The Man Who's Cutting Through The Asbestos MessMichele Galen
An old joke among New York's elite legal circles is making the rounds again. It goes like this: A psychiatrist who dies and goes to heaven is greeted enthusiastically by St. Peter. The saint gushes that he has been waiting for a shrink to arrive, because God is having delusions of grandeur. He thinks he's Jack Weinstein.
The joke, with its blend of respect and ridicule, says a lot about Jack B. Weinstein. A federal judge in Brooklyn for almost 25 years, Weinstein, 69, has a reputation as one of the nation's most aggressive and creative jurists--with an ego to match.
As a Columbia University law professor, Weinstein made a name for himself in the 1950s, when he headed a panel that rewrote the rules governing how civil cases are practiced in New York courts. He soon was recognized as a leading U. S. authority on the rules of civil procedure and evidence. Then, after being named to the bench by Lyndon B. Johnson, he quickly built a reputation as an activist (table). In one of his most famous cases, Weinstein in 1984 pressed chemical manufacturers and Vietnam War vets into settling the massive Agent Orange class action. In 1989, he pushed aside a jury verdict against Long Island Lighting Co., paving the way for the utility to settle its nasty dispute with customers over the construction of its Shoreham nuclear power plant. Now "Lord Jack," as he is known around the courts, is taking on asbestos.
It's a monumental task. More than 100,000 asbestos-injury cases are pending on the nation's dockets. While they remain unresolved, they're clogging up the courts and keeping some of the neediest claimants from getting any cash. Meanwhile, the damage claims have pushed 15 companies into bankruptcy, including Manville, National Gypsum, Celotex, and Eagle-Picher.
Ultimately, Weinstein's aim is to undo the logjam by crafting an efficient and fair way for courts to handle all sorts of megacases known as mass torts. These include asbestos claims and suits over environmental disasters such as Bhopal. "There's been an inertia of how these cases have been handled," says Arvin Maskin, an Eagle-Picher lawyer and the Justice Dept.'s lead counsel on Agent Orange. "Few judges in the U. S. would have the clout and vision and confidence to step back. Judge Weinstein said: `Wait a minute. What is going on?' "
ROAD MAP. Weinstein's agenda is set out in edicts he issued in two asbestos cases that he went to great lengths to oversee. In one, involving Eagle-Picher Industries, he granted the company's unusual request to lump together an estimated 170,000 current and future asbestos-injury claims into a national class action. Then, in a first-of-a-kind order in December, he put on hold every suit then pending in state and federal court--and pushed the parties to settle. Plaintiffs' lawyers were still fiercely resisting when Eagle-Picher filed for bankruptcy in Cincinnati and Weinstein lost jurisdiction. But by then, he had laid out a blueprint for others to follow.
Weinstein was equally bold in the other case. It involved the Manville Personal Injury Settlement Trust, set up to pay victims and let Manville Corp. leave Chapter 11. There, he leveraged his authority over 571 cases involving Brooklyn Navy Yard shipbuilders to seize control over the cash-starved trust, a key defendant. He then spurred Manville to agree to advance the trust up to $520 million over seven years and pushed plaintiff's lawyers to agree to a settlement he had engineered. The vehicle for the deal is a class action that recasts the trust's payout system so the neediest claimants--not the swiftest to the courthouse--get paid first. The judge later held hearings on the settlement's fairness in four cities. He is set to hold a final one in Manhattan on Jan. 22, in part to reply to gripes by other defendants that the pact furthers his aims at their expense.
The determination that Weinstein has shown in cutting through the morass of tangled cases also leaves him open to attack--and even reversals. "He often reaches what he believes is the right result and then reaches to expand the law to get there," says lawyer Sheila L. Birnbaum, who has both won and lost cases in Weinstein's court. It's a tendency that has earned Weinstein another nickname, "Reversible Jack." He says he's not bothered by second-guessing: "I don't have any qualms about it. I decide cases. I move on."
CHILD ACTOR. Indeed, Weinstein seems to go out of his way to be unconventional. In court, he doesn't wear a robe and often shuns the bench, preferring to sit among the lawyers at a conference table. He begins his days at 5 a.m. with a half-hour swim against a current in an 8-by-12-foot automated pool in his Kings Point (N. Y.) home. At lunchtime, he pops out to stroll or play tennis.
The judge's love of the theatrical harks back to his early days. The son of a sales manager and an amateur actress, he was on the stage at eight, earning $25 a week during the Depression and once had an Actors' Equity card. Weinstein put himself through Brooklyn College at night by working on the docks for 7 1/2 years. He attended Columbia's law school on the GI Bill after serving as a Navy lieutenant during World War II. By then, he had married his college sweetheart, the former Evelyn Horowitz, and they had had the first of their three sons. At night, his wife worked as a social worker, and the law student cared for the baby. In 1963, Eugene H. Nickerson, the Nassau County executive and a Long Island neighbor (now a federal judge in Brooklyn, too), named Weinstein county attorney. His political ties led to his 1967 judicial appointment.
By taking on asbestos, Weinstein is just being himself. His legal rulings may be overturned, but his highly publicized efforts have already had an effect. On Sept. 27, Supreme Court Chief Justice William H. Rehnquist named a six-judge asbestos committee to propose solutions. If it does, the Weinstein joke will be around awhile.
PRONOUNCEMENTS FROM THE BENCH
Judge Jack Weinstein has taken on some big causes and made some high-impact rulings. Here's a sampling:
CRIMINALS 1978 In a novel move, he declared that criminals are entitled to a hearing before sentencing if there's dispute about their character. The ruling led to the so-called Fatico hearing last fall involving Michael Milken
THE ELDERLY 1984 He ordered a rewriting of medicare forms to make them understandable to patients. He described the old language as a form of official-ese, federal-ese, insurance-ese, and doublespeak
AGENT ORANGE 1984 Within months after taking over the five-year-old dispute, he pressured the chemical manufacturers and plaintiffs' lawyers to reach a settlement that set up a $180 million fund for disabled vets
LILCO 1989 He overturned a jury verdict in the heated litigation against Long Island Lighting Co. over construction of its Shoreham nuclear power plant. The ruling led to a pact between Lilco and its customers to cut rates