Breaking the logjam of injustice

May 6, 2008

Our mission is simple: we want our day in court for plaintiffs dying from mesothelioma. Federal multi-district litigation docket 875 has obstructed that end and requires reform. If the judicial panel that oversees MDL 875 refuses to fix the problem after appeals through the proper channels, then we welcome the intervention of the US Senate to hold hearings and pass legislation that will remedy this injustice.

Our firm reported in March 2007 that navy veterans suffering from painful, aggressive, and terminal mesothelioma have had their day in court buried forever in the federal court responsible for asbestos litigation. The infamous “black hole” multi-district litigation docket to which these cases are removed continues to obstruct the rights of mesothelioma plaintiffs to a speedy jury trial.

A star chamber for the 21st Century

MDL 875 is a holding tank that was created to resolve pre-trial issues and questions of fact that are common to asbestos cases, settle the cases if possible, then return the cases back to the originating federal court for trial once the pretrial issues were resolved or when settlements could not be reached.

The hope was that the One Big Federal Court Program would prevent each district court in each major city from having to go through the lengthy, repetitive process of answering the same pretrial questions over and over and would provide a centralized court that could set up rules for settling cases. It would allow defendants and plaintiffs to quickly get down to the business resolving their case.

The judge presiding over the MDL was imbued with extraordinary powers to influence settlements, resolve pretrial issues, and remand the case for trial.

The current presiding federal district judge, Judge James Giles of the Eastern District of Pennsylvania, took over the multi-district asbestos docket after the death of Judge Charles Weiner in 2005. Judge Weiner resolved thousands of cases, yet thousands more remain holed up in the MDL. An estimated 3,000 of those cases are by malignant mesothelioma plaintiffs, in extremis claimants whose life expectancy is measured in weeks or months.

The key complaint from numerous plaintiffs is that Judge Weiner didn’t settle common questions and he didn’t coordinate. He acted as a forced arbitrator, letting plaintiffs know that they could either settle or see their cases stuck in MDL forever. This gave defendants tremendous leverage, especially with meso cases, because the single biggest tool for justice—a trial in front of a jury—was effectively taken away from plaintiffs. Defendants responded with miniscule settlement offers, or none at all.

The new MDL judge, Judge Giles, has signified that he will continue what Judge Weiner began. His only forward movement on asbestos litigation has been his attempt to dismiss thousands of asbestosis lawsuits that defendants claim were diagnosed by fraudulent doctors. While stalwarts in the pro-asbestos world such as the U.S. Chamber of Commerce have lauded this move, the life-and-death issue of cases filed by mesothelioma victims remains untouched.

How a meso case gets stuck in the black hole

The MDL order does not contemplate that the MDL judge will hold onto cases forever, without remanding them to federal district court for trial. Instead, it creates a framework where a plaintiff files suit, the case is removed to the MDL docket to resolve and coordinate common pretrial questions of law, and then “remanded” back to district court so the trial can proceed if a settlement cannot be reached.

MDL 875 proceedings include the development of cases for settlement, trial or other disposition. They also include supervision of extensive discovery concerning the ongoing flow of asbestos-related personal injury actions in the courts. MDL activities also include prioritizing cases for resolution.

Although theoretically MDL 875 can remand cases for trial, in reality the court has enforced a practice in which it will not remand a case until “all avenues for settlement have been exhausted.” This can take years, and when the meso claimant dies, significant parts of his compensation claim expire as well. Moreover, the MDL has a policy of severing punitive damages from compensatory damages, which means that even when cases are remanded, the most financially meaningful part of the claim remains in perpetual MDL orbit. Even under the best circumstances, the defendants get a windfall by never having to face punitive damages, which translates as artificially lowered settlement offers.

By 2000, out of 66,000 cases only 1,000 ever qualified for remand. The MDL’s discretion on when pretrial issues had been resolved was so great that meso cases rarely got back to federal court for trial. Also by 2000, Judge Weiner had closed 44,723 cases in MDL 875, orchestrated settlements for unfiled claims, and facilitated settlements in state court jurisdictions at the request of state court judges. He is estimated to have resolved or dismissed over four million claims comprised in those 44,273 cases.

This breakneck pace of efficiency with regard to nonmalignant claims sounds great, but for terminal mesothelioma plaintiffs whose cases are never completely resolved or who are forced to accept pennies on the dollar because defendants know they’ll never face a jury, the injustice has been even greater.

Plaintiff’s lawyers like federal court and their juries and would gladly try cases there. There are many features of federal law that facilitate the just disposition of personal injury claims, such as the 6-hour limitation on depositions. Meso lawyers shudder at federal courts because of the MDL graveyard, not because of the procedural law, jury pool, or bench.

