Last Rights: The Fight to Save the 7th Amendment

By Professor Jeffrey B. Simon

Last Rights: The Fight to Save the 7th Amendment shines a bright spotlight on a grave but often overlooked effort by large corporate interests to undermine America's civil justice system and consumer rights. Trailblazing plaintiff’s lawyer, Jeffrey B. Simon, wrote this book as a rallying cry for anyone who has ever been wronged by a rigged system of laws. Through riveting tales of real courtroom drama, Simon exposes the insidious influence of corporate greed and political power weaponized to repeal personal rights and weaken public safety. Last Rights is a wake-up call to consumers and lawmakers to take collective, corrective action before restoration of our civil justice system becomes unachievable. This is essential reading for anyone who cares about the future of our country, and a call to action for those who believe in justice and fairness.

Reviews

“At a pivotal moment in American history when we face an assault on our constitutional democracy, my friend Jeffrey B. Simon’s book is an essential read. Beautifully written with erudition and personal stories, Simon underlines the importance of our right to trial by jury in ensuring justice and equality.” - Matthew Dowd, Senior Political Analyst for MSNBC News

“Jeffrey Simon has written a highly compelling but damning account of the damage that has been done to our rights to a jury in civil trials as guaranteed by the Constitution. The 7th Amendment has been gutted by corporate interests in this country and Simon's book is a timely call to restore it. " - Senator Russ Feingold, President of the American Constitution Society

"Last Rights is a must read for anyone who cares about public health, protection of personal freedoms, and how they fit together. Simon's book masterfully connects those dots." - Linda Reinstein, President/CEO, Asbestos Disease Awareness Organization (ADAO)

• Language: English
• Publisher: Dorrance Publishing Company
• Release date: Dec 1, 2023
• ISBN: 9798889259268

Book preview

Simon_Page_i.eps

The contents of this work, including, but not limited to, the accuracy of events, people, and places depicted; opinions expressed; permission to use previously published materials included; and any advice given or actions advocated are solely the responsibility of the author, who assumes all liability for said work and indemnifies the publisher against any claims stemming from publication of the work.

All Rights Reserved

Copyright © 2023 by Professor Jeffrey B. Simon

No part of this book may be reproduced or transmitted, downloaded, distributed, reverse engineered, or stored in or introduced into any information storage and retrieval system, in any form or by any means, including photocopying and recording, whether electronic or mechanical, now known or hereinafter invented without permission in writing from the publisher.

Dorrance Publishing Co

585 Alpha Drive

Suite 103

Pittsburgh, PA 15238

Visit our website at www.dorrancebookstore.com

ISBN: 979-8-88925-426-3

eISBN: 979-8-88925-926-8

The views and opinions expressed in this book are neither legal nor medical advice. They do not expressly or necessarily reflect the opinion of any institution with which I am, or ever have been, a member and should never be attributed as such.

I wrote this book as a labor of love, a tribute to family, clients, colleagues, jurors, and judges, to whom I am ever grateful. This piece calls upon every reader to help restore and vigorously defend each American’s right to trial by jury.

INTRODUCTION

I am a plaintiff’s lawyer. I have been doing this work for thirty years. Through our civil justice system, I represent people who have been crippled, poisoned, or cheated by others, usually by large corporations. In these endeavors, I’ve learned three things that I want you to know:

Plaintiff’s lawyers perform work that improves public safety and affirms individual rights.

Powerful industries are pursuing opposite objectives with enormous and increasing success.

You are caught in the middle.

Your rights and your ability to exercise them hang in the balance of this conflict. This book is a wake-up call to consumers, workers, patients, and lawmakers that we have reached a critical stage in the erosion of our civil justice system for which collective, corrective action must be taken before restoration is unachievable.

Plaintiff’s lawyers have succeeded in protecting Americans in many spheres where government regulators have failed.¹ The work of plaintiff’s lawyers is a primary reason that effective seatbelts and airbags now come standard in automobiles; perennial institutional concealment of clergy sexual abuse of underage parishioners was exposed and reformed; American manufacturers discontinued the use of asbestos in their production of thermal insulation, building materials, and motorized vehicles; highly addictive prescription opioids are no longer promoted to doctors and consumers; several brands of asbestos-contaminated talc-based baby and body powders have been withdrawn from the market; and injurious drugs like Vioxx, Bextra, and Accutane are no longer prescribed and sold. Plaintiff’s lawyers improved public health by successfully pursuing claims for clients harmed by defective products and corporate misconduct. In those efforts, they forced changes in corporate or institutional behavior that benefitted society as well as individual claimants. In these and other respects, plaintiff’s lawyers work collectively as a public health and victim advocacy group seeking legal change through the litigation process.²

