Sophie Zavaglia: Frivolous lawsuits are destroying America. If you’ve ever watched TV, or frankly existed in this country for any length of time, you’ve probably heard some variation on that message, about how runaway juries handing out million-dollar jury awards are destroying the judicial system, and how anybody who files a lawsuit is trying to scam other people and other businesses out of their money. This is the product of a concerted effort by a small group of corporate actors to convince people that they should not pursue their rights in court. It’s what’s called tort reform.
On today’s episode, we’re going to talk about tort reform: what it is, who’s behind it, why it’s being pursued, and how it affects not only what my firm, SWMW Law, does, but also other types of lawsuits in the mass tort world. We’re going to talk about what a mass tort is, how asbestos fits into that landscape, and we’re going to try to address this lie that if you’ve been injured, you should not file a lawsuit, and why that’s just not true.
Welcome to The Asbestos Files, where we expose corporate greed, cut through the confusion, and fight for people who deserve answers. My name is Sophie Zavaglia, and I’m an attorney at SWMW Law. At my firm, we believe that when corporations put profits over safety, people deserve an advocate in their corner who’s willing to fight.
Essentially, what tort reform is, is an effort that’s been made by a lot of businesses across this country to enact laws that limit a person’s ability to fight for their rights in court. Specifically, that means there’s been an ongoing effort for many decades to pass laws that do things like put caps on damages you can get in court. The reality of what I do as a lawyer is that the only way I can really try to compensate someone is through money. I can’t turn back time, and I can’t make someone’s cancer diagnosis go away. All I can do is make it so companies who have hurt individuals have to pay for that injury.
One of the ways tort reform advocates try to limit someone’s rights in court is by getting laws passed that put caps on how much money a jury can award. The laws are different in every state, which is something you’ll hear me say a lot on this podcast, and you need to talk to a lawyer who’s knowledgeable about the law and the caps, if any, in your particular state and circumstances. But the fact is, tort reform activists don’t like juries having the ability to award what they think is fair. That effort tries to limit a jury’s ability to award the amount of money they think will make an individual right, and more importantly, will hold a company accountable for what it’s done and disincentivize it from doing that same harm again.
Another way tort reform activists try to limit a person’s ability to fight for their rights in court is by passing laws that set up hurdles to overcome, burdens of proof higher than in any other type of civil case, and requirements around expert reports. It’s state by state. A lot of tort reform activists will say they’re just trying to help the system, trying to make things more fair for everyone, trying to make sure the judicial system doesn’t bankrupt good companies who haven’t done anything wrong. And while that sounds good in theory, the real purpose of all these rules and restrictions is to make it so companies don’t have to pay when they’ve hurt people, when they’ve poisoned people, and frankly, when they’ve killed people.
This effort is funded by a well-funded group of businesses, think tanks dedicated to it, groups whose sole mission is to go throughout every state trying to get new rules that make it harder for individuals to exercise their constitutional right to a trial by jury. They’ve also pursued a kind of soft-power approach, trying to get people to believe it’s morally bad to file a lawsuit. I can’t tell you how many people have walked through my doors with cancer, with the proof, and told me, “I’m not the type of person to file a lawsuit.” The message they’ve come to believe is that there’s a type of person who files a lawsuit, and that type of person is someone trying to scam the system.
In this country, we’re made up of people who are hard workers, not looking for a free pass, and if people end up believing this lie, that filing a lawsuit makes them a bad person or means they’re trying to scam something out of a company, that just isn’t the case. One thing I like to tell people: individuals have a lot of concern about being seen as trying to get money for nothing. Well, you know who doesn’t have that worry? Businesses and corporations trying to protect their business. They have no qualms about calling a lawyer. So if they’re not worried about calling a lawyer and suing over times when they’ve been injured, you also should not be worried about calling a lawyer and fighting for your rights. That’s simply the reality of our judicial system.
It’s particularly dangerous in things like asbestos litigation, when we have people who come into our office with mesothelioma and lung cancer, because, and this is a cliche but it’s true, this is a David and Goliath type of battle. At SWMW, we represent individuals. We’re not representing people who have unlimited resources. We represent hardworking people, usually blue-collar people, who all they’ve tried to do over the course of their life is just make enough to support their family and to get by. Who we sue in these lawsuits are corporations and companies with deep pockets, who know that this was going to be a problem and who have made millions and millions of dollars trying to get around safety regulations, making products they knew were dangerous but were cheap.
