Kanawha sees 24 percent increase in asbestos filings

By Chris Dickerson | Mar 22, 2018

CHARLESTON – While the number of new asbestos cases across the country is declining, Kanawha County saw one of the largest increases in the country last year.

According to analysis of 2017 filings conducted by Washington-based consulting group KCIC, the Kanawha County docket saw a 24.5 percent increase last year over 2016.

In 2016, there were 98 asbestos cases filed in Kanawha County. In 2017, there were 122 such cases. Of those 122, 88 of them were lung cancer cases. That number represents a 33 percent increase from 2016, and it was the fifth most lung cancer cases filed in one court nationally last year.

And for the third consecutive year, Kanawha County had the most unique defendant companies named in asbestos cases. This year, the average number of defendants listed in Kanawha County asbestos cases was 183, up from 122 in 2016. The next closest number for 2017 was 120 in Wayne County, Michigan.

The KCIC report also shows that in West Virginia, almost 40 percent of the asbestos filings were by non-residents. Only Illinois (just over 60 percent) and Delaware (more than 90 percent) had higher percentages.

KCIC processes approximately 90 percent of total complaints in the U.S., providing it with "a significant amount of data and a fairly holistic snapshot of the asbestos litigation industry today," the report states.

The report notes that a lag time exists between when a case is filed and when it is received by KCIC, and that the data used for this analysis was received through Jan. 31. It states that when its 2018 report is published, the numbers for 2017 will increase "somewhat."

In terms of overall numbers decreasing, the report shows a decline of approximately 17 percent from 2015, when 5,336 cases were filed nationally, to 4,450 in 2017. A decline of 10 percent is reported between 2016, when 4,812 cases were filed, and 2017.

Here’s a breakdown of the number of cases from 2016 to 2017:

* Mesothelioma claims decreased by 5.2 percent - 2,311 to 2,190;

* Lung cancer claims decreased by 9.8 percent - 1,220 to 2,190;

* Other cancer claims decreased by 11,8 percent - 153 to 135;

* Non-malignant claims decreased by 9.2 percent - 754 to 685.

Mark Behrens, a Washington attorney involved in asbestos litigation reform efforts, said that decreases in filings "do not necessarily reflect the whole picture with regard to the cost of the litigation if plaintiff firms demand higher values for the cases they file or if defense costs rise."

"That data is not available," he said. "Even with a slight decrease in filings the asbestos litigation is still extremely costly for employers and needs to be reformed."

Behrens also said the data could reflect the "beginning of a long, slow decline in filings that may go on for several decades."

"The decline also may reflect that the dominant plaintiff law firms are diversifying into other litigation such as opioids or that some of the less reliable or weaker claims are being pursued in the trust system. Tort reforms such as asbestos trust transparency laws and court rulings excluding some plaintiff experts also could be a factor."

KCIC's report also discusses effects of personal jurisdiction rulings, saying that recent high court decisions favoring defendant companies in limiting where they can be sued could change the litigation landscape. The Bristol-Myers Squibb decision issued by the U.S. Supreme Court last June, for instance, has had an impact in jurisdictional rulings across the country.

Bankruptcy trust transparency (BTT)

West Virginia is one of 13 states that have passed legislation that adds transparency to the asbestos trust submission process – to help ensure claimants don't "double-dip" from both the courts and trusts – the report looked at whether legislation has made a difference in filing patterns.

Its analysis focused on Ohio because it was one of the first states to pass BTT legislation in 2013, and because it was also the first state with a significant number of asbestos cases to do so.

The report found a significant decrease in filings of 45 percent between 2013 and 2014. By comparison, overall filings in the U.S. decreased less significantly at 19 percent during that period.

It also found that mesothelioma claims in Ohio dropped during the same period, by 36 percent, while the decrease of mesothelioma claims in the U.S. was only 2 percent.

"The disproportionate decrease in Ohio may not be completely due to BTT legislation; there could be other factors impacting that state’s filing rates," the report states. "However, from these findings, we can start to make some inferences about the effect that BTT legislation may have."

The report also found that since BTT legislation was passed in Ohio, there was a "clear increase" in the percentage of Ohio residents filings in state courts – rather than out of state claimants.

For the third consecutive year, Kanawha County had the most unique defendant companies named in asbestos cases.

This year, the average number of defendants listed in Kanawha County asbestos cases was 183, up from 122 in 2016.

The next closest number from 2017 was 120 in Wayne County, Michigan.

Only St. Clair County, Illinois had a higher percentage of an increase. It was a 200 percent increase from 2016 to 2017.

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