ANNAPOLIS, Md. (Legal Newsline) - Asbestos attorneys from the main firm in one of the largest – but apparently not busiest – special dockets in the country told Maryland lawmakers on Tuesday of their plan to push their dormant cases through the system to eliminate a backlog of nearly 30,000 lawsuits.
But opposing testimony questioned the practices of the Law Offices of Peter Angelos, arguing it hasn’t taken advantage of open trial slots in the past and, through a request to consolidate cases, is only hoping to group weak claims in with stronger ones.
That’s the gist of testimony presented to the Senate Judicial Proceedings Committee at a two-hour hearing during which the plaintiffs bar asked for action on the part of legislators, while defense attorneys requested a wait-and-see approach with new court procedures designed to reduce the amount of lawsuits that sit in Baltimore City Circuit Court.
“The program should be given a chance to succeed,” said Ted Roberts, an attorney at Venable LLP who testified on behalf of the Wallace & Gale Asbestos Settlement Trust. “It should have legislative support.”
That program has targeted 60 random lawsuits for further inspection in November. Roberts testified that plaintiffs attorneys have not responded to request for information on 21 of those and that another 12 have no evidence, prompting motions for summary judgment from the defendants.
If those 33 cases are dismissed – a figure representing 55 percent of the original 60 – Roberts feels that could be a trend that would continue over the remaining 29,000 lawsuits. Other technically open lawsuits are actually closed, and almost 3,000 of them have been or soon will be cleared, he said.
“For the first time in decades, the court’s new program is closing more cases than are being filed,” he said.
Baltimore’s asbestos court places lawsuits on one of two dockets – active or inactive. In the 1990s, two phases of consolidation created mass trials.
But the Angelos firm’s request for a new round of consolidation was rejected in March 2014 by Judge John Glynn, who wrote it would be a waste of court resources to “charge headlong into consolidation.”
Glynn ruled that the Angelos firm’s request lacked specifics.
“It is not clear how many cases would ultimately be included in the consolidation,” he wrote. “One thing that is assured is that a third attempt at consolidation would impose substantial burdens on this court.”
Instead, a new case management plan was implemented. It includes a selection of cases for examination, the dismissal of cases lacking "demonstrable viability" and an enhancement of alternative dispute resolution requirements.
Angelos attorney Armand Volta, though, says a coming motion for consolidation addresses Glynn’s concerns and, as opposed to the last motion, has the support of all plaintiffs firms practicing regularly in Baltimore.
The plan would group some 6,000 steelworkers into one trial, while shipyard workers would create another group. After that, plaintiffs would similarly be grouped by other occupations.
This plan would “resolve thousands of cases at a time instead of hundreds,” he said.
Currently, plaintiffs attorneys submit their cases for open trial slots based on the disease. Having a lawsuit scheduled for trial often leads to a faster resolution than if no trial date is set.
Last year, 168 lawsuits scheduled for trial were resolved without one, while five were tried and another 55 were continued by plaintiffs attorneys.
This year, 167 have been resolved, four have gone through trial and 11 have been continued.
Judge W. Michel Pierson, the court’s administrative judge since 2013, says open trial slots are not being filled for diseases other than mesothelioma, the most serious of asbestos-caused illnesses. To plaintiffs attorneys, meso claims are far more valuable than other types of diseases, like asbestosis.
“It’s a little hard to ascertain exactly what the backlog is because there’s no doubt a large inventory of cases in Baltimore City and no doubt those cases have been pending for a number of years without being put to trial for whatever reason,” Pierson said.
“But it’s also the case that we continue to get cases filed on a yearly basis of 500-600 a year – being filed in our court even though the plaintiffs don’t live in Baltimore City. There seems to be a contention that our docket is the docket to file these cases.”
Once filed, though, is when the trouble starts. Roberts says the Angelos firm, which represents the vast majority of plaintiffs, only proactively fills trial slots with its meso claims. The firm has missed out on 2,888 available trial opportunities since 2008 for asbestosis and other lung cancer claims, he said.
“This has been a practice of the Angelos firm for some time now,” he said.
Committee chair Bobby Zirkin, who threw out the first pitch on Opening Day 2016 for Angelos’ Baltimore Orioles, saw a problem with Roberts’ claim that more cases are being disposed of than filed.
Of the 2,900 that have already been disposed of, roughly 2,400 were already litigated but not officially closed. In the time it has taken to conclude the other 491 cases, the Angelos firm has filed more than 1,500.
Other issues facing the court include:
-How many plaintiffs are actually sick? Some filed after exposure but before an illness manifested itself to avoid statute-of-limitations problems;
-Are there enough judges? Volta and the Angelos firm would like to see more assigned, especially if consolidation isn’t approved, but Pierson said outside help hasn’t been needed yet;
-Why is Baltimore chosen for plaintiffs who don’t live there if there is such a large backlog? It had the second-most cases filed in 2016 of any court, ranking only behind Madison County, Ill., a longtime destination for asbestos lawsuits from out-of-state plaintiffs; and
-How should the court handle a statute of repose that, per a recent court decision, bars plaintiffs from bringing older claims even though the latency period for asbestos-related disease is decades-long?
In the coming legislative session, which starts in January, the Angelos firm will ask lawmakers to clarify existing law regarding the statute of repose and its 20-year deadline.
It will do so after the plaintiffs bar was dealt an adverse verdict by the Court of Special Appeals in Duffy v. CBS Corp., which barred claims brought on behalf of the late James Piper because they were filed more than 20 years after a turbine generator that allegedly helped to cause his mesothelioma was installed.
Though permitting claims more than 20 years old won’t lead to an influx of new cases, Angelos attorney James Garland said, it would help 25,000 claimants pursue their existing claims.
Phil Goldberg – of Shook, Hardy & Bacon – testified on behalf of the U.S. Chamber Institute for Legal Reform. The ILR owns Legal Newsline.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.