However, the law that governs proceedings in the civil justice system is not fixed; it consistently changes to reflect the interests of the most politically influential. Over time, the winners and losers of legal disputes are the same winners and losers of political contests. The party in power wields its influence to shape outcomes in the civil justice system that meet the goals of its largest financial supporters. In practical effect, when a few injured people obtain substantial settlements or favorable jury verdicts against companies in a particular segment of industry, those defendants deploy immense financial, political, and institutional resources to repeal or weaken the laws that have been costing them money in the civil justice system. Laws are passed federally and/or in states to immunize whole classes of industries from legal liability in personal injury cases, such as from tobacco or guns. Over the last twenty years, patients who have been injured or killed by medical malpractice have been targeted and marginalized by state laws that were enacted ostensibly to reform the civil justice system. These statutes exist to reduce the quantity and economic value of medical malpractice claims by imposing strict damage caps upon what any person may receive for physical pain and emotional torment caused by a healthcare provider’s incompetence or recklessness. In application, these laws inflict the greatest harms upon patients experiencing the most pain, because the damage caps apply uniformly and unwaveringly to all claimants, irrespective of the duration and intensity of their suffering. One size fits all no matter what the facts of one case are in comparison to another, or how juries may assess them. Despite their clear disregard for the rights of mistreated patients and the judgments of jurors, medical malpractice reform laws proliferate because they serve the business interests of large insurance and managed healthcare companies that write these bills and have the political stroke to transform their wish lists into binding decrees.

As a people, we are vulnerable to such mischief because we fixate on defending certain constitutional rights at the expense of others that are no less imperative. Debates over the contours of the Bill of Rights frequently decide elections. Voters, through candidates for political office or judicial positions, fiercely debate how broadly or narrowly ancient parchment protects private gun ownership and whether people are entitled to bodily autonomy in making reproductive decisions.

But elections are rarely, if ever, won because a candidate promises to steadfastly protect your 7th Amendment constitutional right to trial by jury. They often should be, but they aren’t. The 7th Amendment reads:

In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.³

Traditional claims that arise at common law include harms, injuries, or losses that are caused by negligence, fraud, or breach of contract. The fundamental right to trial by jury to resolve those types of conflicts is as old as our democracy itself. The 7th Amendment, introduced by James Madison, was included among the original Bill of Rights in 1789. Thomas Jefferson announced its full adoption as an amendment in 1792. Whereas in 18th-century England, the Crown, or Nobility, decided legal disputes, our Framers believed it fundamental to democracy that a jury of lay citizens decide such matters. Thomas Jefferson declared emphatically, I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.³

Nobody denies the existence of the 7th Amendment, and yet no one can empirically dispute that Americans have been stripped of this existential promise piece by piece, year by year for the past two decades. In the following, I describe events that I experienced or things that I learned over three decades of representing injured people and/or their families in the civil justice system against corporate Goliaths that spend millions to sway legislation in their favor through lobbyists and campaign donations to pro-business (read: anti-consumer) lawmakers.⁴ If I achieve my objective, you as a reader will understand that this is a book about you, for you, rather than a book about me. The narrative reveals how and why the generation to which I was born (Gen X) had more enforceable consumer rights than the one into which my children were born. We must commit to rebuilding the civil justice framework that existed twenty years ago before tort reform skewed it to protect large corporate interests at the expense of mistreated American consumers, workers, and patients. Properly considered, this restorative mission aligns with the best ideals of social progressivism and traditional conservatism, and therefore should never be dismissed as a partisan priority exclusive to either the political Left or Right. Apart from other matters upon which people may differ, all those who believe in protecting the freedoms afforded by our Constitution should agree that repealing these bad laws is a crucial step forward in taking back our country. The alternatives of doing nothing or continuing to support candidates or groups that champion tort reform is self-defeating and existentially dangerous. If we do not collectively work to reverse the continuing dissolution of the 7th Amendment, our children, and certainly their children, will live in an America where human health and consumer protection are merely saleable, even expendable, corporate commodities.

---

¹ Rubin, Paul H., and Martin J. Bailey. The Role of Lawyers in Changing the Law. The Journal of Legal Studies, vol. 23, no. 2, 1994, pp. 807–31. JSTOR, http://www.jstor.org/stable/724467.

² Rubin, Paul H., and Martin J. Bailey. The Role of Lawyers in Changing the Law. The Journal of Legal Studies, vol. 23, no. 2, 1994, pp. 807–31. JSTOR, http://www.jstor.org/stable/724467.

