By Lisa Rickard, President, U.S. Chamber Institute for Legal Reform
Originally appeared in Mealey’s Litigation Report on February 19, 2014
The Circuit Court for Baltimore City has long been a major forum for asbestos litigation because of exposures that occurred over many decades to large numbers of workers employed in the City’s substantial manufacturing and transportation industries.
Baltimore trial judges and the Maryland Court of Appeals, the state’s highest court, have done some things right. Historically, the flood of claims into the Baltimore City Circuit Court led the judiciary to adopt progressive approaches to the litigation that have served as a model elsewhere. For instance, Baltimore City was one of the first jurisdictions in the country to adopt an inactive asbestos docket to set aside claims filed by the unimpaired. The circuit court was also one of the first jurisdictions to stay punitive damages claims in asbestos cases so that windfall awards by earlier-filing claimants would not deplete defendant resources and jeopardize recoveries for later-filing claimants. The Maryland Court of Appeals, the state’s highest court, was a pioneering court with respect to the exclusion of de minimus exposure claims.
On the other hand, Baltimore has appeared on recent Judicial Hellhole andWatch Lists. AMarch 2013 Wall Street Journal report that studied claims filed with the Manville Trust found discrepancies between the exposure history provided to the Trust by at least one Baltimore asbestos claimant and the plaintiff’s deposition testimony in a civil case. An April 2013 Wall Street Journal editorial reported that defendants had uncovered more than 1,500 duplicate cases on the Baltimore City asbestos docket and suspicious claiming practices with respect to the remaining 11,383 plaintiffs. Maryland’s tort liability climate ranked thirty-third in a 2012 State Liability Systems Ranking Study that was conducted for the U.S. Chamber Institute for Legal Reform to explore how fair and reasonable the states’ tort liability systems are perceived to be by U.S. businesses.
This article will briefly explore some key developments in Maryland asbestos litigation in 2013. These include a sound ruling by the Maryland Court of Appeals in a household asbestos exposure claim and a missed opportunity to align Maryland’s treatment of low dose asbestos exposures with current science. Looking ahead, there are areas where Improvements are needed, especially to discourage gamesmanship with respect to defendants’ discovery of asbestos bankruptcy trust claim filings. The article also comments on an unresolved proposal by the Law Offices of Peter G. Angelos to consolidate certain cases for trial; the article opposes the plan.
Household Exposure Claim Rejected
In Georgia-Pacific, LLC v. Farrar, the Maryland Court of Appeals properly held that a manufacturer owed no duty to warn a plaintiff of the dangers of household exposure to asbestos.
The court explained that the element of ‘‘duty’’ in tort law, ‘‘especially foreseeability of danger and the ability, through a warning to ameliorate that danger, must be based on facts that were known or should have been known to the defendant at the time the warning should have been given, not what was learned later.’’ The court said that while the dangers of occupational exposures to asbestos were known for a long time, the danger from take home exposures ‘‘was notmade publicly clear until much later.’’ ‘‘The clear and most widely broadcast breakthrough came in June 1972, when OSHA adopted regulations dealing specifically with the problem of tracking asbestos dust on clothing into the home.’’ The plaintiff alleged exposures to the defendant’s product from her grandfather’s clothes several years earlier, in 1968-69.
The court also expressed serious doubt as to whether the duty sought by plaintiff could have been implemented, stating that in the era before social media and the Internet, ‘‘it is not at all clear how the hundreds or thousands of manufacturers and suppliers of products containing asbestos could have directly warned household members who had no connection with the product, the manufacturer or supplier of the product, the worker’s employer, or the owner of the premises where the asbestos product was being used, not to have contact with dusty work clothes of household members who were occupationally exposed to asbestos.’’ The court also said that that even if such information could have been disseminated, ‘‘there was no practical way that any warning given by [the defendant] to any of the suggested intermediaries would or could have avoided the danger.’’ The court concluded that imposing liability under these situations ‘‘would be poor public policy indeed.’’
Low Dose Opportunity Missed
The Maryland Court of Appeals in Dixon v. Ford Motor Co. considered the admissibility of an opinion by a plaintiffs’ causation expert that each exposure to asbestos may be deemed a contributing cause of mesothelioma. This is the any exposure theory of causation; it is the path for asbestos plaintiffs’ lawyers to sue low dose defendants. The court held that the trial court did not abuse its discretion in admitting the testimony in this case.
In Dixon, family members of a woman who passed away from mesothelioma sued Ford Motor alleging that take home exposure to asbestos dust created by her husband’s occupational work with and around Ford brakes ‘‘well beyond 1972’’ was a contributing cause of the woman’s death. Ford sought to exclude plaintiffs’ proposed causation testimony under Frye/Reed, asserting that there is no reliable epidemiological evidence that exposure to automotive friction products, such as brakes, causes mesothelioma and that, indeed, the evidence is that such exposure does not cause mesothelioma.
