Jeffrey B. Simon was 37 years old when he met Barbara Behringer, a woman in her 70s who reminded him of his late grandmother.
Behringer was dying of mesothelioma, a cancer in the lining of the lung. The retirement plans she had with her husband, LeRoy, were derailed. Instead, in her remaining months alive, the couple faced a trial against her first husband’s former employer, which they argued was responsible for her exposure to cancer-causing asbestos.
Barbara died about three months after a Dallas County jury in 2005 handed out a $25.7 million verdict that was eventually slashed in settlement negotiations and overturned on appeal.
Simon writes that Behringer’s case still “stirs and feeds [his] soul” in his book Last Rights: The Fight to Save the 7th Amendment, published in October 2023.
Simon would go on to represent clients who sued pharmaceutical giant Johnson & Johnson over claims its baby powder caused mesothelioma. He has also been a leading lawyer in the state’s ongoing opioid multidistrict litigation and helped secure a $1.8 billion settlement for Texas.
Writing the book was cathartic, Simon told The Texas Lawbook in a January interview. It also turned out to be farsighted, Simon said, as the Texas Legislature mulls a proposed bill to roll back a law that was the cornerstone of opioid legislation.
“Secondly, I write in the book about the fact that there is no right that is so entrenched in the American experience that someone can’t take it away,” Simon said.
Simon spoke with The Lawbook about the writing process and the current events that he’s tracking. This interview has been edited for length and clarity.
The Texas Lawbook: What is keeping you busy right now?
Jeffrey B. Simon: Primarily the climate accountability case that we filed on behalf of Multnomah County, Oregon, as well as a case where we represent some of the injured and the bereaved from the mass shooting at Allen Premium Outlets in May of 2023. We have a case against the estate of the shooter, as well as some other corporate defendants, which include the mall owner and operator and the security company, where we allege that they … foresaw, and should have foreseen, that they were a soft target for a mass shooter and were inadequately secured. We also have a case against the hotel company where the shooter literally built an arsenal in his room to attack innocents and, we allege, was a very conspicuous and menacing looking figure for which they should have taken some action.
The Lawbook: What would you point to as some of the biggest trials that you’ve handled in your career?
Simon: Those where I represented someone who was suffering from malignant mesothelioma, or I represented the family of someone who died. We were doing cutting-edge work in that space. We were pursuing a defendant or a group of defendants that may have been untraditional relative to that era in asbestos litigation, but we had proven to a jury that this defendant was legally responsible for a devastating injury or death.
The Lawbook: Are there one or two high profile public matters that you are currently involved in that we can highlight?
Simon: I am still the chair of the plaintiff steering committee of the Texas opioid MDL. I am still co-lead counsel in the Dallas County case, which is set for trial in September of this year. Also, the climate case, which I think is one of the most important cases in the civil justice system right now, both in terms of the scope of the harm that is to be addressed and the enormous power of the defendant collective against whom we are prosecuting the case. Obviously, any case against Exxon and Chevron and British Petroleum and companies of that nature, you know that they’re going to try to marshal a very forceful defense.
So, we’re certainly taking on a proverbial Goliath in that respect but for reasons that we think are compelling. We certainly believe that the civil justice system is the great equalizer, and we hope that proves to be true. And then I think that the Allen mall case is important, because people can agree or disagree about what level of gun control is appropriate in terms of (a) who should be allowed to acquire a gun and (b) what type or types of guns should they be permitted to acquire, but I think everybody would agree — irrespective of their particular viewpoints about gun ownership — that any company that is going to invite very large numbers of people to come to their premises to transact business needs to provide adequate security for foreseeable risks.
The Lawbook: I want to ask you about your book, Last Rights: The Fight to Save the 7th Amendment. As a first-time book author, what was the process like, and how was writing for a book different from writing court documents?
Simon: There’s an adage that having written a book is the joy of writing one. But I actually enjoyed the process very much. It was cathartic, and I was able to collect ideas and thoughts that had been developed over a more than 30-year career and put them in one place, hopefully in a way that a reader finds both usable and compelling. I’m continuing to derive joy from having written the book, because I feel that the book was prescient about some things — in predicting some things that have come to fruition.
Yet again, in the Texas Legislative session, there is a bill proposed in the Senate to repeal public nuisance law, which is the cornerstone of the opioid litigation, which has been so successful for Texans and has done so much good for Texans. Whenever there is successful litigation against a potent industry, a wealthy and powerful industry, they will undoubtedly find lawmakers who are willing to try to enact laws to repeal the very laws that are holding them accountable in the civil justice system. And I just think it’s undeniable that opioid litigation has done a lot more good than harm in Texas, for Texans. So, the idea that you would just repeal the law that is the cornerstone of it makes no sense, other than to corporations who don’t want to be held accountable through the application of that law.
