CHARLESTON – The “dreadful experience” has been avoided.
Each of the 38 cases in the consolidated asbestos trial scheduled to begin this week has been settled. The last of the cases was settled July 28, according to multiple sources.
First Circuit Judge Ronald E. Wilson, who also oversees the state’s asbestos docket, issued a notice July 21 regarding the consolidated trial that was scheduled to begin July 27 at the Highlands Event Center in Wheeling. The proceedings were moved from the Ohio County Courthouse to accommodate for social distancing procedures required because of the Coronavirus pandemic.
Wilson had told those involved with a trial that it would be “a dreadful experience” and urged parties to settle.
One defense attorney involved in the trial didn’t think the entire situation was handled in the best manner.
“Now that this is over, it seems reckless to have done it this way,” he said, requesting anonymity. “It was not necessary to require all of the attorneys and others involved in the litigation to travel together to one place for in-person meetings with the judge and with opposing counsel for what could have been accomplished much more safely over the next several months.”
In the July 21 notice, Wilson also told the parties to arrive July 27 prepared for trial that will include 38 mesothelioma and lung cancer cases. All but 11 of the cases had more than 100 defendants, and two of those had 96 and 99 defendants. One of the cases had more than 200 defendants.
“If you have filed motions for summary judgments or a continuance, you may assume they have been denied,” he wrote. “I have had to pick and choose motions that I thought had to be rule on prior to trial.
“There were too many motions for one judge to consider, and that is something we have to accept in mass litigation cases.”
Wilson did remind the parties they have the right to appeal to the state Supreme Court or to settle.
“Speaking of settlement, for those of you who have not experienced it, a trial with everyone wearing masks and jurors, attorneys, clients, witnesses and the judge all separated by six feet with the judge, the attorneys and the witness trying to communicate is a dreadful experience,” Wilson wrote. “If you’re going to settle – do it now and avoid this dreadful experience. If not, I have no choice but to make sure that the trials happen.”
Jury selection was scheduled to begin July 27. The actual trial was scheduled to begin Aug. 3. The Highlands Event Center is about 4,000 square feet.
“You do not have to report for a hearing before the court on July 27,” Wilson wrote. “However, you are still required to be in Wheeling … to be available to negotiate with plaintiffs’ counsel to discuss settlement of your clients’ asbestos claims. That may be done by phone or at the Highlands Event Center.”
In his July 21 notice, Wilson also listed procedure required to enter the building, even to conduct negotiations in person.
Everyone was required to wear a mask, have their temperature taken, asked about contacts with COVID-19, fill out a contact tracing information form and comply with the six-foot social distancing requirement. Also, no more than 20 people were permitted in that room at one time.
For jury selection, the 30 to 40 prospective jurors were going to be questioned individually with jurors and attorneys wearing masks and remaining at least six feet apart.
“I am not going to have the jurors report as they would if we were conducting a trial in the federal building,” Wilson wrote in a June 29 notice. “I am concerned that it would not be safe for too many people to be in that room at the same time.”
Citing health risks to attorneys and their families, some defendants had asked Wilson to delay the trial. Wilson has asked that anyone with the authority to settle a case or participate in settlement negotiations to stay within an hour of the Highlands Event Center until the jury returns a verdict.
Defense counsel noted that many of those people are representatives of insurance carriers who will be traveling from across the country and will have to quarantine when they return home.
As of July 28, West Virginia has reported 6,119 Coronavirus cases and 108 deaths related to the virus.
Earlier this year before the pandemic, Wilson chastised some plaintiff’s law firms for not settling more lung cancer cases and for the number of defendants in those asbestos cases.
He canceled a Feb. 6 mediation because of it.
“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.”
In response to that story, Wilson wrote an opinion piece praising plaintiff and defense attorneys for their work on “these serious cases,” noting that he has dismissed more than 38,000 asbestos complaints in the last nine years.
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.