So we’re going up against a well-funded group of companies that also have this tort reform mission of making it harder and harder for people to fight for their rights. That certainly doesn’t scare us at my law firm. We’re used to that, and we’re ready and equipped to fight that battle. But it’s something we have to be honest about, and address the concern a lot of people have that if they even so much as call a lawyer, that’s some proof they’re a bad person individually. That just simply is not true.
More broadly, the tort reform effort in this country doesn’t just try to limit people’s ability to seek compensation in court; it directly affects what we do at my law firm, and more broadly, the landscape of mass tort litigation. If this is your first time listening, you may not know what a mass tort is. Basically, a mass tort is just another word for any type of range of lawsuits where there’s one product or substance that has caused harm to a lot of different people. If you watch the news with any regularity, you’ve probably seen mass tort reporting about certain pesticides, about talc, about certain medications where one drug may cause heart failure for the vast majority of people who take it. That’s all a mass tort is: a group of many lawsuits all arising out of one product or substance that has caused harm to a lot of different people.
Why that matters for my law firm is that asbestos is, for lack of a better phrase, the OG mass tort. Asbestos is one of the first substances that really caused a wave of lawsuits starting in the 1970s and going all the way through today, all centered around this one substance, a mineral. This has been one of the longest-running sets of lawsuits in American legal history.
One thing people do get confused about, and understandably so, since none of this is easy to understand if you’re not a practicing lawyer who does this all the time, is that mass torts are not class actions. You may have heard about class actions, which are similar but different. Class actions involve one lawsuit that represents a lot of different people, maybe thousands, in one lawsuit against a company. Mass torts are a little different. As with asbestos and any other type of mass tort, what we do at my firm is we don’t file class action lawsuits about asbestos exposure. We file individual lawsuits on behalf of individual people against a number of different companies who all made asbestos-containing products or had asbestos on their property.
A lot of people can understandably become confused and ask us when they come in, “Is this part of a class action?” No, we litigate on behalf of one person at a time against a number of different companies. What you can expect as a client at our law firm is really no different than if you had an individual lawsuit about a car wreck or a slip and fall. We do not handle our clients on a group approach. Every single one of our clients has an individual case that will receive individual attention; it just happens to exist in this larger landscape of a lot of lawsuits going on at once about, in our case, asbestos exposure.
There’s also the concept of multidistrict litigation, a specific process that exists for other types of mass torts. Without getting too deep into the weeds, if we’re talking about things like pesticides, medications, or certain medical devices, and a lot of lawsuits get filed over those types of products, they may get drawn into what’s called an MDL, or multidistrict litigation, where one judge presides over lawsuits filed all over the country. There are different ways the MDL exists and is administered, but the whole goal is to try to resolve claims for people as efficiently as possible, addressing all those claims at once if there’s merit to that type of lawsuit against a medical device, a pesticide, or another product. That’s a little different from what we do at my law firm, but it’s certainly part of the landscape of this type of litigation.
Even lawyers who don’t do this type of work may not know anything about how this process works, and it’s not because they’re not smart, it’s just because the system can be very confusing unless you’re in it day in and day out.
Now, shifting gears, we’re going to talk about some more myths versus facts, addressing what people believe that just frankly isn’t true. One of those myths is that mass tort lawyers just file cookie-cutter claims. I’ll tell you that a lot of these claims have very similar allegations, and I think that’s where this myth comes from: well, all these lawyers, they all do the same thing, they’re all filing the same lawsuit, all the language is the same, so what does it matter? Part of that is true. Take asbestos, for example: the story of the cover-up, what companies did to try to get out of the dangers of asbestos coming out, what they did in response to finding out asbestos could cause disease, that playbook is very similar across cases. That’s not going to change based on individual experiences. So in a sense, every lawsuit is very similar in asbestos land; there are going to be a lot of the same allegations, that companies knew or should have known asbestos was dangerous, that they used it in their products, and that they didn’t take it out when they knew it could cause cancer. That doesn’t change.