Judicial solution

Since a mesothelioma claimant’s life span averages 6-18 months from the time of diagnosis, there must be a mechanism to get their claims resolved if they are to have any meaningful chance of receiving fair compensation for having been poisoned. Justice delayed until after you’ve died is justice denied. What’s crucial is some change in the MDL process to accommodate in extremis, dying meso victims, who are a small percentage of the total docket.

Since the multidistrict litigation court is itself supervised by a panel of federal judges, it made sense early on to seek their intervention to unclog the backlog. The panel, however, refused to intervene, choosing instead to stamp its approval on this miscarriage of justice.

Following the panel’s ruling, Judge Weiner’s policy of holding meso cases hostage in the black hole was challenged in the 3rd Circuit Court of Appeals. In April 2000 the appeals court upheld Judge Weiner’s approach and agreed with the asbestos companies when it noted approvingly that the court had resolved a prodigious number of claims—44,000 in the first six years alone. But there’s a world of difference between disposing of claims and sending them back to district court where they can be tried. For meso victims, there’s the added factor of time. Even a month’s delay can mean the difference between life and death.

And for all the claims of judicial efficiency, the court still has a backlog of over 100,000 cases, and mesothelioma victims continue to die before their cases are ever heard.

The 3rd Circuit, the supervising judicial panel, and the MDL court itself have all made it clear that they will never release their grip on these cases. Dying meso patients whose claims are languishing in the federal black hole continue to be denied the right to have their case brought before a jury.

Legislative solution

The idea that legislators can put gentle pressure on the court to un-hitch the most pressing mesothelioma cases from the black hole is unlikely to succeed. Constitutionally, the court is insulated from congressional interference and free to interpret the laws as it sees fit. Practically, with an estimated 3,000 meso cases locked up in the black hole, and each case potentially worth several million dollars, a sudden release of these claims would put huge financial pressure on the defendants who have successfully bottled them up for so many years. It is inconceivable that these companies would give in without a fight.

In our democracy, that leaves one option: legislation. The section of the U.S. Code that authorizes and regulates multi-district litigation already has exemptions carved out for antitrust. Adding language that guarantees in extremis plaintiffs, such as mesothelioma, lung cancer and advanced asbestosis victims, the right to have their cases quickly addressed is feasible, fair, and in line with pronouncements of the MDL court itself. Justice delayed for a mesothelioma victim is no justice at all.

We encourage the U.S. Senate to hold hearings on this crucial issue so that victims don’t have to wait for the afterlife in order to get what they deserve. We encourage victims and their families to write, and call their U.S. Senator to urge that hearings be held on the asbestos MDL. Asbestos defendants have all the time in the world. Asbestos victims do not.

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California soccer mom in tough match with meso

April 7, 2008

Gloria Serrins is a 54 year-old mother of three beautiful daughters who lives in Mission Viejo with her husband, Phil, to whom she has been married for 31 years. Outgoing, vivacious, and completely dedicated to her family, Gloria now finds herself in a scenario that on one could have predicted.

In July, 2007 Gloria realized that something was wrong with her health. Vigorous, athletic, and normally full of energy, she could feel that something was out of synch, but didn’t know what it was. At first Gloria thought it might be the flu, but that didn’t explain the constant discomfort she felt whenever she was seated.

The discomfort caused her to fidget, and ultimately to have problems sleeping. Since Gloria always slept on her right side, it was too painful to lie down.

Trouble in paradise

Gloria and Phil were approaching their 31st wedding anniversary and he had set up a cruise to Alaska. Normally engaged and excited to be doing things with “the love of her life,” Gloria simply couldn’t muster any excitement about being away from home. The trip was extremely important to Phil so that they could celebrate their marriage, and also because Phil’s father had died at an early age after a lifetime of hard work. “I made up my mind early on that I’d take those extra minutes, hours, and days to be with my family. I miss my father every single day, and vowed that the only thing we really have in life—time—I would share with Gloria and the girls.”

Phil Serrins adores his wife, and he had sacrificed an 80-hour week career track to lead a lifestyle that would let him be there for them. Whether it was the school play, a family weekend trip, or traveling for soccer games, Phil and Gloria pulled together for thirty-one years, always in the same direction, always with the same goals in mind, always bound together by love.

