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Mesothelioma victims deserve better than wasteful legal maneuvers

The macabre zero-sum game squanders millions of dollars and blights the mesothelioma patients' final days. The obvious alternative is to deal with asbestos claims administratively.

April 22, 2012|Michael Hiltzik
  • A video still shows John Johnson during the 12th day of his deposition in his asbestos-exposure lawsuit. Johnson collapsed within 40 minutes of answering the final question, and he died the next day.
A video still shows John Johnson during the 12th day of his deposition in…

John Johnson died three months ago, his body racked with malignant mesothelioma, a disease that's almost always caused by asbestos exposure. The Marine veteran had sued dozens of companies he believed shared responsibility for his condition, but he never got his day in court.

Here's the horrific question now: Did asbestos industry lawyers deliberately drive Johnson to his death by putting him through a brutal series of depositions so their clients would save money?

That's what his family, his doctor and his lawyers assert. Despite affidavits from his doctor stating that 12 hours of depositions over a few weeks would be about as much as the 69-year-old's health could stand, a Los Angeles Superior Court judge allowed the companies he was suing a total of 25 hours.

Johnson put off returning to the hospital so he could appear at every session, including the last, on Jan. 23. His face contorted in pain, he gasped out answers to questions from the last of the dozens of defense attorneys in attendance. Less than 40 minutes later, he collapsed.

The very next day he died at Hoag Memorial Hospital in Newport Beach. With him died his family's claims for pain and suffering, mental anguish and bodily disfigurement, reducing their potential recovery in or out of court by as much as 70%, in the assessment of his attorney, Roger Worthington. What's left are chiefly claims for medical bills and lost wages and for his wife's loss of his companionship.

Johnson's family, his lawyers, and his doctor have no doubt that the defense lawyers stretched out the legal process through what the family contends in court were "delay tactics and stalling," in the expectation that he would die before he reached the finish line.

"I couldn't believe that we had spent so much time trying to save this guy and these other people come in really trying to kill him," says Johnson's thoracic surgeon, Robert B. Cameron of UCLA Medical School. "You can tell when a lawyer is smelling death — they were pounding him with the same questions over and over again."

Says Johnson's widow, Sue: "We tried to keep faith with the law, because that's what you had to do to get justice for his excruciating pain. And that's what accelerated his death. I don't understand how the justice system can work like that."

Nobody does. And that's the real crime in what happened to John Johnson.

It's not rightful to blame defense attorneys for killing Johnson. Once a personal injury case gets into the legal wringer, all the parties are condemned to play out their roles, plaintiffs and defendants alike; this Darwinian struggle is especially stark when a terminal disease is involved.

"Anybody who gets sued for millions or tens of millions of dollars has the right to defend themselves," says Robert E. Thackston, a Dallas product liability lawyer whose firm represents several defendants in the Johnson case. "To say they're not entitled to go ask these questions because the guy is sick is really not fair."

Asbestos injuries, which stem from industry's coverup of the hazards of the material dating back some eight decades, overpower the ability of America's adversarial tort system to balance competing interests. As a committee appointed by then-Chief Justice William H. Rehnquist put it in 1990: "This is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s."

Today asbestos cases constitute the largest body of mass tort litigation in the U.S. And it's a monstrosity. The problems identified by Rehnquist's committee 20 years ago persist today: long delays, oppressive trials, the constant relitigation of settled issues, and legal costs overwhelming victims' recovery by a margin of 2 to 1. The bankruptcies of scores of companies have wiped out the sources of compensation of hundreds of thousands of victims, and sent them scurrying to find other deep pockets.

Johnson's case illustrates every one of these shortcomings. The Newport Beach man worked as a carpenter, auto mechanic and plumber from 1961 until 1990. He was a water skier, a motorcycle racer, an avid cyclist. Then one day in early 2010 he couldn't catch his breath during a ride. Eventually he was brought in for surgery at the Veterans Affairs hospital in Long Beach.

"The surgeon opened him up, then closed him up and told him to go home and die," Sue recalls. "That's just the way he put it."

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