CHARLESTON – A Putnam County plaintiff’s attorney who handles asbestos litigation says a legislative bill is looking to fix a problem that doesn’t exist and actually could lead to more problems.
Brian Prim says proponents of House Bill 2495 and the identical Senate Bill 512 want people to believe the bill is about limiting the number of defendants that can be named in asbestos and silica claims. But, he says there actually is more to the bill that could be harmful.
“They (supporters of the legislation) make it appear that this simply is an over-naming problem they want to defeat,” Prim told The West Virginia Record. “Well, that’s really hard to say because I don’t feel there is an over-naming issue at all based on the number of companies that have produced asbestos products. I just don’t feel like we have a high number of defendants.
“Yes, we sometimes have a lot of defendants in our cases, but that’s because asbestos was a prevalent product in West Virginia. We have power plants, steel mills, chemical plants, mining companies here. The number we name is indicative of the number of products put into the market and exposing West Virginia workers.
“And let’s be clear … the real victims are the people who got cancer and their families.”
HB 2495 was introduced February 15 by Steve Westfall (R-Jackson) and Assistant Majority Leader Kayla Kessinger (R-Fayette). SB512 was introduced March 1 by Tom Takubo (R-Kanawha), Senate Judiciary Chairman Charles Trump (R-Morgan), Mark Maynard (R-Wayne) and Randy Smith (R-Tucker).
Most of the changes to state code included in the legislation have to do with the common practice of some plaintiffs’ attorneys to include dozens and dozens of defendants.
A national defense expert in asbestos litigation reform explained it.
“Many defendants named in asbestos complaints have no connection or liability for plaintiffs’ injuries,” Mark Behrens, an attorney for Shook Hardy Bacon in Washington, D.C., told The Record. “Rather, as plaintiff’s lawyers cast a wider net to capture solvent defendants, they ensnare many innocent companies in the process – just like a fishing net for tuna ensnares dolphins as by-catch. This type of lawsuit abuse is known as over-naming.
“The purpose of this disclosure bill is to eliminate the erroneous naming of defendants that do not belong in the lawsuits where there is no evidence the plaintiff ever was exposed to their products.”
Prim said he appreciates the concern for defendants not having to pay money for attorneys when they might end up being dropped from the lawsuit if they aren’t at fault. But he said the Rules of Civil Procedure make it difficult for plaintiffs’ attorneys in asbestos cases to do anything differently.
“Years ago, if I filed an asbestos lawsuit and later found out another party not named could be responsible, I could bring them in as a third party,” Prim said. “That option was eliminated in 2015. If an attorney doesn’t list a company that could be at fault, he could be committing legal malpractice. So, there is a legal obligation to name every potential defendant in case they were in some way at fault.
“The attorney can’t name someone as a defendant after the statute of limitations has passed. And, the client could be out of that money. So, how does an attorney reconcile that unless they name all of the possible defendants?
“Again, I’m sympathetic to what they’re saying. And remember, plaintiffs have to pay up front to add defendants because there is a per defendant cost on a complaint. I’d rather not list all of the potential defendants on a lawsuit. But until I know the details of the case through discovery, what am I supposed to do? I might give up a whole group of defendants.
“And, let’s be honest. Defense firms are going to lose out because of this legislation as well.”
Prim said the proposal essentially makes the plaintiffs do discovery themselves before the case is filed.
“We can’t know all of the details at that point,” he said. “The information required is sometimes in the purview of someone else. Just saying someone was employed by AEP doesn’t tell me much. But we may later see they were in a certain department their entire career. It takes times to get some details of exposure. I’ve got legal, ethical duties that I have to meet that are contrary to parts of this bill and other laws as written.”
“I hate for a business to have to pay any costs that it shouldn’t. But, I don’t hate that more than the fact that we have so many people who were just devastated by the asbestos industry. And, if these companies didn’t make or use asbestos knowing it was so dangerous, they wouldn’t be getting sued now.”
But Prim there’s more to the legislation than just the over-naming issue.
He said one major issue is that the legislation strikes out the word “nonmalignant” in one section.
“A court may consolidate for trial any number and type of (nonmalignant) asbestos or silica actions with the consent of all the parties,” the new bill says. “In the absence of such consent, the court may consolidate for trial only asbestos or silica actions relating to the exposed person and members of that person’s household.”
Prim said that was alters changes made in 2015, the last time any major work on asbestos claims was done in the state.
“As far as the non-malignant cases, they want to strike it from the section saying you can only file one at a time,” Prim said. “That means we can no longer have a consolidated trial for mesothelioma or cancer claims. We negotiated we could in 2015 but not for asbestosis.
“Now they want to strike that out and say one for all. We want our consolidated trials. It makes so much more sense.
“Listen, I think you’d be hard pressed to find a better system than what we have now. Judge (Ronald) Wilson has multiple trials a year, and it all runs pretty efficiently and smoothly. Companies are treated fairly. Victims get their day in court. We keep the system going.”
Prim also thinks the Republican lawmakers’ plans to make it so a product liability defendant can’t be held liable for materials later added by a third party is problematic.
He said it basically is codifying the Bare Metal Defense, which was rejected by the U.S. Supreme Court in 2019.
“What they’re basically wanting is that if someone is exposed to that asbestos, a defendant can say it came from somewhere else, so they aren’t liable. The U.S. Supreme Court said it’s a foreseeable action issue.
“Besides being in violation to current U.S. Supreme Court precedent, you’re putting the burden of victims onto the few defendants remaining, such as the local West Virginia premises such as Union Carbide or John Amos or whoever. Those local facilities can’t get out of the liability.”
Still, Prim said both sides should be willing to listen to the other and make tweaks if it helps everyone.
“I don’t understand why the West Virginia Legislature would think any of these issues they’re seemingly trying to correct are really problems,” Prim said. “Zero of this money comes from West Virginia. The companies wanting these changes are out-of-state entities and insurance companies.
“It isn’t going to help the economy. It will bring no jobs or attract more people to the state. The only people who could be affected are people who have mesothelioma and lung cancer, and it’s going to hurt them even more. It’s not going to help a single person here in West Virginia.”
Prim said he wonders why Westfall is sponsoring such a bill when so many people in his district who work or worked at the Ravenswood aluminum plants could be affected adversely by the bill.
“Who do you work for?” Prim asked, referring to Westfall. “There is zero West Virginia basis to this bill. If it really is an issue, let’s have the federal government do something about it nationwide. They’re just doing whatever the insurance companies want them to do.
“I don’t think the over-naming is really an issue, and I really don’t know how I can do everything this legislation would be asking and still fulfill my duties as a lawyer to my clients. How do you do it properly and meet all of these proposed rules? I don’t care to try to be more specific in naming defendants, but I don’t know how we make it work with the way things are set up now.
“These kind of requirements are difficult to meet, and I think some are illegal. But, hopefully we can work out something.”
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.