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.

In addition to asbestosis, the CDC says, there "are two types of cancer caused by exposure to high levels of asbestos: cancer of the lung tissue itself and mesothelioma, a cancer of the membrane that surrounds the lung and other internal organs. Both of these are usually fatal...Interactions between cigarette smoke and asbestos increase your chances of getting lung cancer." Some studies have also suggested that "breathing asbestos can increase the chances of getting cancer in other parts of the body (stomach, intestines, esophagus, pancreas, kidneys), but this is not certain."

Such clinical descriptions do not, however, convey the true horror of fatal asbestosis or mesothelioma. An internal Baron & Budd document provides a glimpse of the final days of one mesothelioma victim. "Willie [the client's son] starts his day at 6 a.m. each morning by giving his father his first pain medication...(90 milligrams morphine) is given at 6 a.m., 2 p.m., and 10 p.m. His father's other medications are given at 8 a.m. and 4 p.m.

"The only food that his father gets is Carnation Instant Breakfast...mixed with milk...He sometimes eats eggs or grits, but only about twice per week.

"After medications and food, his father spends the day either laying in bed or getting up and walking around approximately three times/day...Willie said that because of the high dose of morphine his father usually just lays in bed staring at the ceiling or dozing off.

"His father can walk to the bathroom, but has limited control of his bowels. He does mess in his PJs and around the house. He can brush his teeth and shave himself, but doesn't do it well."

While horrific, such scenes take place in a distinct minority of the cases Baron's firm handles. According to Baron, 3 to 5 percent of his clients have mesothelioma. Another 10 to 12 percent, he says, are lung cancers, and from 2 to 3 percent are "other cancers." A number of epidemiologists' studies forecast a declining number of mesothelioma cases, though Baron says the severity of the cases is no different today than it was 20 years ago.

By Baron's own estimate the remaining cases--around 80 percent--are either asbestosis or "pleural disease," a term that describes a variety of changes in the lining of the lung that show up on X-rays.

In the absence of surgery or autopsy, lung specialists rely on X-rays and breathing tests to diagnose an asbestos-related illness. As the CDC notes, "[c]hest X-rays cannot detect asbestos fibers, but can detect early signs of lung disease caused by asbestos."

As suggested by the Manville Trust's David Austern, increasingly, workers are suing based on X-rays showing they have pleural disease or nondisabling asbestosis. In many of these cases, the men have no scientifically measurable lung impairment; a suspicious X-ray is all the evidence of disease that is present. Baron concedes that in many of these cases the finding of an asbestosis-related disease "seems to be in the eye of the beholder."

Yet this doesn't stop the men from filing suit and winning. Baron & Budd regularly argues that these mild diseases will progress into far more serious ones. In fact, the fear that the workers' illness will progress, no matter how medically unlikely, is one of the main elements for which the workers can recover monetary damages.

Soon, even the tenuous requirement for evidence of physical injury--the suspicious X-ray--may go by the wayside. Some recent cases have held that workers can recover monetary damages for fear of cancer based on asbestos exposure alone.

At least one Texas appellate court has held that a person who was exposed to asbestos but has no "asbestos-related disease symptom, or impairment" can nevertheless recover damages for fear of cancer. That case is on appeal to the Texas Supreme Court. Even if it is overturned, it will not stem the so-called "pleurals," many of them now classified as asbestosis, which Baron admits are overwhelming the courts.

In 1982, when Johns-Manville sought bankruptcy protection, some 24,000 asbestos-related lawsuits had been filed. By 1990, as the number of cases grew exponentially, a special committee of the U.S. Office of Court Supervision was directed to study how to deal with the asbestos suits flooding the federal courts.

Refreshing memories
Asbestos workers often find their way to Baron & Budd after a health screening arranged by another law firm and a trade union.

Together, the union and the local law firm round up a group of the skilled laborers who constitute Baron & Budd's clientele, sending out notice of the free screening. The men, many of whom know someone who died from asbestos disease, come from miles around.

According to trial testimony from doctors, the union and the law firm pay for a lung doctor to examine up to 200 men a day using equipment rented from a local hospital or hauled in by the doctor in a tractor-trailer rig. The union men are X-rayed, and the films are usually developed on the spot. Frequently, an attorney is standing by to sign up anyone whose examinations show any evidence of asbestos exposure.

After the workers are X-rayed and referred to a lawyer, the local attorney typically sends the case to Baron & Budd. (According to Baron, the referring firm usually gets up to one-third of Baron & Budd's 40 percent contingency fee.)

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