ANNAPOLIS, Md. (Legal Newsline) - The ostensible purpose of a Maryland Senate hearing last month was to discuss solutions to the stubborn backlog of more than 30,000 asbestos lawsuits in the Baltimore courts. But plaintiff lawyers spent more time asking for a legislative fix to a single legal decision that could eliminate thousands of those lawsuits from the docket at once.
On Dec. 1, the Maryland Court of Appeals, the state’s highest court, is scheduled to hear an appeal of Duffy v. CBS, a 2015 decision that applied Maryland’s 20-year statute of repose to an asbestos lawsuit. If the decision is upheld, thousands of plaintiffs claiming they were injured by breathing asbestos dust before 1970 will have their cases dismissed.
Most of those plaintiffs are represented by the law firm of Baltimore Orioles owner Peter Angelos, who controls more than 17,000 of the 30,977 asbestos lawsuits pending in Baltimore courts. Lawyers with the Angelos firm say every one of their cases is viable, but there is no feasible way to try each one in front of a judge. At last month’s hearing before the Maryland Senate’s Judicial Proceedings Committee, Angelos attorney Armand J. Volta argued for a massive consolidation of those lawsuits – a tactic Baltimore has tried twice before – to goad defendant companies into settling.
“It’s been shown that when these cases are consolidated the parties themselves get together and usually work out resolutions,” Volta told the Senate committee, which was chaired by Bobby Zirkin, who threw out the first pitch on Opening Day 2016 for Angelos’ baseball team. Failing that, Volta said, the legislature should hire more judges so the firm’s thousands of cases can be teed up for trial.
“Firm trial dates create resolutions,” Volta said. Defendants, he said, will only enter settlement negotiations “at the trial door.”
Volta declined to comment to Legal Newsline on the backlog or the law firm’s strategy. But one reason plaintiff lawyers might be pushing so hard for consolidation in Maryland is they are worried they’ll lose in Duffy. With tens of thousands of lawsuits pending in Maryland courts, those lawyers possess a powerful bargaining chip to spur settlement negotiations with companies that otherwise would be content to let the trial process play out slowly.
The big question hanging over last month’s hearing was whether that backlog even exists, however. Venable Partner Ted Roberts, testifying for the Wallace & Gale Asbestos Settlement Trust, said the courts should focus on weeding out dubious cases and pushing plaintiff lawyers to set the remaining ones for trial. Angelos lawyers have failed to take advantage of 2,088 trial dates in the supposedly overwhelmed Baltimore court system since 2008, Roberts said, while adding 4,500 new lawsuits to the docket over that same period.
More than 7,600 cases are plaintiffs suing new defendants over injuries for which they’ve already been compensated, it was argued.
“This docket isn’t 20,000 plaintiffs who have not been compensated,” said Roberts, who declined to comment to Legal Newsline beyond his public statements at the hearing. Many of them are “coming around a second time for further compensation.”
There’s also no reason all 30,000 cases need to be heard in Baltimore, Roberts said. If they were truly worried about getting to trial quickly, Maryland residents could sue in other state courts with less crowded dockets, he said.
“There is nothing that requires a plaintiff to file a claim in Baltimore City,” he said. “Plaintiffs have chosen to file all their claims in Baltimore City and not set them for trial.”
Defendant companies argued for an expedited system for examining case files to see if they have enough supporting evidence to go to trial. In addition to plaintiffs who have already sued and settled asbestos claims, defendants suspect thousands of cases lack medical evidence, work histories and lists of witnesses who can testify the plaintiff handled or worked around the defendant company’s products.
In a 2013 court filing, Union Carbide accused the Angelos firm of making heavy use of a few disputed medical experts, including Orioles team physician Dr. William Goldiner, who in 1995 diagnosed 1,157 people with asbestos diseases - including 77 on a single day.
That filing emerged as Union Carbide and other defendants opposed Angelos’ proposal to consolidate 11,000 asbestos lawsuits in the Baltimore courts to be tried together.
