduated from UT Law School.

Baron recalls the period as a sort of golden age for plaintiffs' lawyers. "The law started changing in the '70s. And there were liberal courts...the doctrines of products liability changed...and it became easy to win the cases. And the corporate conduct was, you know, awful."

In 1980, Baron added two more lawyers, and that same year, he married a young assistant district attorney named Lisa Blue, who would later join the firm. By 1986, he had eight lawyers, according to a lawyers' directory, and that year he changed the name of the firm to Baron & Budd.

"There were all sorts of exciting new theories of law," recalls Baron. "And by the mid-1980s, we were winning a lot of cases. A lot of cases."

By 1990, however, Baron had tired of the asbestos-litigation grind. "Between 1973 and 1990, I think I tried 62 individual asbestos cases," he recalls. "I tried three cases back-to-back in 1990 and lost all three of them, and said, That's enough for me."

This is not to say he had wearied of fighting the bad guys.
"Objective A is, obviously, you want to get the client compensation," Baron says. "But I'm a tinkerer, and I thought that the real reason to be filing these lawsuits is to stop these kinds of practices. Deterrence--I mean, that's what Page Keeton always said...he said the tort law is not a worker's compensation system."

Baron insists not only that the law can save lives, but that punishment is its true function.

"You know, my whole shtick in law school was that I thought everything ought to be regulated by the government. And I was one of these really left-wing guys that thought that every agency ought to control every piece of our lives, until I got out in practice and realized send OSHA down here to investigate, they find the worst conditions they've ever seen, and they fine PPG Industries $710.

"And I thought to myself, it probably took $710 in administrative time to write a $710 check. This is not gonna do. The only way we will stop this is by really going after their pocketbooks, through economic litigation."

Whether the possibility of "economic litigation" has ever stopped a corporation from dumping toxins or burying incriminating scientific evidence is hard to measure. There is anecdotal evidence--some of it from Baron's foes--that Baron is right. "Companies are painfully aware of the possibility of liability [for their products]," says Robert Thackston, a shareholder at the law firm of Jenkens & Gilchrist who has frequently crossed swords with Baron. "Nobody's throwing a dirty product out on the market these days."

The prospect of lawsuits has occasionally led to dangerous products' being taken off the market. Yet even here, government action is frequently required.

Asbestos is a case in point. As scientific knowledge of the dangers of asbestos spread during the '60s and '70s, new federal agencies such as OSHA used these studies to promulgate safety standards that, in many cases, asbestos manufacturers could not meet. By the early '70s, asbestos began to be phased out of the workplace.

Yet, as in the case of PPG, government regulation itself just results in the possibility of criminal and civil penalties. Baron argues that without lawyers like him, these penalties would often be ignored.

"In fact, I wrote a book in 1979 or '80, and I started getting into all of these philosophies and theories about, What is the purpose of the tort law as it applies to occupational-disease cases, and how do you get these companies to really do things? And I'd come to the absolute conclusion that the government was not going to regulate them...Reagan came into office, the agencies were gutted, and it seemed to me that the private attorney general case or the individual tort case was the very best way to go after these folks...The harder you can hit them, and the more times you can hit them, the better off we were."

He hit them by setting up a law firm that Baron estimates is presently handling 9,500 to 10,000 asbestos cases.

"We've been doing this litigation for over 20 years," Baron says. "And we have evolved a system that we think works very well for the manner in which we decide to handle cases."

But a few monkey wrenches have the potential to wreak havoc with Baron & Budd's well-oiled machinery.

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