By Sara Corcoran, Publisher, California Courts Monitor & National Courts Monitor
Given our partisan political environment, you might not expect to find the conservative Texas Attorney General Ken Paxton aligned with a reporter for the left-leaning Dallas Observer. However, the usually murky world of asbestos litigation has accomplished exactly that feat, with the Lone Star State's top lawmaker filing a "friend of the court" argument in support of a Dallas-based reporter's attempt to unseal a 20-year-old court deposition.
It seems the battle over justice makes for strange bedfellows, indeed.
In addition, General Paxton joining the fray ups the ante for a Canadian documentary filmmaker who is heading toward a spring premier for what is, in all likelihood, the only film we’re going to see about asbestos lawsuits, alleged fraud and general hijinks.
Actually, it was Paul Johnson’s film “UnSettled: Inside the Strange World of Asbestos Lawsuits” that set the unlikely union of Paxton/Observer/Courts into motion. The film led former Observer investigative report Christine Biederman, herself a Texas attorney who helped uncover an infamous “witness coaching memo,” to renew her decades-old efforts to unearth court documents. At issue is a deposition tied to the prominent Dallas firm Baron & Budd that might shed light on the coaching document. Biederman's work was even cited in a recent research paper by the Texans for Lawsuit Reform Foundation, a pro-business tort reform group.
That research brief outlined Texas' national role in developing asbestos litigation along the resulting controversies.
Last year, Biederman asked an Austin court to unseal a 20-year-old deposition that might be connected to the coaching memo’s use. The Austin court ruled it did not have jurisdiction. Biederman appealed that decision and oral arguments are pending.
Her appeal drew enough attention from General Paxton that his office issued a “friend of the court” brief arguing the open-records case. Austin NBC News reported earlier this month that Paxton contends the ruling “is not consistent with the presumption of openness of court records maintained by Texas law.” NBC also reported that Biederman became interested in the deposition after learning that the old testimony might shed light on recent controversies. These include, but might not be limited to, potential issues around a landmark North Carolina bankruptcy case called "Garlock." In that case a federal judge found evidence suppression in 15 of 15 cases investigated. The revelations resulted in civil racketeering cases brought against victims' firms that had been suing Garlock, a gasket manufacturer. That civil racketeering case has since been resolved, but somewhat similar cases have reportedly been filed.
Into that fray comes some mystery, as the longstanding Wikipedia page for the “coaching memo” has disappeared from the Internet and a very caustic satire of those familiar mesothelioma ads began popping up (see it here).
Now, having stirred up Texas and held screenings in California, Pennsylvania, New York and D.C., “UnSettled” is heading for at least one more screening before a planned Spring premier. (I should note that the National Courts Monitor, where I am publisher, helped host the D.C. screening at the National Press Club.)
For the admittedly small world of asbestos litigation, the announcement that Johnson’s film will be screened at the Regent University in Virginia Beach, Va., perhaps brings the question of a panel discussion similar to the one that accompanied the University of North Texas, Dallas School of Law showing last Fall. That panel featured prominent victims’ attorney Charles Siegel, head of the appellate practice at Waters Kraus & Paul and Dallas-based attorney Jeffrey B. Simon, a founding shareholder of the national Simon Greenstone Panatier Bartlett firm that had been involved in Garlock.
Simon began by blasting the spelling of a type of asbestos on the very first frame of UnSettled and generally sought to dismantle the movie, with the odd exception of nearly endorsing increased transparency for bankruptcy trust funds that play a huge role in the movie. Trial lawyers generally oppose such moves. (See the panel discussion here.)
The director took the public chastising in stride.
“Look, I’ve been a journalist for decades,” he explained from his studio near the U.S.-Canadian border south of Vancouver. “I’ve had subjects of my work who are upset about my reporting, and that’s to be expected. I’m still not sure he was right about how I spelled that type of asbestos on the first frame of my movie, but really I’m glad that the basic premise of the movie, which has to do with the system we have and if that’s the best system we could have, remained intact.”
“I actually thought Jeffrey Simon was great,” he added. “I didn’t like his take on my movie, but he came to the reception later and we had a discussion and I think found some common ground.”
Johnson added that he was reassured that some of the more assertive parts of the movie, involving specific cases where people apparently told one story about their exposure at trial and another when it came to getting payments from specific company’s bankruptcy trust funds, was "basically unchallenged.”
Making some news, Johnson also announced that the slated work-in-progress screening at Regent University in Virginia on March 6 will be among the last as he heads toward a release on Amazon Prime. It will be closing a loop of sorts since an interview with regionally prominent victim’s attorney Bobby Hatten, who more or less carries the pro-victim argument, was the first for UnSettled.
A post-screening panel discussion is planned and Johnson says he has encouraged the school to invite Mr. Hatten to participate.
Let's see if yet another trial lawyer steps up to make his case away from the courtroom.
Sara Corcoran is a Washington, D.C.-based commentator and publisher of the California Courts Monitor and National Courts Monitor. She has also published as Sara Corcoran Warner at The Huffington Post, the Los Angeles CityWatch, the California-based Random Lengths News, among other outlets.