The court in Dixon said that more than twenty years ago in Eagle-Picher Industries, Inc. v. Balbos the court had ‘‘flatly rejected the assertion that mesothelioma cannot be caused by exposure to chrysotile asbestos.’’ According to the court, the view of plaintiffs’ expert Dr.LauraWelsh that exposure to chrysotile in Ford brakes may cause mesothelioma is ‘‘not a novel scientific principle,’’ so a Frye/Reed analysis did not apply. The court also noted that in 2011 in Scapa v. Saville, the court applied the Balbos/Lohrmann ‘‘frequency, regulatory, and proximity’’ test as the rule in Maryland.
The court then found that the take home exposures by Ms. Dixon were at least on par with those the court found sufficient in Scapa (the court estimated that Mr. Dixon brought home asbestos dust on his clothes on more than 1,000 days). ‘‘With that background and context,’’ the court said, Dr. Welsh’s opinion was not novel, noting that her ‘‘opinion was not in the context of one or two incidental exposures to Ford brakes.’’ In discussing the decisions of other courts, such as the Pennsylvania Supreme Court, that have rejected ‘‘any exposure’’ testimony, theMaryland court said that such testimony, ‘‘if offered in a case of truly minimal exposure to the defendant’s product, may well raise concerns that would need to be tested under Frye/Reed,’’ but ‘‘that is not what is before us here.’’
The court’s adherence to the Balbos/Lohrmann ‘‘frequency, regulatory, and proximity’’ test means that the Dixon opinion cannot be viewed as a complete endorsement of ‘‘any exposure’’ testimony. To the contrary, the Balbos/Lohrmann test reflects that there are, in fact, exposures that are too remote or infrequent to be deemed causative of disease.
Unfortunately, however, the Dixon court was too willing to simply follow a twenty-year old rule and did not closely scrutinize the science that has evolved. Plaintiffs’ lawyers may spin this case as endorsing lax causation standards but it is more about staying the course and not adopting heightened standards based on a reevaluation of the evolving science.
Greater Transparency Needed
Nationally, the interface between the tort and trust systems is the primary focus of policy debates concerning asbestos litigation. Companies that played a significant role in causing many claimants’ asbestos-related injuries have entered bankruptcy and channeled their asbestos liabilities personal injury compensation trust funds. Over sixty trusts have been established to collectively form a $36.8 billion privately-funded asbestos personal injury compensation system that operates parallel to, but wholly independent of, the civil tort system.
Greater transparency between the tort and trusts systems is needed to reduce gamesmanship and eliminate incentives that presently exist for claimants to take inconsistent or conflicting positions across trust filings and in civil tort claims. In an early example, Kananian v. Lorillard Tobacco Co., a Cleveland judge barred a California-based asbestos plaintiffs’ law firm and one of its lawyers from appearing in his court ‘‘due to their alleged dishonesty in litigating a mesothelioma case.’’ Numerous other examples of trust submission abuses have been documented in forums such as the U.S. House Judiciary Committee and a Task Force on Asbestos Litigation and Bankruptcy Trusts of the American Bar Association’s Tort Trial and Insurance Practice Section that held hearings in 2013.
Most recently, in a very significant ruling that is achieving nationwide notoriety, the North Carolina federal bankruptcy judge overseeing Garlock Sealing Technologies, LLC’s bankruptcy found a ‘‘starting pattern of misrepresentation’’ with respect to exposure evidence by plaintiffs and their lawyers. U.S. Bankruptcy Judge George Hodges said that Garlock ‘‘presented substantial evidence’’ of the withholding of evidence of alternative exposures. For instance, the judge wrote, ‘‘It was a regular practice by many plaintiffs’ firms to delay filing [t]rust claims for their clients so that remaining tort system defendants would not have that information.’’ The judge also said that:
In 15 settled cases, the court permitted Garlock to have full discovery. Garlock demonstrated that exposure evidence was withheld in each and every one of them. These were cases that Garlock had settled for large sums. The discovery in this proceeding showed what had been withheld in the tort cases—on average plaintiffs disclosed only about 2 exposures to bankruptcy companies’ products, but after settling with Garlock made claims against about 19 such companies’ Trusts.
Opponents of transparency may argue that a sample of fifteen cases from thousands resolved by Garlock is too small to draw broad conclusions, but Judge Hodges dealt with this in his opinion. He said, ‘‘the fact that each and every one of them contains such demonstrable misrepresentation is surprising and persuasive.’’ ‘‘It appears certain,’’ the judge concluded, ‘‘that more extensive discovery would show more extensive abuse.’’ Judge Hodges also noted the practical implications of these abuses – in cases where Garlock had trust claim information and was able to use it at trial, Garlock won in three such trials and was assigned only a two-percent share in another.