Gloria vowed not to say anything to Phil about the pain because she knew that if he had any inkling, he would cancel the cruise and have her in front of a doctor immediately. The cruise was terrible, with Gloria’s discomfort descending into misery, compounded by an inability to sleep more than a couple of hours each night. Gloria was still afraid to say anything because Phil had developed a pain in his right eye during the trip and she was petrified that they would both be sick at the same time. Unable to withstand the pain any longer, she told Phil when they returned to California, after having endured almost unbearable pain and sleep deprivation on an ocean-bound cruise.

Web detective

Just as she had known he would, Phil whisked Gloria to St. Joseph’s, where a CT scan, MRI, and x-ray revealed spots on her lung. Dr. Brian Palafox was unable to conclusively diagnose, so Phil took charge. He got on the Internet and began consulting with doctors who he knew through his chiropractic practice.

Dr. Palafox affirmed that the only way to get a conclusive diagnosis was via a tissue biopsy. On Oct. 15 Gloria went in for surgery and, and the surgeon performed the biopsy and a talc pleurodesis. Subsequent immunohistochemical staining confirmed mesothelioma, biphasic type. When the Serrins learned that the oncologist recommended by Dr. Palafox only saw one mesothelioma case per year, they decided to continue looking.

Gloria was diagnosed with bi-phasic pleural mesothelioma on October 16, 2007.

Following her diagnosis, Gloria consulted with Dr. Cameron in Los Angeles, and Dr. Rusch and Dr. Pass in New York. All three surgeons determined that Gloria as not a candidate for surgery because of the cell type and advanced stage of her disease. Gloria began treating with one of the nation’s leading medical oncologists, Dr. Vogelzang at the Nevada Caner Institute in Las Vegas.

Despite an aggressive and arduous regimen of chemotherapy, Gloria consulted with Dr. Cameron again after her doctors determined that the Alimta/cisplatin regimen was not working. Unfortunately, she was still ineligible for surgery. Although a different chemo cocktail showed no progression of the tumor, it failed to show that the tumor had shrunk, either.

Chemotherapy has been discontinued, and five weeks from now she will do another CT scan to look into additional treatment. Gloria is struggling her hardest to keep the cancer at bay.

An American family

Gloria was born in 1953 in Goeppening, Germany, the daughter of a U.S. WWII army veteran and a German national. Her father, Francisco “Frank” Carillo, brought the family to the U.S. that same year, and the family relocated in southern California.

Gloria and Phil’s first daughter, Ricki-Ann, was born in1980. The family moved to Mission Viejo because Phil was studying to be a chiropractor. Gloria and Phil’s second daughter, Stacy, was born in 1981, and their daughter Lindsey was born in 1984. After Lindsey’s birth, Gloria became a full time housewife.

The dynamic and loving Serrins family has been built in large part by the unstinting love and devotion of Gloria. The unique character of each daughter was carefully nurtured so that each grew up to be a mature and responsible adult. Ricki-Ann loved being outside, and never played with dolls but liked sports, bikes, and action. Ricki-Ann played little league baseball as the only girl on her team, and later became an accomplished soccer player. Stacy loved play with Gloria’s jewelry, makeup, and clothing. At age three she entered dance school, and learned tap and ballet. Gloria would drive Ricki-Ann to soccer practice and Stacy to dance class and had to coordinate the transportation so no time was wasted. Stacy danced until she was twelve. The family never missed going to one of Stacy’s recitals.

Like her older sisters, Lindsey was always busy with sports and dance, and Gloria spent all her time taking care of the three girls. Gloria would volunteer at the girls’ elementary school until eventually she was at the school every single day. With three daughters at the same school at the same time, she helped the teachers any way she could. Gloria took care of other children as well, and when she became familiar with the kids and their parents she’d set aside Friday as the day to take her daughters and their friends to lunch at Taco Bell. The kids loved having Gloria in the classroom, and Phil would often come by the school on his lunch break. The daughters loved having their parents around at school.
Ricki-Ann graduated from the University of Maryland on a soccer scholarship.

Ricki-Ann is an assistant soccer coach at Tulane University in New Orleans. Stacy attended Santa Barbara City College where she studied art and dance. Stacy graduated from beauty college and works as an esthetician at the Montage Resort at Laguna Beach. Lindsey was recruited to UCLA for their crew team, and graduated in 2005 as a history major. She now works as an elementary school teacher in New Orleans, near her older sister. All three daughters attribute their success to their nurturing, involved, and tireless mother. Gloria’s devotion and dedication to her family, and her extraordinary toughness, are exemplified best when she says, with no trace of pride, “All three of my girls were natural childbirths. I didn’t want it any other way.”

