Judge rejects motion to put asbestos cases on hold
Says inactive docket violates legal authority

Copyright 2004 Houston Chronicle
May 8, 2004

A Harris County judge on Friday dealt a blow to companies facing hundreds of asbestos lawsuits, rejecting their requests to put a hold on cases in which the plaintiffs have yet to suffer ill effects.

State District Judge Mark Davidson told more than 100 lawyers packed into his courtroom that the creation of a so-called "unimpaired docket" would violate the Texas Constitution and rules of judicial administration.

"At some point in the future, the number of cases filed which could qualify for assignment to an unimpaired docket could result in a denial of right to court access to other cases in which impairment is agreed to exist," Davidson wrote. "It cannot be said that this is the case at this time for cases filed since Sept. 1, 2003 ."

His ruling applies only to cases filed after that date. A Texas Supreme Court panel chose Davidson's court for pretrial motions in all asbestos cases filed in Texas since Sept. 1.

More than 300 asbestos cases -- each of which could have numerous plaintiffs -- have been transferred to Davidson's 11th State District Court since then, according to the Harris County District Clerk's Office.

A broad group of defendant companies, including DuPont, General Electric, Dow Chemical, Union Carbide and CenterPoint Energy, had sought the separate docket, arguing that it would push cases involving plaintiffs with the most serious illnesses to the front of the line.

People placed on an inactive docket would retain their legal cases, but would not be able to proceed with litigation until they suffer actual impairment from asbestos-related illnesses, including lung cancers.

Plaintiffs' lawyers opposed the idea, saying that such an indefinite delay would deny plaintiffs constitutional access to the courts and a trial by jury.

Davidson appeared to agree. But he also encouraged the defendants' attorneys to seek a writ from the Texas Supreme Court to compel him to create the separate docket, if they disagreed with his ruling.

"We are going to take him up on that invitation," said Scott Wheeler, a spokesman for Union Carbide Corp. which is facing nearly 30,000 asbestos cases in Texas . "He is clearly seeking clarification that he has legal authority to create this unimpaired docket. And we feel he does."

The setback also appeared likely to spur Texans for Lawsuit Reform to go back to the state Legislature to get the separate docket created.

"If legislation is needed to bring common sense and fairness to the corrupt practices of asbestos litigation, then we believe that the people of Texas and their elected representatives have the political will to enact the necessary reforms," said TLR spokesman Ken Hoagland.

Two efforts to get lawmakers to create the docket failed last year.

Reminded about that, Hoagland said the public had simply not been informed about "the shocking reality of asbestos litigation."

"When those facts become clear to the people, their state representatives will step forward to correct those abuses," he said.

Asbestos litigation has long been a poster child for advocates of lawsuit limitation, who complain that plaintiffs' lawyers hire screening companies and doctors to solicit clients who have no symptoms of asbestos-related injuries 30 years after the flame retardant construction material was taken off the market.

More than 600,000 asbestos-related lawsuits have been filed nationwide, many of them by people who have yet to develop or show symptoms of asbestos-related illness. About a third of those have been filed in Texas.

"We are disappointed by today's ruling," lawyer Brady Edwards, who represents Owens-Illinois and CenterPoint Energy, said in an e-mail after Friday's hearing. "We believe that a large majority of today's asbestos cases are generated by for-profit litigation screenings designed not to diagnose or treat disease, but simply to manufacture lawsuits. These litigation screenings result in massive lawsuit filings by large numbers of people who are not, by any common-sense definition or the word, sick."

Edwards said he did not know if his clients would appeal Davidson's ruling.

Davidson made his ruling just 20 minutes after a four-hour hearing that included testimony from medical and legal experts about what criteria could be used to determine which cases should be moved to an inactive docket.

The speed with which Davidson delivered his typewritten, one-page ruling made it clear he had versed himself in the phonebook-sized briefs and boxes of exhibits from both sides that were stacked in his office.

The judge noted that no totally objective criteria have been proposed.

He acknowledged, however, that creation of an inactive docket would be in the best interest of the defendants and plaintiffs who are most seriously injured.




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