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Asbestos-related lawsuits filed by claimants who are not sick have occupied the courts in Michigan and across the nation for years. Nationally, up to 90% of recent asbestos-related lawsuits have been filed by people who have no present impairment and may never become sick from asbestos exposure. These filings are consuming resources that are also needed to compensate cancer victims and have pushed an estimated eighty-five companies into bankruptcy. As the longtime manager of the federal asbestos multi-district litigation docket explained, “Only a very small percentage of the cases filed have serious asbestos-related afflictions, but they are prone to be lost in the shuffle” with other claimants who are not sick.1 In an effort to address this, the Michigan Supreme Court issued an administrative order on August 9, 2006 that immediately outlawed the “bundling” of asbestos cases for settlement or trial.2 The court’s order will eliminate some of the noninjury cases historically filed in Michigan.

In the past, some courts allowed—even encouraged—the consolidation of asbestos cases at trial because the judges thought that joining dissimilar cases could resolve the litigation more quickly. Sick plaintiffs were used to “leverage” settlements for the non-sick. Several years ago, former Michigan Supreme Court Chief Justice Conrad L. Mallett, Jr. described how trial judges inundated with asbestos claims might feel compelled to adopt such procedural shortcuts:

Think about a county circuit judge who has dropped on her 5,000 cases all at the same time . . . . [I]f she scheduled all 5,000 cases for one week trials, she would not complete her task until the year 2095. The judge’s first thought then is, “How do I handle these cases quickly and efficiently?” The judge does not purposely ignore fairness and truth, but the demands of the system require speed and dictate case consolidation even where the rules may not allow joinder.3

Now, however, there is a better understanding that bending procedural rules to put pressure on defendants to settle cases does not make cases go away; the practice invites new filings. As Duke Law School Professor Francis McGovern has explained, “[j]udges who move large numbers of highly elastic mass torts through their litigation process at low transaction costs create the opportunity for new filings. . . . If you build a superhighway, there will be a traffic jam.”4 One West Virginia trial judge involved in that state’s asbestos litigation acknowledged that, “we thought [a mass trial] was probably going to put an end to asbestos, or at least knock a big hole in it. What I didn’t consider was that that was a form of advertising. . . . [I]t drew more cases.”5 Some also believe that consolidations raise serious due process issues because defendants lack a meaningful opportunity to defend against individual claims.

The Michigan order is the latest sign that judges are taking a fresh look at this practice. Courts are beginning to believe that, in addition to fundamental fairness and due process problems, consolidating cases to force defendants to settle is a bit like using a lawn mower to cut down weeds in a garden—the practice may provide a temporary fix to a clogged docket, but ultimately the approach is likely to create more problems than it solves. Recently, the Mississippi Supreme Court has severed several multi-plaintiff asbestos-related cases. In one of the cases,6 the court called the joinder of 264 plaintiffs who alleged asbestos exposure over a seventy-five year period to products associated with 137 defendants a “perversion of the judicial system. . . .” In July 2005, the Ohio Supreme Court amended the Ohio Rules of Civil Procedure to preclude the joinder of pending asbestos-related actions. In 2005 and 2006, Georgia, Kansas, and Texas enacted laws that generally preclude the joinder of asbestos cases at trial.

The Michigan Supreme Court’s order, a 4-3 decision, comes after three years of study as to how to respond to asbestos litigation problems in that state. In August 2003, the court was petitioned by scores of defendant companies and numerous amici seeking the adoption of a statewide inactive asbestos docket to prioritize cases for trial utilizing objective medical criteria. Some have argued that the court should give additional consideration to this proposal in addition to its anti-bundling order. Although, many see the new order as a step in the right direction.

The Staff Comment to the new order notes that the purpose of bundling was “to maximize the number of cases settled.” The order further explains, “Bundling can result in seriously ill plaintiffs receiving less for their claim in settlement than they might otherwise have received in their case was not joined with another case or other cases.”

In his concurring opinion, Justice Markman also said that the order would “advance the interests of the most seriously ill plaintiffs whose interests have not always been well served by the present system.” Chief Justice Taylor and Justices Corrigan and Young joined in the concurrence.

Justices Cavanagh, Weaver, and Kelly dissented. Their main complaint was that the new order will clog the court system since each asbestos case must now be tried individually. The argument is that bundling is necessary for court efficiency. The Michigan Supreme Court has invited public comment on the new order until December 1. If the new rule remains intact, and is effective, Michigan may well see fewer cases by persons whose claims are either premature (because the individual is not sick) or actually meritless(because the person will never develop an asbestos-related impairment).

*Mark A. Behrens is a partner in the Washington, D.C.-based Public Policy Group of Shook, Hardy & Bacon L.L.P.

 

Endnotes

1 In re Asbestos Prods. Liab. Litig. (No. VI), 1996 WL 539589, *1 (E.D. Pa. Sept. 16, 1996) (Weiner, J.).

2 See Admin. Order No. 2006-6, Prohibition on “Bundling” Cases (Mich. Aug. 9, 2006), available at 2006 WLNR 14601437.

3 The Fairness in Asbestos Compensation Act of 1999: Hearings on H.R. 1283 Before the House Comm. on the Judiciary, 106th Cong. 6 (1999) (statement of the Hon. Conrad L. Mallett, Jr.).

4 Francis E. McGovern, The Defensive Use of Federal Class Actions in Mass Torts, 39 Ariz. L. Rev. 595, 606 (1997).

5 In re Asbestos Litig., Civ. Action No. 00-Misc.-222 (Cir. Ct. Kanawha County, W. Va. Nov. 8, 2000) (statement of Judge A. Andrew MacQueen.

6 Harold’s Auto Parts v. Mangialardi, 889 So. 2d 493, 495 , 495 (Miss. 2004).

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