Michigan Supreme Court shows judicial restraint with asbestos decision
Courts and legislatures around the country are taking a serious look at the problems created by the consolidation of mass tort cases, such as asbestos and silica litigation. The Michigan Supreme Court provided the latest move toward restoring balance with asbestos litigation in Administrative Order No. 2006-06.
Those of us fighting for civil justice reform often criticize activist judiciaries for creating new law rather than interpreting existing law. We say that creating law is the right and responsibility of legislatures, not courts. However, in this case, Michigan’s Supreme Court came up with a unique approach to controlling caseloads and prioritizing sick people over those with no symptoms, while consciously leaving creation of new law to the Michigan Legislature. The Michigan decision is a refreshing reminder that many courts, including those that have implemented inactive dockets, do resist the temptation to create new law from the bench.
The court ordered that each case should be decided on its own merits, and not in conjunction with other cases. As a result, asbestos-related cases cannot be joined with any other cases for settlement. That will help to end the abusive practice of bundling cases, where the claims of a large number of unimpaired individuals are addressed in conjunction with a few truly sick asbestos claimants.
Legislatively, reform advocates such as PCI have supported proposals that require an asbestos plaintiff to submit medical evidence showing actual physical impairment from asbestos to bring a lawsuit. While the order does not specifically address a number of the requirements included in medical criteria bills, it will likely lead to fewer cases, because so many plaintiffs have never been sick as a result of asbestos. Without actual injury, those cases will be much harder to pursue.
Justice Markman wrote for the majority: “This administrative order will, in my judgment, help to restore traditional principles of due process in asbestos cases by ensuring that they are resolved on the basis of their individual merit, and that they do not serve merely as ‘leverage’ for the resolution of other cases.” This approach will also move sick claimants to the head of the list where they belong.
The court’s order shows that the justices clearly thought about the separation of powers implications of their decision. In the majority opinion, Justice Markman stated, “I believe that this ‘antibundling’ administrative order indisputably falls within the scope of our judicial powers.” He went on to say that “this administrative order will better enable the legislature, which is considering asbestos litigation, to undertake an assessment of the true costs of asbestos litigation. At present, these costs have been camouflaged by the “bundling” process, at the expense of fundamental due process rights.”
The Michigan Supreme Court joins a growing list of courts around the country that have taken steps to control the rampant litigation already clogging the court system by creating inactive asbestos dockets. Those include New York City and Syracuse, N.Y.; Cleveland, Ohio; Minneapolis (coordinated litigation); Madison/St. Clair Counties in Illinois; Portsmouth, Va.; Seattle; Massachusetts (coordinated litigation); Chicago; and Baltimore, Md. Cases on the federal multi-district litigation docket have been subject to dismissal if the plaintiff cannot provide evidence of impairment caused by asbestos since 1992.
If the Michigan Legislature enacts a medical criteria bill, it will join a growing number of legislatures that have taken steps to restore balance in asbestos and silica litigation. Those states recognized that when the number of exposed people and the death rate from asbestos and silica are declining, something is wrong if the number of lawsuits explodes. Since 2004, Ohio, Georgia, Florida, Texas, Kansas and South Carolina have enacted asbestos/silica medical criteria bills. Tennessee enacted a silica medical criteria bill. Mississippi enacted general tort reform in 2003.
Preliminary results have been dramatic. NERA Economic Consulting found that new case filings for 18 publicly traded asbestos defendants were declining. Plaintiff attorneys are openly talking about significant reductions in their asbestos case counts. Partner Perry Weitz, of Weitz & Luxenberg in New York was quoted in the July 2006 edition of American Lawyer: “I wish I still had 50,000 cases. But now this is a case-specific litigation.”
While the results are impressive, they are not conclusive. More states need to enact medical criteria bills to make it difficult for plaintiff attorneys to funnel cases for many states into friendly jurisdictions. Legislators are becoming more receptive to the simple logic of the argument: The claimant has to be truly injured and the case must have a meaningful connection to the court where the lawsuit is filed. Hopefully, they will take action quickly.
David Golden is director of commercial lines for the Property Casualty Insurers Association of America. At PCI, he is responsible for general liability and commercial automobile issues countrywide, including asbestos.