CHARLESTON – A circuit judge has chastised some plaintiff’s law firms for not settling more lung cancer cases as well as the number of defendants in those asbestos cases.
He lists at least 14 cases with more than 150 defendants each.
Circuit Judge Ronald Wilson cancelled a mediation scheduled for Feb. 6 regarding cases in Lung Cancer Group 17 of the Asbestos mass litigation cases. Wilson has been appointed by the state Mass Litigation Panel to oversee the asbestos personal injury cases.
“Bottom line: there is no way I can mediate these cases with the vast number of defendants,” Wilson wrote in his notice dated Feb. 5.
Earlier in the notice, Wilson noted the parties were required to engage in settlement conferences Feb.6 with his assistance.
“In doing that I made a couple of assumptions that have proven to have no merit,” wrote Wilson, who is a circuit judge in the First Circuit that includes Hancock, Brooke and Ohio counties in the northern panhandle of the state. “I assumed that with the importance of the mesothelioma cases and the always possibility of an extended meso trial that you would be making every effort to settle your lung cancer cases prior to the start of the mesothelioma trial.
“I further assumed that because you would make those settlement efforts that on February 6, I would be attempting to encourage settlement in a reasonable number of cases – perhaps 20 or 30. Instead, this is what the current situation is.”
Wilson then lists some cases that apparently stood out to him: Brian Prim of the Prim Law Firm (based in Hurricane) and Michael Gallucci of Savinis, Kane & Gallucci (based in Pittsburgh) have 169 total defendants involved in three plaintiffs’ cases; Goldberg Persky & White (based in Pittsburgh) have 162 total defendants in three plaintiffs’ cases; Antion and McGee Law (based in Morgantown) have 158 total defendants in eight plaintiffs’ cases; and Motley Rice (based in Mount Pleasant, S.C.) has 66 total defendants in five plaintiffs’ cases.
“I can’t think of the right word to express my frustration with your failure to reduce the number of lung cancer cases to a reasonable number that, if we have to go to trial, it will not be like the mass trial that occurred in Charleston in another decade,” Wilson wrote. “Quite frankly I am concerned about the future of our great system of settling claims that has, for over 15 years, settled a substantial number of asbestos personal injury cases with very few trials when – to be perfectly frank – some of our West Virginia Case law is tested in appeals that will surely be considered by what is now a conservative West Virginia Supreme Court of Appeals.”
Wilson went on to criticize the plaintiffs’ firms more.
“In my judgment the phrase ‘you reap what you sow’ may come true to those who abuse the liberal civil procedure for suing questionable defendants, accusing them of causing personal injury to their clients when the evidence of their liability amounts to a mere gamble in a lawsuit,” the judge wrote. “That may or may not apply to you, but with the excessive number of defendants in these lawsuits it is a matter that may need further investigation.”
Because of West Virginia’s mining and chemical industry history, the state has seen thousands of asbestos lawsuits over the years. In 1996, the state Supreme Court established the Mass Litigation Panel to handle the growing amount of asbestos cases from across the state. Since then, the MLP has grown to handle other large-scale cases. Wilson is the judge appointed to oversee the personal injury asbestos cases.
The idea of “over-naming” defendants in litigation – especially asbestos – isn’t a new one. A Texas defense attorney once called the trend a scourge that costs litigants and impacts justice.
A consulting firm called KCIC says the highest number of defendants listed in an American asbestos case was 317 in 2014, 261 in 2015 and 458 in 2016. The average number of asbestos defendants increased from 59 to 64 from 2014 to 2018.
The Madison County Record, a sister publication of The West Virginia Record, reported about a Chicago company that fought back after it claimed an asbestos attorney wrongly named it in 415 lawsuits.
Avocet sought to recover $760,000 it had paid to defend itself in those cases filed in Madison County, Illinois, by lawyer Randy Gori. After it moved for sanctions against Gori in March 2017, his firm stopped naming Avocet in those cases.