Mesothelioma victims deserve better than wasteful legal maneuvers

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."

Last October, John and Sue Johnson sued 65 companies they thought likely to have made asbestos-bearing equipment he worked with in plumbing or automotive repairs. Among them were dozens of companies you've never heard of, along with such familiar names as General Electric and Ford; the list was later cut to 44. In November, UCLA's Cameron, who assumed Johnson's treatment from the Long Beach VA, judged it doubtful that Johnson would survive past the end of January. Under state court rules, that prognosis entitled Johnson to an expedited date for trial, but it was set for March 26. (After Johnson's death, the date was moved back to Aug. 21.)

Then the rhythm of litigation, as immutable as the turning of the seasons, took over. California rules allow asbestos defendants 20 hours to question plaintiffs by deposition. In itself this is an unusually liberal time frame: In the federal courts the rule is seven hours and in Texas, the birthplace of asbestos litigation, six hours per side.

Depositions started on Dec. 12, with Johnson's own lawyers questioning him in an effort to get his testimony on the record in case he died before trial. The defense's turn began on Dec. 19. In early January defense lawyers told the court that there were so many of them they couldn't manage with only 20 hours. A judge awarded them five more.

Johnson visibly weakened throughout this ordeal. Videotapes of the first session show a man with steel-gray hair still exuding vigor despite his terminal illness, wearing an expression of grim determination to answer questions posed by as many as 27 defense lawyers crammed into a San Pedro hotel meeting room or teleconferencing in. From her perch in the back of the room during the December sessions, Sue Johnson said she saw lawyers playing games on their laptops, shopping online, reading and answering emails before rising to repeat the same questions their colleagues had already asked.

By the final session on Jan. 23, Johnson could barely sit straight in his recliner at home. He gasped his way through the interrogation, knowing that unless he completed the deposition to the last minute all the testimony, including his own, could be tossed out of court if he died before reaching the witness stand. Struggling to keep his eyes open, his chest heaving spasmodically for air, he just made it. "He was in survival mode; it was primal," says Worthington, who says eight of his asbestos clients have died before trial in the last four years. No one could witness Johnson's pain and think this is how a civilized society should treat its mortally ill.

The irony of asbestos law is that there's no real dispute that mesothelioma is a death sentence, that the asbestos industry is responsible and that the victims deserve compensation. The whole purpose of the procedure to which Johnson and other sufferers are subjected is to give every defendant the chance to stick someone else with what could be, depending on the jury, an open-ended bill. It's a macabre zero-sum game that squanders millions of dollars through legal billings and blights the victims' final days.

The obvious alternative is to deal with asbestos claims administratively. Asbestos exposure is largely a thing of the past, which means the number of new plaintiffs per year is entering a long decline, from about 3,000 now to an expected 1,000 or so by 2030.

That suggests that calculating the size of a suitable overall settlement for present and future claims should be relatively straightforward — in 2005, Rand Corp. pegged the average jury award in mesothelioma cases at about $3.8 million. But previous attempts to craft such a settlement foundered in squabbling over whether the compensation was adequate or the deal was constitutional. In 1997, the Supreme Court agreed that a nationwide settlement would "provide the most secure, fair, and efficient means of compensating victims of asbestos exposure." But it invalidated a privately negotiated settlement on grounds that drafting a deal was Congress' job. An effort by former Sen. Arlen Specter to create a $140-billion victims' trust fund collapsed in 2006. After that, says Deborah Hensler, an asbestos tort expert at Stanford Law School, the system "resumed its expensive and in my view tragic course."

Why should that be? Ample precedent exists for the federal government to get its hands around this public scandal: Industrial victims such as coal miners suffering from black lung disease and soldiers exposed to Agent Orange in Vietnam have been compensated by government programs, sometimes funded by industry. Government often moves to protect industries from certain costs or liabilities, a benefaction provided to offshore oil drillers, nuclear plant builders, and airlines post-9/11.

All these programs were created to keep compensation free of costly legal maneuvering. And here we are again. Asbestos laid its icy claim on John Johnson's life. But the legal system was its accomplice in evil. Is there no better solution?

Michael Hiltzik's column appears Sundays and Wednesdays. Reach him at mhiltzik@latimes.com, read past columns at latimes.com/hiltzik, check out facebook.com/hiltzik and follow @latimeshiltzik on Twitter.

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