Maryland cases further illustrate the unfair advantages that discovery gamesmanship gives plaintiffs in asbestos litigation. For instance, in Warfield v. AC&S, Inc., defendants aggressively pursued discovery of asbestos bankruptcy trust claims and were forced to file motions to compel, despite the fact that prior rulings made it clear that trust claims material must be produced. ‘‘At a hearing on the matter, plaintiff’s counsel explained that he had been slow in producing the trust materials because he disagreed with the court’s prior ruling, some two years previously, and went on to complain that the court had ‘opened Pandora’s Box’ by requiring their disclosure.’’ When production was finally made, on the eve of trial, the ‘‘reasons for counsel’s reluctance to produce the trust materials were made clear. There were substantial and inexplicable discrepancies between the positions taken in [c]ourt and the trust claims.’’
In another Maryland case, ‘‘Edwards [v. John Crane-Houdaille, Inc.], the plaintiff had, prior to trial, failed to disclose whether or not he had filed any claims with bankruptcy trusts. In addition, as trial drew near, plaintiff amended his discovery responses to assert that the only asbestos-containing material to which he had been exposed was that of the only remaining solvent defendant.’’ Two weeks prior to trial, however, the plaintiff produced claims materials relating to sixteen trusts. ‘‘Again, there was a clear inconsistency in the alleged exposure. Significantly, most of the trust forms had been filed in 2008, before the initial discovery responses.’’
Maryland’s courts should take steps to ensure that asbestos litigation in the state is free from the discovery gamesmanship and abuse identified by Judge Hodges. Trial courts, in particular, should be vigilant and take appropriate action to deter and sanction efforts to withhold relevant exposure evidence.
No Mass Trial Consolidations
Early in the asbestos litigation some well-intentioned courts chose to consolidate mass numbers of asbestos cases to try to resolve the litigation more efficiently. It backfired. The judiciary learned that ‘‘in addition to fundamental fairness and due process problems, consolidating cases to force defendants to settle is 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 fuel the filing of more claims.’’
This happened in Baltimore. In ACandS, Inc. v Godwin (‘‘Consolidation I’’), the Circuit Court for Baltimore City consolidated 8,555 asbestos personal injury and wrongful death cases from around the state that were filed on or before October 1, 1990. The Consolidation I trial required six months and ended in August 1992. After Consolidation I, asbestos cases continued to pour into Baltimore. Within three years of the Consolidation I cut-off date, plaintiffs’ lawyers had filed approximately 1,300 additional cases. ACandS, Inc. v. Abate (‘‘Consolidation II’’) included these additional cases (with a cut-off date of October 1, 1993) and all derivative cross, third-party and indemnification claims outstanding from the original 8,555 plaintiffs. Consolidation II resulted in a complex, nine month trial and a plaintiff verdict. After this lengthy litigation, the Baltimore City Circuit Court still needed to dispose of over 8,000 mini-trials against the remaining defendants. Despite some settlements, approximately 10,000 open asbestos claims remained on the Court’s docket.
Fast forward roughly twenty years. In June of 2012, the Angelos firm asked the Circuit Court for Baltimore City to consolidate a ‘‘backlog’’ of over 13,000 non-mesothelioma cases on the court’s docket. The request ignored the experience of judges in Baltimore and nationally; it also ran decidedly against a trend rejecting consolidated asbestos trials. For instance, in February 2012, the Philadelphia Court of Common Pleas’ Complex Litigation Center (CLC) made dramatic changes to its protocol governing mass tort cases, including a significant limit on asbestos trial consolidations absent the agreement of all parties.
With respect to the June 2012 proposed trial grouping, the Wall Street Journal reported:
[M]ore than 1,500 claimants were duplicates. Of the remaining 11,383 plaintiffs, nearly 70% had been diagnosed by one or more of the same five doctors. One of the physicians, William Goldiner, diagnosed nearly 50% of the plaintiffs, 77 in one day. When not outputting claims for the tort bar, Dr. Goldiner works as a team doctor for the Baltimore Orioles, which are owned by Peter Angelos. Another doctor, Joseph Kligman, is a former partner of Dr. Goldiner. The other three doctors either prepared reports at Dr. Goldiner’s request or relied on his exams.
The Angelos firm subsequently withdrew its consolidation motion and, instead, requested a smaller consolidation of about 4,600 cancer claims in June of 2013. Defendants believe that even the smaller plain remains unfair and have uniformly raised strong objections.
The historic failure of trial consolidations as a way to resolve asbestos cases fairly or effectively suggests the trial court would be wise to reject the revised but still defective Angelos plan.
Maryland remains an active jurisdiction for asbestos cases, and 2013 was a particularly active year in both the Baltimore City Circuit Court and the Maryland Court of Appeals. Overall, the results were mixed. The Maryland Court of Appeals issued a sound decision in a take home asbestos exposure case and the Circuit Court for Baltimore City has not embraced a bold plan by the Angelos firm to repeat the mistakes of the past by consolidating thousands of asbestos claims for trial. On the other hand, the state’s highest court missed an opportunity to re-evaluate a twenty-year old causation standard. Maryland’s court system, like others around the country, also suffers from troubling gamesmanship with respect to asbestos bankruptcy trust claim information that must be addressed.