Each year, nearly a thousand U.S. veterans are diagnosed with mesothelioma as a result of their exposure to asbestos products during their military service. In fact, for veterans of the Vietnam War, mesothelioma rates are on the rise. Veterans, like U.S. Navy veterans, for example, had no idea that their exposure to asbestos products was dangerous or that it could cause malignant mesothelioma cancer. But the asbestos product manufacturers knew. Yet rather than take responsibility for the harm their products caused, many asbestos product manufacturers like Georgia-Pacific (“GP”) still look for ways to escape liability for negligent conduct.
This month, a New York state appeals court has ruled that GP, the manufacturer of asbestos building materials, must permit a special master to review internal documents concerning eight studies that GP paid to have written. The studies help support GP’s position that its particular asbestos products allegedly did not cause mesothelioma. In addition the court ruled that GP must produce all the underlying data and calculations concerning the studies.
Unless you’re a lawyer, you may be thinking, “Blah, blah, blah.” But this really is a big deal. Here’s why.
Georgia Pacific Pays Experts to Write Studies to Help Company Escape Asbestos Liability
GP paid some “scientists” to write some “objective” studies about whether asbestos building products that GP made in the past could be a cause of mesothelioma. Obviously, the answer GP wanted to hear was “no.”
After GP paid for the studies and got the answer it wanted, GP planned to use those studies in lawsuits filed against GP by Navy veterans and other people suffering from mesothelioma. GP’s defense was, “Nuh-huh, our products didn’t cause mesothelioma and we have these studies to prove it.”
What GP kept on the down-low was this: GP’s own in-house lawyer was involved with the experts as they were preparing the studies and the experts were either working as employees for GP or they had been hired and paid by GP to defend the company against mesothelioma lawsuits. What’s more, GP denied that its in-house lawyers were involved in the studies.
The problem with this sort of thing is that judges and juries deserve to know whether the evidence they hear at trial is on the up-and-up or whether it’s some sort of witch’s brew concocted to get somebody off the hook for their own bad behavior. Sometimes, studies are so bogus that the judge will just throw them out. Other times, the judge lets the jury decide whether to believe a certain study, so long as the jury understands that there may be some bias involved – like when a big company paid an expert to write something, or even had a hand in drafting it, for example.
With regard to the studies written for GP, the plaintiffs’ lawyers who represent the people with mesothelioma wanted to see just how much influence and participation GP actually had in the studies. The mesothelioma victims’ lawyers wanted to see the underlying data and calculations so they could have their own experts run the exact same studies to see if they get the same results. The appellate court in New York ruled that the plaintiffs’ lawyers were entitled to that data.
But the plaintiffs’ lawyers wanted more. They also wanted to see all the correspondence among the lawyers at GP and the experts GP paid to write the reports, reports News and Insight. The plaintiffs’ lawyers wanted to see just how involved the GP lawyers were in controlling what their experts said in the studies.
Normally, a big company doesn’t have to hand over its communications with the experts it hires to help defend the business against a lawsuit. Those communications are generally covered by the attorney-client privilege. But there are exceptions to the attorney-client privilege, such as when the company has been involved in fraud or misconduct in connection with the communications in question.
In this case, the plaintiffs’ lawyers who represent the mesothelioma victims argue that GP was attempting to mislead the public into thinking those eight studies were unbiased when in reality, the studies were basically written not just at the request of GP, but at the express direction of GP’s own lawyers. What made it worse is that GP denied that its lawyers were involved, even though they were.
Under those circumstances, the New York appellate court ruled, the attorney-client privilege might not apply. To be certain one way or the other, the court ordered that a “special master” – a person appointed by the court to make decisions about a specific part of a lawsuit – should look at all the correspondence the plaintiffs’ lawyers have asked for and decide whether there was any fraud or misconduct involved. If there was fraud or misconduct, the plaintiffs’ lawyers who represent the mesothelioma victims should ultimately get to review the correspondence and let future juries know about any bias associated with GP’s studies.
GP’s studies are just an attempt by one company to “seed” the scientific literature and subjugate the interest of human understanding to the interest of big profits. Other asbestos companies do the same thing and so do manufacturers of other dangerous products, as well. Bravo to the First Judicial Department of the Appellate Division of New York’s Supreme Court for doing something about it.