Featured Expert Contributor: Mass Torts—Asbestos

Robert H. Wright is a Partner with Horvitz & Levy LLP in Los Angeles, CA and is the WLF Legal Pulse’s Featured Expert Contributor on Mass Torts—Asbestos.

As discussed in a March 2021 WLF blog, the over-naming of defendants is a growing problem in asbestos cases.  See One Response to Over-Naming of Asbestos Defendants: Allegations as Evidentiary Admissions.  Some states are now adopting a legislative fix by requiring plaintiffs to show early in the case an evidentiary basis for their claims.

In April, the West Virginia governor signed H.B. 2495 requiring plaintiffs to submit sworn information in asbestos cases specifying the evidence against each defendant.  The plaintiff must identify the facts supporting the alleged exposure including the dates, location, frequency, length of exposure, and proximity to the product creating the exposure.  The plaintiff has 30 days to submit the information after filing the complaint.  The new requirement is effective beginning this summer.

Circuit Judge Ronald E. Wilson may have provided some of the impetus for the West Virginia legislation.  Judge Wilson oversees the asbestos docket in that state.  As discussed in the March 2021 WLF blog, he chastised plaintiffs’ law firms for naming too many defendants in asbestos cases.  He warned of a “dreadful experience” during the pandemic trying cases with more than 100 defendants each.

West Virginia was not the first state to enact legislation addressing the over-naming problem.  Last year, Iowa enacted S.F. 2337, which also requires plaintiffs to submit sworn information showing the basis of claims in asbestos cases.  Although the Iowa and West Virginia statutes differ in some particulars—such as whether the information must be submitted with the complaint as in Iowa, or thirty days later as in West Virginia—the statutes are in substance the same.

The problem of over-naming is not limited to Iowa and West Virginia.  A report by the Illinois Civil Justice League showed that the average asbestos lawsuit in Illinois named 70 defendants and some lawsuits named closer to 200.  In those cases, 60 percent of the defendants were dismissed without a finding of fault or payment.  See K. Bessler, Study Reveals Illinois Companies Wrongfully Named in Asbestos Cases, the Center Square (Apr. 30, 2021).  Stated differently, 60 percent of the defendants in each case faced claims that lacked merit.

Perhaps reflecting the breadth of the problem, other states are also considering legislative solutions.  So far this year, states considering over-naming legislation are reported to include Illinois, Missouri, North Dakota and Tennessee.  S. Korris, Illinois Should Adopt ‘Over-Naming’ and ‘Double-Dipping’ Reform to Asbestos Litigation, ICJL Report Says, Madison – St. Clair Record (Apr. 29, 2021); C. Gerber, Missouri Senate to Debate Asbestos Litigation Reform, The Missouri Times (Mar. 8, 2021). These legislative efforts are worth monitoring.