CHARLESTON – Gov. Jim Justice has signed legislation making changes to how asbestos lawsuits are filed.
Justice signed House Bill 2495 on April 15. The law, which will go into effect this summer, requires plaintiffs in asbestos cases to file a sworn information form that specifies evidentiary basis for each claim and provide supporting documentation.
The intent of the legislation is to stop the practice of over-naming of asbestos defendants in which plaintiffs’ lawyers name companies as defendants then often dismiss the claims against companies with no liability after months or years of litigation.
Behrens
Supporters of the new law say this tactic has unnecessarily driven up litigation costs, contributed to corporate bankruptcies and slows resolution of cases, delaying recoveries for plaintiffs.
“The new law should help stop over-naming in West Virginia asbestos cases where plaintiffs’ counsel ’sue first and discover facts later,’” Mark Behrens, an asbestos litigation expert with Shook Hardy Bacon, told The West Virginia Record. “West Virginia has become the ‘epicenter’ for over-naming of defendants in asbestos cases that never should have been sued in the first place.
“The passage of H.B. 2495 ensures there is an evidentiary basis for the claims against each named asbestos defendant. It will cut down on wasted defense costs, facilitate settlements and focus judicial resources on claims with evidentiary support.”
Critics say over-naming isn’t really an issue and actually could create more problems.
A recent sample of West Virginia asbestos cases by Mary Margaret Gay of Gay Jones & Kuhn found that, on average, plaintiffs sued almost 120 companies per lawsuit—and almost 40 percent of the defendants were eventually dismissed without a payment and no liability. She said legal fees for companies who had no liability in the first place can cost thousands of dollars per case.
The bill moved quickly through the West Virginia legislature after a compromise was reached. The bill passed in the House of Delegates with little opposition and unanimously passed out of the Senate.
The new law requires that:
* Within 60 days of filing an asbestos or silica action, a plaintiff must file a sworn information form that specifies the evidence that provides the basis for each claim against each defendant and include supporting documentation.
* Plaintiffs have a continuing duty to supplement the required disclosures.
* The court, on motion by a defendant, shall dismiss a plaintiff’s asbestos or silica action without prejudice as to any defendant whose product or premises is not identified in the required disclosures.
Circuit Judge Ronald Wilson, who oversees the asbestos docket as part of the state’s Mass Litigation Panel, has expressed frustration regarding over-naming.
Last year, Wilson cancelled a scheduled mediation based on the “excessive number of defendants” in a group of asbestos lawsuits awaiting trial. Wilson referenced at least 14 cases with more than 150 defendants each.
“There is no way I can mediate these cases with the vast number of defendants,” he wrote at the time.
Last year, Iowa became the first state to pass an over-naming reform bill. Similar legislation was introduced in other states this year, and Tennessee and North Dakota also are poised to enact their bills into law.