But the fact part of addressing this myth is that even if we’re addressing the same playbook every single time, each client is different. Each individual’s exposure is unique. Everyone’s experience is different. That’s where our expertise and our zeal comes in, to decipher what needs to be brought out, what needs to be highlighted, addressing where each client is different and how their exposures were different. So even if the lawsuit itself may look very similar from case to case to case, that has no reflection on how we as a firm at SWMW actually handle that case, because every case is different, and we have to address the differences in every single case, every single time.
Another myth: these cases drag on forever, and clients never see a dime. Again, similar to the first myth, there’s a little bit of truth to this. I’ve got to be real with you: lawsuits take a lot of time, and from the starting point to the finish point, we might be talking about a case lasting a couple of years. That’s because that’s how the system works; litigation is slow, there’s no way around it. There are certain rules and regulations that slow things down, which we have to follow and other parties have to follow as well, which ends up helping us the same way it helps other companies. That being said, the way asbestos is a little different, and I think it’s important to note, is that the vast majority of our cases involve many different companies. We will name whoever we think is responsible for an individual’s cancer or their disease, and we don’t wait until the very end to try to settle with those individual companies.
So the way it typically looks over the course of a lawsuit for our clients is that we’ll file a lawsuit, and the entire process from start to finish may take several years, but over the course of those years we’re actively trying to get compensation for our clients anywhere we can. If we can settle a case with one company in the middle of a lawsuit, we will do that, and we’ll continue fighting with the other companies that haven’t settled yet. There’s also a process we can tap into called the bankruptcy trust system: trusts that have been set up outside of litigation, outside the courthouse, where we can apply for compensation to individual trusts, and we do that over the course of the life of a lawsuit.
So even though, being very real, lawsuits do take a long time and can drag on, and it can be frustrating, that reality is normal, typical for these types of lawsuits especially. To address the second part, that clients see nothing, that’s just not how we handle our cases. We don’t get paid unless you get paid, so if we’re not getting settlements for you, we’re not making any money. There’s absolutely an incentive for us to get you paid, because that keeps our lights on and we want that too, to continue fighting for all of our clients. As soon as we’re able to resolve a claim successfully on your behalf, that money gets funded, it goes to you. Obviously, we can’t promise you anything, and I’d be doing a disservice to you if I promised I could get you money, and I’d also be breaking the law, which I don’t want to do. But if the evidence is there, and if we can link up that evidence and prove your case in court, there’s a very good likelihood we’ll get you some form of compensation, and we disperse those funds as quickly as we get them.
Finally, the myth that you have to be dying to qualify. The unfortunate reality of what we do is that usually there has to be some sort of illness, a cancer diagnosis or some other disease diagnosed by a medical doctor. Part of what’s difficult about this job is that most of the clients I work for, and the rest of our team works for, unfortunately are dying. That’s part of what makes this job not only very difficult, but also what makes it meaningful, because we’re working for very sick individuals, people who have cancer, who have mesothelioma, who are getting chemo, who are getting radiation, who are quite frankly toward the end of their life. It’s not always the case, but we deal with that a lot.
That being said, we also have had a number of clients who don’t die, who beat their cancer, and we celebrate with them just along with their family. When our clients beat cancer, that is a good day in our office. That’s obviously what we hope for, what we try to make sure happens by getting them compensation, trying to get those people the medical care that they need. But the reality is that whether you beat your cancer, whether you don’t beat your cancer, whether you have a loved one who passes away from their disease, that ultimately doesn’t have a bearing on whether or not you’re qualified to bring a case in court. What matters is that there’s an injury, and what matters is that we can get the evidence to link up that injury to exposure to asbestos.
So again, as with everything, if any of this is a question in your mind, if you’re not really sure, well, am I sick enough, is my disease a qualified disease, all these are questions you should be reaching out to an attorney who handles this specific type of litigation so they can answer those questions for you and help you along in your specific circumstances.
That’s it for today’s episode. I appreciate you listening to The Asbestos Files. If you or someone you know has been diagnosed with an asbestos-related disease and you need somebody to talk to, please reach out to a lawyer. I’ve got the link in the show notes for how you can get in touch with my firm, SWMW Law. On the next episode, we’re going to be talking about specific types of exposure to asbestos, specifically being in the armed forces, being a veteran, and how that may expose you to asbestos. I’m Sophie Zavaglia, here at SWMW, where we believe that people matter, and I appreciate you listening. Thank you.