³ Jefferson wrote this in a letter to Thomas Paine in 1789

⁴Some of my recent professional recognition includes:

Top 100 Civil Plaintiff Trial Lawyers in America (2016-2022)

America’s Top 100 High Stakes Litigators (2016-2022)

Top 10 Personal Injury Attorney (2022-2023)

Texas Super Lawyers (2004-2023)

CHAPTER ONE

In Memory of Barbara Behringer

Every passionate plaintiff’s lawyer has at least one case that stirs and feeds their soul for the rest of their career. Mine occurred in 2005. I was twelve years into my legal career and practicing at the law firm of Waters & Kraus LLP in Dallas, Texas, when I was asked by my law partners to try a case on behalf of Barbara Behringer. Barbara was a petite, dignified woman in her 70s, with high cheekbones softened by an easy smile. When I met her, she looked tired but not defeated. Barbara had been battling malignant pleural mesothelioma for almost two years, a cancer in the lining of the lung(s) principally caused by asbestos exposure. The disease is usually fatal, and in the mid-2000s the median survival rate for mesothelioma patients was about 18 months.¹ Many Americans are familiar with the term mesothelioma, via daytime television commercials and billboards featuring large headshots of attorneys with catchy slogans like Mesothelioma is all we do.² Perhaps less clear to most Americans is that litigation over claims for asbestos-related disease is the longest-running mass tort in American history. In the 1930s, claims by employees against employers for asbestos-related disease were already commonplace. In the 1960s, workers sick with asbestos diseases began filing products liability claims against asbestos-product manufacturers, sellers, and insulation contractors. By the 1980s, tens of thousands of claims for asbestos diseases filled courthouses around the country. Today, more than three thousand asbestos disease claims are filed each year.³ When I took on the Barbara Behringer case in 2005, I was 37 years old, but I had already tried thirty cases to verdict and conducted thousands of depositions, most of which were in asbestos litigation. I empathize with all my clients who are burdened by asbestos diseases, but the first time I met Barbara Behringer in her home near Waco, Texas, I felt a calling to not only help her but to force a reckoning over her plight. Barbara was dying, truly suffering, with a disease caused by the callousness of a large aluminum manufacturing company for whom she had never worked nor asked for anything: Aluminum Company of America (ALCOA). I felt not only sadness but rage about her affliction and impending death.

As I sat with Barbara in her home, the first thing I noticed was that she looked uncannily like my grandmother, Samuella Simon, with whom I was extremely close and lost to breast cancer when I was thirteen. Perhaps because of this, I was instantly drawn to her and felt a special bond. During this meeting, I also met her doting husband, LeRoy. LeRoy was a kind and avuncular man with a shock of thick white hair and bangs that fell just above his eyebrows. He loved his wife deeply and sought to attend to all her needs during this difficult time in their lives. They had been married for decades and had planned to travel America together to see family and friends, but Barbara suddenly fell ill, and the trip had to be canceled.

Barbara was largely homebound now due to her illness. She rarely left home other than to receive invasive chemotherapy treatments. The chemicals injected into her veins to kill cancer cells also killed healthy ones, causing Barbara to experience disabling nausea and weakness. Due to the intensity and frequency of these treatments, her quality of life was terribly diminished. The progression of mesothelioma and the harsh side-effects of chemotherapy cut her off from spiritual and social connections that had long been important to her. These included church services, family gatherings, and time spent with friends. I witnessed my grandmother suffer in a similar way and seeing Barbara in this condition elicited difficult memories. I remembered when my grandmother lay in bed for days at a time after chemotherapy, leaving her room only to vomit stomach acids in her bathroom. I remembered when she was too unwell to interact with me, and the look of hurt that crept across her face when she saw the disappointment in mine. There are things worse than dying, and they include the loneliness that terminally ill patients experience as they endure a social death that precedes the actual physical one. I still remember sobbing uncontrollably in my car as I drove away from Barbara’s house after that initial encounter.

I spent several hours with the Behringers in their home and learned from them as much as I could. Barbara explained that LeRoy was her second husband and they had been married forty years. In the 1950s, she was married and then divorced from a man named John Alford, a plant worker at an ALCOA smelting facility in Rockdale, Texas. He worked in the pot rooms at ALCOA, where aluminum ore was made by smelting raw materials in large industrial pots, each approximately twelve feet wide, twenty feet long, and over three feet tall. The pots were lined with insulation blocks containing asbestos. Workers in the pot rooms routinely removed the insulation with jackhammers and then shoveled it out, a process that took approximately three days per pot. When John worked at ALCOA, the pot rooms contained over 800 pots, divided into roughly 72 pots per room. Each pot room was a semi-enclosed area that measured about three football fields long and one wide. The jackhammering of asbestos insulation in the pots, over and over in pot after pot, filled the air and covered John’s work clothes with white asbestos-containing dust.

