We here at Abnormal Use recently watched a TED talk by memory expert Elizabeth Loftus titled, “How Reliable Is Your Memory?” The fascinating talk provided an overview of research by cognitive scientists on why people remember some things but not others, why two people can remember the same event differently, and how people can even innocently recall an event falsely. Loftus provided several interesting examples of “false recollections” that she has come across in her research, including studies in which researchers planted the idea in the minds of subjects that the subjects had been victims of violent crimes in the past. The subjects were not intentionally lying; rather, they genuinely believed that the event occurred when it had not. Loftus explains in her paper “How To Tell If A Particular Memory Is True Or False,” that there are two types of lying that people engage in: intentional lying, and lying “without knowing they are lying.”
As Morton Durbin explains in detail in a recent, well-written DRI article, these two types of lying manifest in asbestos litigation in the context of product identification. As noted in an excellent Mealey’s Litigation Report article from 2012, insulation manufacturer defendants such as Johns Manville were the primary defendants in asbestos litigation until they all filed for bankruptcy. Prior to the insulation manufacturer bankruptcies, all plaintiffs recalled the insulation manufacturers’ products. As noted by Judge George Hodges in his pivotal order in the Garlock bankruptcy case, after the wave of insulation manufacturer bankruptcies, “the evidence of exposure to those insulation companies’ products also ‘disappeared.’” In re Garlock Sealing Technologies, LLC, 504 B.R. 71, 84 (Bankr. W.D.N.C. 2014). For those who have not read Judge Hodges’ order, we would recommend taking Judge Peggy Ableman’s advice and reading the decision. The order details the apparent fraudulent lengths to which Plaintiffs’ lawyers went to conceal exposures to bankrupt companies’ products and to direct attention to fringe defendants. How can it be that (as learned in discovery in the Garlock case) Plaintiffs recalled an average of two bankrupt defendants’ products during the tort case but subsequently remembered an average of 19 bankrupt defendants’ products when it was time to file bankruptcy trust claims? Is the lying intentional, innocent, or some combination thereof?
Perhaps the better question is not whether the lying is intentional or “innocent” but how do defense lawyers successfully expose and/or combat it? Among other strategies, Mr. Durbin explained that defense lawyers should make a clear record of all of the details that the plaintiff recalls about solvent defendants and contrast that with the dearth of details that the Plaintiff recalls about the bankrupt defendants’ products. There is a growing trend among asbestos defendants to hire “memory experts” to address these issues. Placing settled defendants and bankrupt defendants on the jury verdict form would be quite effective in addressing the issue, as well.
Exhibits and other documents from the Garlock bankruptcy trial have been recently unsealed and can be downloaded here.