CHARLESTON – A new report calls West Virginia the epicenter for the over-naming of defendants in asbestos litigation, with one recent case having 210 defendants.
The study, released January 18 by the Mississippi law firm of Gay Jones & Kuhn, also says the high rate of dismissals in such cases validates the over-naming problem. It says there is an increasing trend of plaintiffs attorneys to “sue first and discover facts later.”
“Asbestos litigation continues to create problems for businesses and West Virginia is the epicenter,” attorney Mary Margaret Gay writes in the report. “Over-naming of defendants in asbestos litigation, who have little or no known liability for asbestos-related products, is a serious issue and it is trending upward for companies.”
Gay
The report echoes complaints made last year by Circuit Judge Ronald E. Wilson, who suggested some lawyers may be abusing West Virginia’s liberal civil procedures by filing cases they know lack evidence and hoping some innocent companies will settle cases to avoid legal costs and the uncertainties of litigation. Asbestos litigation abuse also was listed as one of the reasons West Virginia remains on the annual Judicial Hellholes report.
The study focused on 38 cases on the state’s asbestos docket set for trial in July 2020. There were at least 4,489 total defendants – as many as 436 different companies – named on the complaints. The average complaint named more than 118 defendant companies.
“The percentage of times those companies are named and then dismissed with no liability is contemptible,” Gay wrote. “In the lung cancer trial group, on average, 35 percent of all the defendants named on a complaint were dismissed with no finding of liability. That average dismissal percentage jumped to 39 percent for the exigent trial docket cases. The exigent docket is comprised of mesothelioma and lung cancer cases.”
Gay says the number of defendants named on a typical asbestos complaint in West Virginia is increasing yearly as well.
“Cases in the lung cancer trial group named an average 115 companies on a single complaint,” she wrote. “The number increased to an average 120 defendants named on a complaint for exigent cases set on the 2020 trial docket in the state.”
Of the 38 complaints in the July 2020 group, one complaint named 210 companies as defendants, and 26 others named more than 100 companies as defendants.
“These complaints list pages and pages of defendants with no specific connection or exposure to a company or a product related to the company,” the report states.
The case with 210 defendants – Robert Kincaid v. 3M et al – was filed in July 2019 by the Antion McGee and Maune Raichle law firms – lists five pages of defendants. As of September, about 26 percent (55 defendants) had been dismissed without any liability. Antion McGee is based in Morgantown, and Maune Raichle is based in St. Louis, Missouri.
Last February, Wilson chastised some plaintiff’s law firms for not settling more lung cancer cases as well as for the number of defendants in those asbestos cases. He lists at least 14 cases with more than 150 defendants each.
Wilson cancelled a mediation regarding a group of 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 a 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.”
“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.
In July, Wilson warned of “a dreadful experience” for those taking part in an upcoming asbestos trial amid the Coronavirus pandemic, urging parties to settle. Those cases did settle.
In the report, Gay says the number of defendant companies named in asbestos lawsuits continues to grow despite more than 100 “Big Dusty” companies that have filed for asbestos-related bankruptcy protection and no longer are named in cases.
Some other tidbits from the report:
* The analysis shows over-naming of defendants in almost every asbestos complaint. A defendant is considered dismissed with no liability and no settlement if the docket reflects an order for dismissal without prejudice.
* The number of companies dismissed without liability is likely even higher than indicated because while the cases were ended in July 2020, West Virginia court records do not reflect a final status for large numbers of defendants. In most of the cases well over half of the defendants sued have no status.
* The average number of companies named as defendants in asbestos lawsuits was 118, or about 45 percent higher than the national average of 65 defendants.
* The data in this report was compiled and analyzed by Gay Jones & Kuhn using publicly filed documents, information and case dockets made available in West Virginia asbestos cases. The data cited is based on case information posted and available as of September 30, 2020. These numbers will continue to change as remaining defendants resolve and/or are dismissed without pay from these cases. A defendant’s status in a case as cited in the report based on the docket reflection of the type of final Orders of dismissal entered for each defendant.
* A defendant is considered dismissed with no liability and no settlement if the docket reflects an Order for Dismissal Without Prejudice; a defendant is marked settled/paid if the docket notes a verdict (none are reported in the data set reviewed) or a Dismissal with Prejudice on the docket; and a defendant is considered pending if the docket does not reflect a final status Order.
* It is unlikely that any defendant remains pending in the cases on the trial dockets, as those trial dates have now passed. However, without clear docket notation there is no information to report related to their dismissal or settlement status. It is likely that the number of dismissals for defendants with no liability is higher than reported on the docket.
“Some of the companies named in recent years on complaints in West Virginia had never been historically sued in asbestos litigation,” Gay writes. “The high dismissal rates for companies named on asbestos complaints validates the over-naming problem.
“Over the past three decades, more than 100 companies have filed for asbestos-related bankruptcy protection, leaving plaintiffs’ attorneys scrambling to find and name new viable companies in lawsuits. This search for the ever-solvent defendant has led to the habitual over-naming of asbestos defendants that do not belong in the case and end up being dismissed after costly litigation with no liability.”
The report also highlights a case that had 75 defendants listed in the complaint. By the time the case was set for the 2020 trial docket, 70 percent of the defendants had been dismissed without any payment for liability.
“These companies were named in cases and paid ongoing costs of litigation only to be dismissed without pay prior to trial,” the report states.
The report states 400 defendant companies were dismissed from every case that they were named on the complaint.
“For a company in West Virginia litigation, this means litigation costs are baselessly incurred for a large portion of the cases in which the company is originally named,” Gay writes. “This litigation tactic is unnecessarily driving up litigation costs, bankrupting companies, creating further West Virginia court backlogs, and leaving unsuspecting victims with delayed recoveries.”
To download the full report, visit the Gay Jones & Kuhn website.