LEGAL NEWSLINE

BALTIMORE (Legal Newsline) - A Baltimore judge has denied several requests to consolidate more than 13,000 asbestos cases in an effort to bring pending asbestos cases to trial and resolution.

On March 5, Judge John M. Glynn of the Circuit Court for Baltimore City filed the order denying the plaintiffs' Motion for Asbestos Case Consolidation and Adoption of Trial Plan, which was originally introduced in June 2012.

Glynn reached his decision after reviewing arguments and studying various approaches to alleviate the substantial number of cases pending on the asbestos court's docket.

"The parties have posed questions and raised concerns about the need to reform the docket that has become the repository of all asbestos claims in the State of Maryland," Glynn wrote.

On June 19, 2012, the Law Offices of Peter G. Angelos, PGA, filed the motion on behalf of thousands of plaintiffs with pending asbestos claims in the court.

The movants believe the court's asbestos docket has reached a crisis and propose that their method would resolve outstanding claims, referring to prior consolidation methods from the 1990s as support.

As part of their plan, the movants' consolidation proposition, called Consolidation III, would have commenced in three phases:

-Plaintiffs' counsel would select 15 Illustrative Plaintiffs from among the thousands of included cases, which would be tried in full to verdict against some collection of defendants presently unknown;

-The plaintiffs would then seek a round of trials to resolve punitive damages claims arising from Phase 1; and

-All verdicts reached during Phase 1 on defendant liability would then be applied to so-called "minitrials" to individual claims of exposure, causation and damages, to resolve the remaining cases.

The movants ultimately believed common issues could have been adjudicated in a consolidated trial and subsequent trials for individual claims.

"The plea to breathe life into Consolidation III arises from the inference that all asbestos litigation is comprised in part of global issues pertaining to aspects of defendant liability, and the belief that a similar scheme worked in the past," Glynn wrote.

The Baltimore court first attempted this approach in 1990 with Consolidation I, which "generated 'consolidated settlements' between plaintiffs and multiple defendants' prior to trial."

Consolidation II occurred shortly after to address claims deriving from the Consolidation I timeframe.

"Movants argue that a resurrection of the consolidation approach would be the best means to afford claimants their day in court. But they offer no explanation for why this approach was abandoned years ago only to arise from its ashes in the current proposal," Glynn wrote.

The defendants were universally opposed to the PGA motion and filed a joint response dismissing the consolidation proposal and criticizing the lack of detail in the motion.

They point out that the motion is "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."

"Defendants urge caution that inherent due process violations haunt the PGA Motion," Glynn added.

They contend the proposal lacked the proper details as to which cases and issues would ultimately be consolidated into one massive trial.

"As such, it could be a tremendous waste of court resources to charge headlong into consolidation without first giving due consideration to factors aside from clearing dockets," the order stated.

"Defendants argue that an 'unmanageably long and complex' trial scheme, as proposed, would actually be less efficient than the current method of managing the asbestos docket," it added.

The defense further argued that one jury cannot be expected to strictly separate the common issues from the causation and exposure questions unique to each case due to the broad array of issues and parties they would be presented with.

They believe the massive amounts of various evidence would confuse a jury, resulting in prejudice to individual defendants while denying both parties a fair trial.

"If we are in the dark as to the breadth and diversity of the common issues aspect of the proposed scheme, then this court cannot accurately anticipate the risk of juror confusion of the issues," Glynn wrote.

A hearing was held on Dec. 17, 2012, in response to the defendants' contentions that the court lacked sufficient information to make an informed decision on the PGA Motion, during which the court inquired as to the potential of the proposal to improve the docket as well as other viable reform alternatives.

In a memorandum opinion issued on Feb. 5, 2013, Glynn seeks clarification necessary to make an informed decision on the issue.

The PGA firm replied on March 7, 2013, reiterating that previous consolidations were upheld on appeal, and an additional consolidation attempt would bring proper conclusions to thousands of pending cases.