After thirty-one years of marriage, Gloria and Phil have grown together spiritually and emotionally. They both love to garden and spend their weekends together in the yard. With numerous flowers in the yard, the centerpiece is Gloria’s rose garden. Gloria loves crafts, decorating, wildlife, and dogs. She has a blue-gold macaw that chatters gregariously in their home, and two Australian shepherds, Berkeley and Mac. She and Phil love to take their daily promenade around the neighborhood, and they enjoy walking along the nearby nature trails and wilderness areas.

“Gloria always kept things in check and kept me on track,” Phil says in disbelief, shaking his head at the catastrophic calamity that has befallen his family. “She was the one who was reasoned and even-handed with the kids. She never rushes to judgment or breezes past things. Gloria sees life, where most people just run through it. If she’s on skis, she won’t race down the mountain, but will stop and look at the trees and the animals, and even at the snow. We go to movies all the time. While the kids were growing up it was about Gloria being there to see them and raise them. We went to every school function, not just to be supportive but to be together. And now…” his voice trails off, “…this.”


Asbestos-related illnesses on the rise in Japan

March 31, 2008

JAPAN: The government has grudgingly released the names of 2,167 companies and offices around the nation where workers received compensation in connection with asbestos-related illnesses.

The Ministry of Health, Labor and Welfare has been under pressure from groups supporting those suffering from such respiratory illnesses as well as family members to release the names quickly.

The list would enable those who lived near the companies or who had family members who worked there to get checked for diseases such as mesothelioma, a disease of the lungs which is invariably fatal.

Read the complete story here.


Japan: 45 more cases linked to asbestos exposure

March 31, 2008

TOKYO, JAPAN: A further 45 people have been confirmed with health problems after exposure to asbestos from a former factory site in Ota Ward in Tokyo, the ward office said Saturday (29 Mar).

One man in his 70s died in October of pericardial mesothelioma–a form of cancer caused by exposure to asbestos–and seven other people developed health problems after inhaling asbestos, according to the ward office.

Read complete story here.


Advocates raise asbestos awareness

March 31, 2008

From the Oakland Press:

Each year, 10,000 Americans die — often quite painfully — due to asbestos-related illnesses. Because it takes between 10 and 50 years for symptoms to emerge, these numbers are expected to climb through 2018.

Macomb County is at increased risk because of the number of residents who work or worked in the building trades, said Michael Harbut, M.D., co-director of the National Center for Vermiculite and Asbestos-Related Cancers, at the Karmanos Cancer Institute in Detroit.

“People think asbestos is a thing of the past,” said Harbut, adding that inhaling or swallowing asbestos fibers permanently penetrates the lungs and other tissue, causing cancer and other respiratory diseases. “I wish it were.” Read the complete story here.


Travel tips for meso patients

March 28, 2008

Meso spouse Lois Schwarting has put together this excellent reference for traveling:

Travel tips for meso patients

Remember the point of your trip. If it’s for pleasure, plan to enjoy every minute of being in a different environment and get immersed in whatever is beautiful and new!

Request wheelchair assistance

When booking airline travel, request wheelchair assistance. Upon arrival at baggage check-in outside or inside the terminal, request wheelchair assistance to the gate of departure. The airport personnel will wheel the meso patient through the handicapped line of the TSA lines, but the passenger will have to get up out of the wheelchair and walk through the little “archway.” After being cleared, he will get back in the wheelchair to be pushed to departure gate. Even if the meso warrior is feeling quite good, the lines for security may be extremely long and cause undue fatigue and distress. Have the warrior wear slip-on shoes, as going through security they will still have to remove shoes and walk in sock feet!

Have your oncologist sign a form to take with you through security. I leave it in the same folder as our tickets and boarding passes. This will allow you to take some extra nourishment with you, and any meds that otherwise might be problematic. There’s a sample form that follows.

Nourishment

Airlines allow only certain sized containers and certain products through security. They tell you exactly the size, quantity, and type of items you must put in a one-quart Ziploc bag to go through security.

I always want to take more!! This is where the passenger health form comes in handy, and I point to them where it says he has undergone chemotherapy and to the doctor’s signature. It works wonders! Marty drinks one bottle of Boost per day, and I carry one bottle per day of our total trip with us. I put these bottles in a Ziploc gallon-size bag. I have also carried a “soft-pack” cooler which will hold a six-pack. In it I have some fresh fruit, salad, or sandwich with a small “cold pack” to keep food cold. When showing it to security on the conveyor, I tell them he is a terminal cancer patient and has undergone chemotherapy and his food requires special handling and that is what is in the cooler. Once on the other end of conveyor they have me open it up and look quickly. They have never had me rifle through and show exactly what is in there!