Secondly, I write in the book about the fact that there is no right that is so entrenched in the American experience that someone can’t take it away. We saw the president pardon over 1,500 people, some of whom were convicted of violent crimes against police. And I look at that from its legal dimensions. I want to set aside for you the political ones completely. Every single one of those people that got pardoned, as well as the ones whose sentences got commuted, was convicted by a unanimous jury based on preexisting law, and in every one of those cases, a judge who was sworn to uphold the law and apply it without fear or favor sentenced them according to guidelines for sentencing that had already been approved by higher powers. With simply the swipe of a pen, all of those convictions went away.
What I’m trying to say is that if we think that the jury system and our system of laws is sacrosanct because we had it for 250 years — it’s not. Laws are like teeth; you should tend to the ones you want to keep. That’s what I write about in the book. If you believe in a system of laws, or you want to dismantle a system of laws, that usually comes from the political process, not the legal one. So, you should understand that when you vote for candidates.
The Lawbook: Do you have any pre-trial rituals?
Simon: I am not the sort of person who throws salt over his shoulder. I am the sort of person who is certainly focused on never getting outworked. It’s very, very important to be as prepared as you can be and make sure that for everything you tell a judge … you are able to very quickly provide support for that. It’s very important to tell the judge if you don’t know the answer to a question that you don’t know. And since you don’t want to tell the judge you don’t know, it’s as important to be as prepared as possible.
The Lawbook: Do you have a favorite task to handle at trial?
Simon: My law partners have a joke about me. I’ll hand off tasks at trial, so long as I get to do the rebuttal argument. And, of course, the thesis is all I care about is getting the last word. So, if they are to be believed, then the answer is: As long as I do rebuttal, then I do what I came to do.
The Lawbook: On the other hand, do you have a least favorite task?
Simon: The short answer is no, but the longer answer is, the most important part of every jury trial, in my experience, is jury selection. And in many respects, jury selection takes the most skill of any other part of the trial, because so much of it is spontaneous. Theoretically, a lawyer can simply memorize their opening statement and closing argument. Of course, witnesses can be unpredictable in one form or another. But the particular skill that requires, I think, the most attention and the most energy sort of minute-to-minute is jury selection. And I like jury selection, but I can tell you that at the end of a two-day jury selection, I am a lot more tired than I am from any other part of the job.
The Lawbook: How do you celebrate after a trial win?
Simon: I’ve been known to enjoy good scotch. But I don’t know that I have any particular ritual other than this. When you’re immersed in a long trial, you don’t see much of your family. Most of my cases are out of town, and even if I’m in Dallas, where my family lives, I’m working very long nights and I get up very early in the morning and I’m in court all day. So, for me, there is something about just trying to be present with my family after a long trial that makes me feel like less of a heel for having been in trial for the last six weeks.
The Lawbook: What is your favorite kind of scotch?
Simon: Johnnie Walker Blue.
The Lawbook: And what is a favorite family pastime?
Simon: We’re kind of foodies. We love to travel. We love to ski. We like to play golf with each other.
The Lawbook: If you weren’t a lawyer, what career do you think you would have chosen instead?
Simon: Teach. I teach [mass tort litigation at the Southern Methodist University’s Dedmon School of Law]. I absolutely love it. And I actually thought about not going to law school but continuing to pursue a higher academic degree and teaching. There’s another universe where I’m teaching college students philosophy.
The Lawbook: What news developments or trends in law are you particularly keeping an eye on at the moment?
Simon: Apart from the current Texas legislative session, it is the tension between the executive branch and the judicial branch at the federal level. President Trump has a very different vision of what the justice system, especially the criminal justice system, as well as our immigration system, are supposed to do, than did President Biden.
For example, President Trump issued an executive order revoking birthright citizenship. Well, birthright citizenship has been guaranteed by the due process clause of the 14th Amendment of the United States Constitution since 1868. So, you’re going to have all manner of legal battles about that, and I’m certainly watching that as an observer.
Now, in terms of what I am watching as a participant, it is what the higher courts will rule in climate accountability cases. There was an issue put before them at the request of some fossil fuel-producing defendants in a case brought by the city of Honolulu. They asked the Supreme Court to reverse the ruling of the Hawaii Supreme Court, which was favorable to the city of Honolulu, and the Supreme Court declined review of that. There is another case currently before the Supreme Court, should it choose to review it, where states that have not filed climate accountability cases have sued states that have been [in an attempt to] to stop them from pursuing their climate accountability cases, and I’m interested to see whether or not the Supreme Court reviews that.
I think that you’re going to see over the course of years a number of issues where one side or the other in climate accountability cases asks the Supreme Court to review a matter and rule upon it. Whether they do and how they do is going to be very important, not just for the litigants themselves but in terms of environmental outcomes as well.