Asbestos Litigation Madness: Have The States Turned A Corner?
This article accepts as premise that American asbestos litigation over
the past several decades has descended into madness. A movement is
afoot among state courts and legislatures that may prove to be the
beginnings of a reversal in teh disheartening trends of recent years,
perhaps the turning of a corner in this hugely important and highly
controversial are of tort litigation.
James A. Henderson, Jr.
Click here for full text of Mr. Henderson's article, which is also summarized below.
- A movement is occurring among state courts and legislatures aimed at reversing certain undesirable trends in asbestos litigation that have occurred in recent years.
- Recent events indicate states are addressing major factors that are contributing to the overburdening of asbestos litigation claims on the courts and defendants, as well as their risk of inefficient results.
- Such risk factors among certain jurisdictions has included substantive law being applied unfairly against defendants, too many uninjured and asymptomatic plaintiffs allowed to bring premature claims, too many "peripheral" or "bystander" companies being jointed as asbestos defendants, and traditional rules governing joinder, choice of law, and venue being ignored in some asbestos "mass tort" jurisdictions.
- However, over that past several years, states have been and continue to make great strides on their own in overhauling the tort litigation system and dealing with asbestos claims in a more efficient, cost-effective manner, and "just" manner.
- Formerly "problematic" states that have enacted tort reform legislation include Mississippi, Ohio, Texas, and West Virginia. Reforms have occurred in several other jurisdictions.
- In addition, state courts and legislatures have responded to problems presented by unimpaired claimants-plaintiffs who make claims in part because of concerns that statutes of limitations may start to run on such claims before impairment occurs-as well as plaintiffs attorneys who recruit said claimants and force defendants into mass settlements that are lucrative to those lawyers. These changes have occurred in the absence of any federal impetus.
- Recent court rulings and legislation in some states now require that specific medical criteria be satisfied for each type of claim and states are looking critically at lawyer-sponsored medical screening procedures that have produced a high number of unimpaired claimants.
- A growing number of state trial courts have created inactive dockets or are issuing case management orders that deal with unimpaired claimants until these claimants show actual injury in order to preserve such claims while giving priority to those most in need.
- To prevent plaintiffs' lawyers from forum shopping, states have enacted measures requiring that asbestos claims be brought only in jurisdictions that are factually related to the relevant events of claimants' exposures and to the domiciles of the parties. Limitations have also been placed on massive joinder of claims.
- Finally, state courts are reducing peripheral defendants' exposures to asbestos liability where there is a serious question of causation and there are other more responsible defendants with ability to pay.
- These reforms have been, in part, the product of organized tort reform efforts by interest groups representing manufacturers and liability insurers.
- The recent reforms at the state level described herein make it difficult to justify sweeping federal proposals to replace tort law in whole or part as Congress is has been considering.
*** POSTED JANUARY 23, 2006 ***