Good idea to take these things with you

CD of last CAT scan and written report of scan. If you need to take your warrior to an ER, these will be very handy. Go to the records department at your radiologist and request several days prior to travel. If you can’t get a CD ask for the actual films.

Pain medications: take some even if the warrior has not yet experienced pain.
Anti-nausea medications: just in case!

It’s best to check with your airline if the warrior is on oxygen, because they may have you follow a particular rule or complete their form and you want to be sure to comply. We are thankful that as yet we have had no requirement for this information. This form has been made up based on sections of one which we were required to complete for taking a cruise to Alaska in August 2007.

Passenger health
Name
Date

Illnesses or operations:

Mesothelioma

Current medications (list all):

Medicine allergies:

Equipment that the passenger will be bringing onboard (oxygen concentrator, wheelchair, walker, liquid oxygen, etc.):

Has the patient been hospitalized in the past year?

Is this patient medically fit to travel?

Comments:
(Medical information for emergency situation.)
(Note: Handwrite anything like below ) — fills up more space — make CHEMOTHERAPY stand out when writing!)
Thoracentesis/date
Thoracoscopy/date
Diagnosis from lab/date

Chemotherapy [Here you could write in “3-week interval cycles Alimta/cisplatin, dexamethasone, B12 shots] I handwrite date, doc’s name, address, and have the doctor sign.

Doctor’s information:

Signature_________ Date ______

Doctor’s Name _________________

Address _____________________

Telephone _____Fax ___


Weight loss after chemo/surgery for mesothelioma

March 27, 2008

One thing that mesothelioma patients have to contend with after undergoing chemotherapy and/or surgery is weight loss. A loss of 30-40 pounds isn’t uncommon, and although there are plenty of people who have weight to spare, the issue is much more difficult for patients who start off lean. Since the surgery, chemotherapy, and the cancer itself can all work to greatly depress appetite, lean patients who shed 30 pounds may find themselves losing most, if not all, of the natural padding on their backside.

Lois Schwarting, meso spouse and caretaker extraordinaire, invented a solution for her husband Marty that makes it much easier for him to sit down: what she calls a “butt pillow.” By stacking several layers of eggshell foam and enclosing it with a pillowcase, Marty has a lightweight, portable, and eminently comfortable cushion that he can use whenever he sits. Lois has sent the photo below to show the type of foam, as well as instructions about how to make the pillow:

“Here’s pics of how I built a butt pillow for Marty. Then I made a pillowcase right size to slip over and stitched end closed. Use some E6000 glue to hold the pillows in place, and then draw yarn through the 3 layers (loop of yarn in the valley part of foam so not irritate skin. Just tie in a bow on the bottom layer to help hold in place! Marty’s “butt pillow” is usually in a recliner which he usually sits in, but it or the “spare one” is taken with them when leaving house and ….. (he uses it in the other places)

“Some people have weight loss and body wasting caused by cancer even before diagnosis and it continues during surgery or chemo, so this can really make life more comfortable.

“Here are dimensions of the foam pieces:
Purchase 1-1/2 thick egg-crate foam.
Cut four pieces 6 inches by 9 inches.
Cut one piece 9 inches by  18 inches.

“E6000 glue works great, as it will not “melt” or “eat” the foam. Apply a few drops of glue to the “bumps” of the eggcrate side of the foam in a couple of places. Stack the foam pieces together as pictured. For added stability, run some yarn from the bottom piece of foam up through the small pieces, making sure loop yarn is in the middle, and pull back through to underside and tie in a knot or bow.

“Caution: Even a small bow made a ‘red bump – sore spot’ on Marty’s skin when I’d tied yarn in a bow in the depression of the top foam! I made a pillowcase-type cover, slipped it over foam and stitched the end closed. I made two “butt pillows” so that when one gets squashed from a lot of use, I replace it with the second and let the squashed one plump back up. My first ‘prototype’ was for a trip to Alaska. I had folded over some fabric alongside the length of the 17-inch foam and drew cord through it. I slung it  on my shoulder and had it ready to put on a bus seat, train seat, or wheelchair seat. I had made that one with only two layers foam, but he likes the 3-layer foam pillow better! For back comfort, we have a piece of foam 15 inches by 21 inches and 1 inch thick, which is slipped inside a pillowcase and used behind Marty’s back when he travels.”
“Butt” pillow

Pillow foam

Finished pillow 1

Finished pillows, upper and lower

Finished pillow 2

Sweet doggie not included!!!