Course Level: Intermediate

Advance Preparation:

Print and review course materials

Method of Presentation:

On-Demand Webcast

Prerequisite:

General knowledge of asbestos litigation

Course Code:

1410935

NY Category of CLE Credit: 

Areas of Professional Practice

Total Credits:

2.0 CLE

Melissa M. Malloy , Partner
Asbestos Defense Attorney
Pierce Davis & Perritano LLP

Meghan L. Riordan, Partner
Asbestos Defense Specialist
Pierce Davis & Perritano LLP

Gerard T. Cicero, Partner
Bankruptcy & Corporate Restructuring Specialist
Brown Rudnick LLP

Longxuan Wang, Consultant
Economist
NERA Economic Consulting

Segment 1

Melissa M. Malloy , Partner

Pierce Davis & Perritano LLP

In an asbestos case, several important early stage litigation considerations can greatly impact the outcome for the client; and those considerations vary depending upon whether the client is the plaintiff or the defendant.

• Plaintiff:
  • Identifying the injury-producing product
  • Determining who can be held legally responsible for the injury
    • Employer
    • Premises Owner
    • Contractors/Subcontractors
    • Chain of Distribution
    • Successor Liability
  • Determining where action can/should be filed
    • State v. Federal
    • Personal Jurisdiction
• Defendant:
  • Timeliness of action
    • Statute of Limitations
    • Statute of Repose
  • Determining if action is barred as a matter of law
    • Workers’ Compensation Act (employer)
    • Outside chain of distribution (product defendants)
    • Not a foreseeable plaintiff (“take-home” exposure)
  • Determining if other parties can/should be added to action
  • Determining whether action can/should be moved to another jurisdiction
    • Personal Jurisdiction (different state)
    • Removal (federal court)
    • Forum Non Conveniens (different venue in state)

Segment 2

Meghan L. Riordan, Partner

Pierce Davis & Perritano LLP

Understanding disease:

• Investigating alternative sources of exposure to asbestos during fact discovery/depositions of Plaintiffs in Mesothelioma cases;
• Alternative causes in Lung Cancer cases;
• Developments in germline genetic mutation defense.

Plaintiff Firm Strategies:

• Chrysotile-only case where Plaintiff seeks to exclude evidence at trial by Defendants of an “unknown source” of amphibole exposure;
• Affidavits executed by Plaintiffs/co-workers and produced prior to depo (and best way for Defendants to address it during deposition/trial).

Jurisdiction:

• Ways to lay the foundation for a Motion to Dismiss for Forum Non-Conveniens (or, in the alternative applying Foreign law) during Plaintiff’s deposition.

Segment 3

Gerard T. Cicero, Partner

Brown Rudnick LLP

• What You Need To Know Immediately Upon a Bankruptcy Filing
  • Stays of Litigation against the Debtor and Non-Debtors
    • What is the Automatic Stay, What Does it Enjoin
    • Non-debtors, Temporary Restraining Orders, and Responding to an Adversary Complaint
    • Stipulated Solutions
  • First Steps to Participate in the Case
    • Interacting with the U.S. Trustee’s Office and Committee Formation
    • Representing Your Clients and Rule 2019
  • First-Day & Second Day Relief “Traps” & Immediate Discovery Options and Tactics
    • Venue
    • Debtor-in-Possession Financing
    • Sales and/or Chapter 11 Plan moving forward on Day 1
• Types of Bankruptcy Design and Pitfalls
  • What is the Ultimate Goal of a Corporate Group?
    • “Cap” and “Capture” Liability & Minimize Funding Obligations
  • The Texas Two-Step & Recent Developments:
    • What Is It?
    • The Fourth Circuit’s Dismissal Standard
    • The Third Circuit’s Dismissal Standard
    • Recent Legislative Efforts
  • Variations on the Texas Two-Step, Control of Estate Claims & Back-Door Releases without 524(g) Vote
    • The Aearo (3M) Example
    • Control of Estate Causes of Action (Including Alter-Ego, Successor, Veil-Piercing Claims) Through Declaratory Judgement and Later Rule 9019 Settlement.
    •  Control of Estate Causes of Action (Including Alter-Ego, Successor, Veil-Piercing Claims) Through DIP Financing and Section 363 Sale.
  • Other Bankruptcy Design to Be Aware Of:
    • Bar Dates (when they are and are not useful)
    • Claims Estimation (when it may be or may not be useful)
    • Vote Aggregation – the LTL 2.0 Example
    • Exclusivity and Creditor Proposed Plans

Segment 4

Longxuan Wang, Consultant

NERA Economic Consulting

• Overview of the statistical model for estimating potential asbestos exposure

1. • Estimating mesothelioma background rate
   • Estimating population with occupational exposure to asbestos

• Review of recent trends in asbestos litigation based on filings of public companies

1. • Number of claims
   • Claim resolution amounts
   • Dismissal rates

• Data from asbestos trusts

1. • Disease distribution
   • Valuation of claims

• Product Liability Lawyers
• Environmental Lawyers
• Toxic Tort Attorneys
• Mass Tort Litigation Attorneys
• Insurance Lawyers
• Risk Assessment Managers
• General Counsel from Manufacturing Companies