Getting to Know: Kay Baxter

If anyone knows how to handle mass tort claims, it’s Cosmich Simmons & Brown PLLC’s partner, who was asked by one of the largest insurers in the U.S. to defend the first Chinese drywall claim accepted for defense. She sheds light on mass tort trends and how insurers and attorneys can work together to maximize the defense of these complicated cases while minimizing costs. 

On trends in mass tort claims:

“Due to a recent large, much-publicized verdict, talc is definitely an emerging issue. Even the local car accident plaintiffs’ firms are jumping on the bandwagon. Talc was used in both cosmetic and industrial applications. Right now, the focus is on the use of talc in cosmetics, but we expect plaintiffs’ attorneys to make the jump to the industrial side once they make the connection. Talc was used as an anti-sticking agent in some industrial settings, and it has an easy connection to asbestos because they are both mined and dusty. Talc also is described as either an asbestiform or non-asbestiform. The word ‘asbestos’ has already generated a huge fear factor, and the fact that talc can be associated with that word and cancer I think demonstrates its marketability to plaintiffs’ firms. I also think that the lead pipe water contamination issue we are seeing in Flint, Michigan, will continue to pop up around the country—it’s already starting. Lead litigation has been around for a while and it’s proven to be harmful, so it’s an easy target.”

On the proliferation of asbestos litigation:

“The tentacles of asbestos litigation just keep getting further removed from what I generally like to call ‘the big dusties.’ The defendants that really caused the damage—manufacturers of thermal insulation—have long since been in bankruptcy. But we still have people getting sick from mesothelioma and new defendants continue to be added. The defense of these new ‘peripheral’ defendants should, in my opinion, be pursued aggressively.”

On working with claims professionals:

I do a lot of insurance work, and I have found that the claims professionals with whom I work are very in tune with the most active plaintiffs’ firms that are filing cases across the country. They are well-versed in the tactics and style of these various plaintiffs’ firms, and sharing their knowledge with me helps us work together to craft an effective defense for the jurisdiction in which I’m representing various clients.  Conversely, I alert the claims professionals with whom I work if there is a new plaintiffs’ firm filing lawsuits with new defendants in my area. Working together with the claims professionals on my defense strategy enables both of us to craft a strategy that meshes with their nationally coordinated defense.  It’s all about working together and sharing knowledge to achieve the best outcomes.”

On emerging plaintiffs’ strategies:

“Any time I notice a new tactic or discovery request by a plaintiffs’ firm, I immediately alert the claims professionals with whom I work. Presently, I am seeing discovery requests in asbestos litigation from plaintiffs’ firms seeking full disclosure and burdensome document production related to coverage litigation between the insured and its insurers. The goal of the plaintiffs’ firm is to determine if the affirmative defenses in the asbestos litigation by the defendants comports with the allegations they are asserting in the coverage dispute with their insurers.”