Hundreds of asbestos cases at stake in hearing

Houston Chronicle
May 7, 2004, Page 3C

Dozens of lawyers and expert witnesses are expected to gather today for a hearing that could decide the fate of hundreds of asbestos-related lawsuits from across Texas.

The hearing in the court of state District Judge Mark Davidson will center on a request by defendant companies for an "unimpaired docket," which would shelve any claims in which plaintiffs have yet to show any illness related to asbestos exposure.

If the motion is granted, hundreds of cases from all over the state would be set aside until the plaintiffs can show they are suffering impairment.

Defendant companies and tort reform groups twice tried to get the Legislature to create a separate, inactive docket last year. Both efforts failed.

Now they want Davidson to do what lawmakers would not.

A Texas Supreme Court panel last year chose Davidson's court as the venue for pretrial motions in all asbestos cases filed in Texas after Sept. 1, 2003.

To date, according to the Harris County district clerk's office, more than 300 asbestos cases have been funneled to Davidson's court since then.

Although Davidson will not be the trial judge, his pretrial rulings will have a significant impact on every case, especially if he creates an inactive docket.

Such a separate docket likely would require developing specified criteria for determining which plaintiffs are "impaired" by asbestos-related illness.

"I think the message is, these cases require us to examine our usual ways of doing business, because those produce a mess if used in the asbestos cases," University of Houston Law School professor David Crump said Thursday.

Asbestos, a common form of magnesium silicate, was used as a fire retardant for decades in various types of construction. Inhalation of asbestos fibers has been linked to cancers of the lungs and lung linings, and to a lung illness called asbestosis.

But because such illnesses can take years, or even decades, to develop, most of the more than 600,000 asbestos lawsuits filed nationwide involve people who have yet to develop symptoms or suffer ill effects of exposure.

The defendants - including dozens of companies such as Dow Chemical, its subsidiary Union Carbide, CenterPoint Energy, ExxonMobil, General Electric and Kelly-Moore Paint Co. - say implementing an "unimpaired docket" would speed up the case flow for claims in which more seriously ill plaintiffs could have their day in court.

It also probably would ease financial pressure on companies facing the possibility of costly payouts in hundreds or thousands of lawsuits if most of those cases were put on hold.

Plaintiffs' lawyers argue that creating an unimpaired docket would keep their cases out of court indefinitely, violating their clients' rights to an open court and trial by jury.

They also dispute the defendants' claims that asbestos litigation nationwide has been slowed by cases involving unimpaired plaintiffs.

Nationally, asbestos-related litigation is in its third decade and has been blamed for nearly 70 companies filing for bankruptcy over the years.

A report by the Rand Corporation last year estimated that asbestos lawsuits could cost businesses and insurers as much as $210 billion over the course of the litigation.

"It's become a huge industry," said George Christian, general counsel for the Texas Civil Justice League, an Austin-based group that includes the Texas Asbestos Consumers Coalition. "There's a heck of a lot of money involved in it. There are a lot of fairly significant-sized businesses now faced with, or recently gone into, bankruptcy protection as a result of the volume of claims and liability."

He acknowledged that the creation of an unimpaired docket would give defendants an advantage, but said there also would be risk, since plaintiffs with the most serious illnesses would move to the front of the line in the courtroom.

"It's a big advantage for many, many defendants, and it's an advantage for a small number of plaintiffs who are very ill," Christian said.

Crump said the defendants' desire to speed up the dockets largely coincides with the public interest of getting the most serious cases heard first.

"It does you very little good if you testify today and die tomorrow," he said. "What good is the award going to be for you?"

However, he said, plaintiffs' attorneys' arguments against a separate docket are valid if it means some cases never get to trial.


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