Jon Campisi Jul. 16, 2015, 2:36pm


BALTIMORE (Legal Newsline) – An asbestos defense attorney practicing in Baltimore says decisions made in the 1990s to consolidate asbestos suits helped to create a huge backlog.

Today, the Maryland judiciary is experiencing a massive backlog in asbestos cases – the number of both “active” and “inactive” cases has reached a staggering 30,000-plus.

The court system has tried various methods to clear up that backlog throughout the years, but at times it seems as though it has been fighting a losing battle.

“The consolidation model was a failure,” attorney F. Ford Loker said of the first two rounds of the procedure.

Loker raised an old saying that if you build a superhighway, all it does it attract more cars. Similarly, consolidation would likely encourage the filing of more asbestos claims, he feels.

Loker said he believes this sentiment is partly what led to a judge denying a request made by a powerful plaintiffs firm to create a new round of consolidation.

Back in 1990, during a time of an unprecedented number of asbestos filings, the court created a consolidation of 8,555 cases, which consisted of a single trial for common issues followed by mini-trials designed to resolve issues specific to each case, according to court documents.

It was also during this time that asbestos cases from other Maryland jurisdictions were transferred to the Circuit Court for Baltimore City, causing a large caseload to grow even larger.

Proceedings relating to common issues took place until 1993 while the “mini” trials of individual issues lasted through 2002.

A judge instituted a second consolidation process in 1994 and 1995 that was designed to resolve the additional 1,300 cases filed between 1990 and 1993.

Then, in 1999, the court convened a working group of lawyers to ponder ways in which to cut down the backlog of post-consolidation mini trials, judicial documents show.

But while the approach helped relieve some of the backlog, case filings continued to increase because the number of new filings outpaced the disposition rate of the docket, according to court papers.

More recently, Maryland lawmakers directed the judiciary to undertake a study of the asbestos docket in the Circuit Court for Baltimore City, saying they, too, were concerned with the massive backlog of such cases.

In turn, the judiciary conducted an assessment of its case inventory and proposed a plan that it says should help with the problem – and consolidation, such as was used in years past, doesn’t seem to be the go-to choice in eradicating the backlog this time around.

In a report issued to the Maryland General Assembly, Judge Mary Ellen Barbera, chief of the Court of Appeals, Maryland’s highest court, singled out the procedures employed in the U.S. District Court for the Eastern District of Pennsylvania by Judge Eduardo Robreno, who became convinced that “prior methods of addressing the asbestos docket congestion, such as aggregation and consolidation, had proven ineffective.”

Robreno, who oversees the federal asbestos multidistrict litigation, created a case management system based on a new paradigm, Barbera wrote.

And during a five-year period, the federal court in Philadelphia resolved more than 183,000 cases, resulting in just fewer than 3,000 cases remaining on the docket as of the fall of 2013.

Robreno, Barbera wrote, reached several conclusions that can serve as “guideposts for fashioning a meaningful case management plan.”

And among those conclusions, according to Barbera’s report, was that “regardless of the amount of judicial effort and resources, unless the court establishes a toll gate at which entrance to the litigation is controlled, non-meritorious cases will clog the process. Therefore, courts must establish procedures by which, at an early point, each plaintiff is required to provide facts which support the claim through expert diagnostics reports or risk dismissal of the case.”

Before Barbera was tasked with coming up with solutions to the backlog problem, another Maryland judge took a different route from years back – he denied a motion for consolidation.

In the Circuit Court of Baltimore City in March 2014, Judge John M. Glynn had denied a June 2012 motion by the Law Offices of Peter Angelos, which files the overwhelming majority of cases in the court, to consolidate more than 13,000 asbestos cases.

The plaintiffs’ firm wanted to see a three-phased consolidation of asbestos cases pending in Baltimore City.

Defense attorneys opposed the motion, stating that it was “long on optimism and short on specifics as to which cases will be included and how the Court could construct and manage such a scheme,” according to Glynn’s judicial memorandum.

Glynn said that he was not convinced that a new round of consolidation would result in a “more equitable or more efficient asbestos docket.”

The judge had also stated that if the court granted the motion for consolidation, the judiciary would be burdened with many years of mini trials of “unknown scope and viability.”

Any reforms to the asbestos litigation have to increase the “efficiency and fairness of the asbestos docket,” the judge noted at the time, and since some of the pending cases remain situated in an “inactive” docket, meaning they’re not ready to go to trial, consolidation would actually create more of a burden, and not help relieve a clogged system, the latter of which is the ultimate goal.

In his memorandum, Glynn wrote that the court has little faith that the “ill-defined proposal of the movants would improve the operation of the asbestos docket.

“As far as this Court can tell from the vague and largely unproven claims of the parties, past experiments with consolidation have had mixed results, notwithstanding appellate decisions that found those consolidations were within this Court’s discretion,” he wrote.

“The indiscriminate combination of a large number of cases, the details of which are little known, poses too great a risk of confusion of the issues.”

Glynn wrote that the court cannot decide this matter on faith, but rather on facts, “and the record contains a dearth of facts, relying instead on baseless assurances that this proposed consolidation would drive mass settlements and not require massive resources.”

When the Angelos law firm filed its motion for the third consolidation, defense lawyers like Loker were able to present “what a fiasco the first two endeavors were,” said the veteran attorney with Miles & Stockbridge who has focused heavily on asbestos defense for 34 of his 40 years practicing law.

The defense lawyers were relieved when Glynn ruled against Angelos and other plaintiffs’ firms.

One thing that got to the judge, Loker said, was when the plaintiffs’ attorneys refused to divulge how they would choose lead plaintiffs during consolidation.

They said the court would be forcing them to violate attorney-client privilege. Glynn disagreed with the argument.

In an interview with Legal Newsline, Loker said Maryland seemed to be unique in the nation with its system of having the plaintiffs’ attorneys control the asbestos docket, and not the judges or other court officers.

And it was the outgrowth of Glynn’s decision that led the Maryland General Assembly to, on the last day of the 2013 session, direct the courts to study the asbestos backlog problem.

Not much has changed since Barbera issued her report back in November, but Loker noted it would take time to get a “complex rolling docket of cases redirected.

“It’s no criticism of the court system whatsoever that we’re still doing things the old way,” he said. “There is change afoot.”

Barbera plans to lay out a new management approach during the next several years that she says will provide a “reasonable, effective and equitable alternative to the present system.”

The plan is modeled after the case management approach instituted by Robreno.

The plan includes adding a second judge to the current asbestos trial group structure with the goal of enhancing trial date certainty and ensuring that plaintiffs “see no reason to take full advantage of trial opportunities.”

A retired judge would also be brought aboard along with a special master and two clerical staffers to manage pretrial matters.

“The record of the past thirty years shows that repetition of previous methods of case management will not produce an improvement in the asbestos caseload,” Barbera concluded in her report.

“It is apparent that the court needs to adopt new procedures that will support active management of the docket.”

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