Unaware of the harm his work at ALCOA may have posed to him or his then-wife, Barbara, John frequently brought his work clothes home so that she could wash them. Barbara and John were married from 1951 until 1959, and during four years of their marriage, from 1953 until 1955, and then again from 1957 until 1959, John worked for ALCOA. Throughout these years, Barbara would regularly take his work clothes that were covered in the dust from the pot room and vigorously shake out that dust before washing them. She vividly described how that dust plumed into the air she was breathing, but believing it was merely everyday dust she thought nothing of it.

With all asbestos diseases, there is a long latency period before the disease develops. If, as Barbara was, a person is exposed to asbestos beginning in the early 1950s and later develops asbestos disease, that person will not experience symptoms from that disease until decades later. Barbara and John divorced amicably in approximately 1959, having borne no children. She and John both went on with their lives believing their marriage to each other was over and that chapter of their lives had forever ended.

In 2003, Barbara and her husband, LeRoy, were making final arrangements for travel and other pleasures of retirement they were eager to enjoy together when Barbara began to feel increasingly short of breath. Barbara had always enjoyed good health and these symptoms were both new and unsettling to her. As her shortness of breath grew worse, she made an appointment to see her family physician. The doctor examined Barbara and used a stethoscope to listen to her chest. Things didn’t sound right. He also ordered chest x-rays for Barbara. When the films came back, they didn’t look right either. Fluid had accumulated in Barbara’s chest that was compressing one of her lungs. That fluid collection, called a pleural effusion, was causing her shortness of breath. Also, there appeared to be a thick mass encasing the surface of that lung, sort of like the rind on a watermelon. Barbara was sent to a lung specialist, who drained her pleural effusion with a long, thick needle inserted through her back and between her ribs. Barbara was hospitalized shortly thereafter. In the hospital, surgeons performed a biopsy of the mass in her chest. Doctors then shared with Barbara and LeRoy the news patients never want to hear and that healthcare professionals dread having to deliver: It’s cancer and it’s terminal. They explained to her that she had malignant mesothelioma and that this cancer had two distinguishing features from most other cancers: It’s caused only by asbestos and there is no cure.

Barbara told me she was shocked by this diagnosis, but not rendered speechless. She recounted for me how feelings of dread, anger, and disbelief overwhelmed her as she screamed at the ceiling: Cancer! Asbestos? I’m going to die from asbestos cancer? How? Why is this happening? She then looked at her doctor and asked intently, Are you sure?

Yes, I’m so sorry, he replied, but we have treatment options that will give you more time.

Her doctors recommended aggressive chemotherapy. Her oncologist explained that chemotherapy could extend her life another year, maybe a year and a half. Without it, she’d be dead in six months. She was advised that the treatments would cause repeated bouts of intense nausea and probably extensive hair loss. In other words, Barbara could live longer but not comfortably. She did not hesitate, she told me. Barbara was not going to leave LeRoy one day sooner than she must, no matter what it took.

As Barbara’s lawyers, our job was to investigate where and when she was exposed to asbestos and, if we find answers, prove their truth to a jury. In Barbara’s case, these tasks were not difficult. As we gathered details from Barbara about her life, the fact that her former husband worked in a large industrial aluminum smelting facility in the 1950s quickly emerged as a solid lead. Aluminum smelting is a high-temperature manufacturing process that historically involved the prolific use of heat-resistant asbestos insulation products. Workers from the ALCOA Rockdale, Texas, facility had filed claims for asbestos disease before Barbara fell ill and they had given testimony about how and when they had been exposed to asbestos at ALCOA Rockdale. Our investigation revealed that one of those workers was John, Barbara’s former husband.

Some years earlier, John was diagnosed with his own lung disease, asbestosis. Asbestosis is internal lung scarring that is caused by breathing asbestos fibers. John hired lawyers (not Waters & Kraus, the firm where I worked) to represent him in a lawsuit related to his asbestos disease. During his case, he testified by deposition, a proceeding by which lawyers representing the companies he sued asked him questions, wherein he provided verbal responses under oath.

John’s testimony was both compelling and tragic. He described with detail how his work at ALCOA in the 1950s caused him to be repeatedly exposed to clouds of dust that emanated from asbestos-containing block insulation as it was jackhammered and shoveled out of the melting pots.

He testified that during the time he worked at ALCOA, his employer did not warn him or his pot room coworkers about any hazards of asbestos, nor provide them with respiratory protection.

His sworn account was corroborated by the testimony of several coworkers from ALCOA’s Rockdale facility. Shortly after he testified, John died. His death certificate revealed that asbestosis was a primary cause of his death. When one dies of asbestosis, they literally suffocate to death as their lung tissue scars with rock-like density and inelasticity.

By the time John testified in his own case, he and Barbara had long since lost touch. She did not know he was ill, nor when or how he died. I will never forget