Angelos made his fortune on two previous rounds of consolidation in the early 1990s, in which more than 8,000 cases were combined into a single trial against multiple defendants to determine basic questions of liability. The consolidation program spurred thousands of settlements as well as numerous bankruptcies but failed to trim the docket as Angelos and other firms added new cases nearly as quickly as they were settled. Many went to the so-called “inactive” docket, essentially placeholder lawsuits by people who believe they were exposed to asbestos but have no symptoms of disease.
Defendant companies protested that the consolidation scheme violated their due process rights, but the Maryland Court of Special Appeals rejected those arguments. After two rounds, however, the Baltimore courts halted consolidations.
Angelos tried to revive the scheme in 2012, but in a 2014 opinion, Judge John Glynn rejected it. He said plaintiff lawyers wanted him to accept consolidation “on faith rather than facts,” relying on “baseless assurances that this proposed consolidation will drive mass settlements and not require massive resources.”
“This court has little faith that the ill-defined proposal of the movants would improve the operation of the asbestos docket,” Glynn wrote.
The current plan in Baltimore is to try cases in groups; six at a time for mesothelioma, a cancer associated with asbestos exposure, and 10 at a time for lung cancer and asbestosis. At the same time, judges have required plaintiff lawyers to present evidence at status conferences during which batches of cases are either set for trial or relegated to the inactive docket. That process is intended to trim the number of cases that can be set for trial because at 500 cases a year, it would take 39 years to eliminate the backlog.
Volta, at the Senate hearing, complained that plaintiff lawyers are being asked to supply an onerous amount of information including medical records, lists of witnesses and products their client was exposed to before moving on to a trial date. Lawyers are also ordered to provide documentation showing their clients still approve of the lawsuits filed in their names.
“This is something we believe is unheard of in tort litigation,” Volta said. But the plan is actually modeled on a similar weeding-out process ordered by U.S. District Judge Eduardo C. Robreno in Pennsylvania, who oversaw national multidistrict litigation of federal asbestos lawsuits. Robreno rejected aggregation and consolidation in favor of a case management plan that required asbestos plaintiffs to supply medical reports and exposure histories or have their cases dismissed. Between 2008 and 2013, the court reduced the backlog by 183,545 cases in the MDL to less than 3,000.
At the same time as lawyers for Angelos and other asbestos firms debate how to reduce the backlog of cases in Baltimore, Duffy v. Westinghouse threatens to remove a large swath of those cases entirely. In a 2016 decision, an intermediate appeals court in Maryland held that Section 5-108 imposed a 20-year statute of repose on a lawsuit alleging exposure to asbestos installed on a Westinghouse turbine in 1970 (Westinghouse was later purchased by CBS).
The statute of repose was intended limit liability for injuries resulting from a defective or unsafe condition in an “improvement to real property” made more than 20 years earlier.
Plaintiff lawyers argued dust arising from the installation of asbestos insulation isn’t an “improvement,” and indeed Maryland lawmakers passed an amendment to the law in 1991 specifically eliminating protection for asbestos manufacturers. But the appeals court ruled it would violate the state Constitution to retroactively strip defendants of protection they possessed prior to 1991, meaning the statute of repose still applies to exposures before the original law was passed in 1970.
That could endanger as many as 25,000 cases, Volta told lawmakers at the hearing in October, plus another 25,000 claims by spouses and other family members. He proposed a “clarification bill” that would state asbestos is not an improvement to real property, without explaining how that would get around the constitutional objections to retroactively assigning liability to asbestos companies.
As one of the biggest lobbying spenders in Maryland, the Angelos firm certainly has the clout to get legislative attention to this issue. In the meantime, it continues to add asbestos lawsuits to the Baltimore docket in hopes of another round of mass settlements. Whether Maryland’s highest court makes its own contribution to trimming that docket remains to be seen.