Glynn wrote that the movants provided an estimated timeframe for the phases, but refused to explain how they would select the plaintiffs' cases to be tried, claiming attorney work product privilege. They also dismiss a proposal for summaries of the facts and merits of a randomly chosen set of the cases, arguing that proper scrutiny will take place when they proceed to discovery and trial. Lastly, the firm anticipated that consolidation would produce mass settlements and relieve the court of the need for trial.

The defense also responded to the court's opinion, reiterating skepticism of the proposal. They believe that the movants fail to provide details on how the consolidation scheme would operate, who would be involved and how the court will find the resources to carry out the proposal.

Glynn gave a brief synopsis on former consolidations, which are relied upon pretty heavily for support by the PGA Motion, writing that Maryland "has ranked at the top on lists of states with the largest number of asbestos lawsuits filed" for decades.

He said that by April 1990, there were more than 4,900 asbestos cases filed in the court, reaching an average of 200 cases per month.

After failed attempts at controlling the growing docket, the court proposed to consolidate for trial certain common issues in asbestos lawsuits.

"This experiment was predicated on the belief that a definitive, global answer to common issues would, one way or another, foster resolution of cases," Glynn stated.

So in April 1990, the court consolidated 8,555 pending asbestos cases according to questions of product defectiveness, defendant liability, and punitive damages.

Because an additional 1,300 asbestos cases were filed during the Consolidation I period, a second consolidated trial was initiated in 1994 to resolve the influx of new lawsuits, which mirrored the first consolidation attempt.

Together, the two consolidation attempts lasted well into 1995, but didn't stem the flow of heavy case filings to the present day. The court has attempted subsequent innovative efforts to reform the docket, "but despite these efforts, and as evidenced by the instant matter, the past consolidation procedures have failed to produce permanent resolution."

"Accordingly, based on the information provided in movants' and respondents' briefs, the December 17, 2012 hearing, and consideration of past attempts at consolidation in this court, we have not been convinced that a fresh round of consolidation will, more likely than not, result in a more equitable or more efficient asbestos docket," he wrote.

In his analysis of the consolidation proposal, Glynn wrote that this court has "little faith that the ill-defined proposal of the movants would improve the operation of the asbestos docket."

Arguing the court must decide the matter or facts rather than faith, Glynn said he cannot rely on the plaintiffs' "baseless" assurances that consolidation is the best method.

"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. "Furthermore, should this court go blindly down the path to which plaintiffs point, we would be burdened with years and years of minitrials of unknown scope and viability."

For starters, Glynn said the court needs a detailed proposal rather than relying on speculations as to how a consolidation would unfold or succeed.

"The inadequate amount of information provided and the substantial questions left unanswered not only makes it difficult for this court to accept the proposal, but challenging to even imagine how it might work should it be embarked upon. We cannot accept a scheme to revamp an entire docket without first having studied a detailed analysis of how this system would operate," Glynn wrote.

He added that any reforms must increase the efficiency and fairness of the asbestos docket.

"In other words, either this court undertakes potentially one of the largest multiparty trials ever constructed in the state or movants effectively become a gatekeeper to having an asbestos claim resolved in this court," Glynn said. "Of course neither of these outcomes would work towards a more equitable docket for all parties."

Because the asbestos docket is composed of an Active Trial Docket and an Inactive Docket, not all of the cases are even ready for trial, which would cause an even heavier burden on the court if consolidation were to commence, he wrote.

Glynn expressed uncertainty that all the time and effort to carry out a third consolidation would even be worth it in the end.

"[U]ltimately, if Consolidation I and Consolidation II are any guide, the asbestos docket will ultimately fill up again with additional case filings," Glynn wrote.

Glynn also stated that if the consolidation attempt were to lead to settlements and conclusions, mass settlements could then breed forum shopping, increasing the number of filings.

"The argument goes, in effect, consolidation encourages additional filings by making it more attractive to file a claim in a particular jurisdiction," Glynn wrote. "This court cannot look with favor on adopting a practice that encourages the filing of cases simply because it is the location where a claimant are likely to obtain a prompt resolution of a matter."

"This court should expect the best but must plan for the worst," he added.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com