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California judge accuses asbestos firms of playing 'grisly games'

By Aricka Flowers | May 5, 2009

John Sullivan, CJAC President

Judge Aurelio Munoz

Attorneys across the country are erecting satellite offices in California - and not just because the weather's good in the Golden State.

Plaintiff attorneys from states like Texas are filing claims at home and then, after some maneuvering, dismissing the cases and re-filing them in a state court that is much friendlier when it comes to their target: asbestos defendants.

Recently, though, a California judge took an asbestos firm to task for its "games."

In an April ruling on a Texas asbestos case that was moved to Los Angeles Superior Court, Judge Aurelio Munoz "reluctantly" ruled in favor of the plaintiff. He denied defendants' motion to exclude or preclude the deceased plaintiff's deposition testimony, which had been taken in Texas where the case originated.

In Texas, depositions are time-limited, and if a plaintiff cannot name a defendant's asbestos product, a defendant has grounds for summary judgment.

"This court does not have the authority to summarily prohibit the use of otherwise admissible testimony even if the court does not approve of the games, and they are games, that are being played," Munoz wrote.

The plaintiff was represented by Waters, Kraus & Paul, LLC, a Texas litigation firm that has a California office that specializes in asbestos litigation.

"Plaintiff's law firm, which is a multi-state firm, has, in at least nine other cases, filed cases in Texas which were then dismissed after the plaintiffs' deposition had been taken," Munoz wrote.

"The reason for this procedure is apparently because under Texas law the deposition is severely limited to six hours per side. Additionally, under Texas law the failure to mention the defendant's product is a basis for summary judgment. The law in this state is to the contrary."

In his ruling Judge Munoz also wrote, "It is the court's opinion that the filing of the Texas action was deliberately done to prevent the defendants from having adequate discovery and to prevent the filing of motions for summary judgment because of the California rule requiring specific questions about product identification.

"In short this is a grisly game of asbestos litigation that appears in the courts. The court is of the opinion that it cannot grant the relief requested, but perhaps an appellate court can."

Officials from organizations like the Civil Justice Association of California (CJAC) say something needs to be done about the abuse of the California courts in asbestos litigation.

"We certainly need to change our rules to prevent our courts and juries from being taken advantage of by tricky game playing from one state to the other," said John Sullivan, CJAC President. "As Judge Munoz points out, this is not the first time that this firm has used the tactic and it certainly is one that is manipulating Texas' rules for discovery against California's rules."

Another asbestos expert said Judge Munoz could have tripped up the plaintiff attorneys' plans.

"I think the judge did have the authority to prohibit the use of any deposition where the defendant did not have a full opportunity to cross examine the plaintiff," said Lester Brickman, law professor at the Benjamin N. Cardozo School of Law of Yeshiva University in New York and expert on mass torts.

"In other words, if there were defendants in the litigation in Texas that did not have a full opportunity to question the plaintiffs in that deposition, then the judge does have the authority to prohibit the use of any of that information."

In his order, Munoz called on the appellate court to address the problem of state-hopping in asbestos cases, but some are calling for legislative action.

Sullivan hopes lawmakers will step in and stop the newly-popular practice in asbestos litigation.

"This problem is new enough that I don't know if this can be changed by a court ruling," he said. "We hope that it can be or that legislation can help, but our legislators are very tilted towards the plaintiffs bar. It's very difficult to even get common sense changes through the California legislature; even when people understand that the situation is unfair. If something is benefiting the trial lawyers, then, usually, the legislature will not change it."

Brickman agrees that legislative action is unrealistic. Instead, he thinks Federal Rule 11 could help quell some of the reported abuse of California courts when it comes to asbestos cases. Federal Rule of Civil Procedures 11 allows district courts to sanction parties or attorneys that submit pleadings with no evidentiary proof or frivolous arguments.

"The legislative solution is probably unlikely because the trial lawyers basically control the California legislature," Brickman said.

"Something more draconian should be devised," he said. "For example, California's law equivalent of Rule 11 could help. If the costs incurred by the defendant for a frivolous asbestos lawsuit were paid by the plaintiff's lawyers, it could quickly become a solution; and it is well within the court's power to do."

Meanwhile, the Civil Justice Association of California has plans to help bring about change in the state when it comes to asbestos lawsuits.

"We're helping a number of different groups work on a project involving asbestos litigation rules," said Sullivan.

"Our courts have begun looking at what could be done about this. Even still, the courts also have to deal with the stress of the state's budget, like empty judge positions and criminal case loads that demand first treatment in the courts," he said.

"If things continue on this track, civil cases will be harder and harder to bring, especially complex cases. We're all hoping that the courts can come up with a number of ways to better handle litigation; and one of those ways is to remove the overhead of litigation involving asbestos."

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