West Virginia Record
The Name Game: Over-Naming in West Virginia Asbestos Litigation
by Mary Margaret Gay
March 15, 2021
JACKSON, Mississippi – Asbestos lawsuits in West Virginia continue to drive up costs for businesses that are ultimately dismissed with no finding of liability.
In a wake of mass bankruptcies that removed the “big dusties” (former insulation manufacturers) from the tort system in the early 2000s, asbestos plaintiffs’ attorneys scrambled to find and name still-solvent companies in lawsuits. This began a never-ending search for new defendants, leading to exponential growth in the number of companies sued in asbestos cases.
But as plaintiffs’ lawyers “cast a wider net to capture solvent defendants, they ensnare many innocent companies in the process — just like a fishing net for tuna ensnares dolphins as by-catch.” Erroneously named companies caught in this “name game” often achieve dismissal, but that can take a long time … and is expensive.
The pattern of over-naming followed by eventual dismissal places a heavy financial burden on affected companies, which never recoup wasted expenditures spent on costly pre-trial discovery, court mandated mediation, and other significant legal expenses.
West Virginia is ground zero of this type of lawsuit abuse known as “over-naming.”
Over the last 15 years, asbestos litigation in West Virginia has been defined by tri-annual consolidated trial groups, where volume reigns supreme and lawsuits naming fewer than 100 defendants are a rarity. New data collected from West Virginia trial set cases demonstrates that too many plaintiffs’ counsel sue first and discover facts later.
The numbers are striking. More than 4,489 company-defendants were named on complaints in the 38 asbestos cases trial set for July 2020 in Wheeling. The average asbestos complaint named over 118 defendants. Many more defendants are named in some cases. For example, the complaint in Robert Kincaid vs. 3M (Kanawha County case number 03-C-9600) filed in July 2019 included a list five pages long naming more than 210 defendants.
The percentage of companies that are named and then dismissed with no liability is contemptible. On average, 39 percent of the defendants in exigent trial docket cases in the sample (mesothelioma and lung cancer cases) were dismissed with no liability. In some cases, the percentage of defendants dismissed was much higher.
For example, the Sidney Mauney v. 3M (Kanawha County case number 12-C-155) case named 75 defendants on the complaint. By the time the case was set on the 2020 trial docket, 70% of the original defendants had been dismissed without any payment for liability.
The Honorable Judge Ronald Wilson has managed the asbestos personal injury docket in West Virginia since 2005. He is arguably responsible for the development and implementation of the modern trial group system under which asbestos matters are processed in West Virginia.
In 2020, Judge Wilson specifically wrote about the propensity of plaintiffs’ counsel’s to over-name, pointing out the negative impact on his ability to resolve cases. In a letter to attorneys, Judge Wilson said, “In my judgment the phrase ‘you reap what you sow’ may come true to those who abuse the liberal civil justice procedure for suing questionable defendants, accusing them of causing personal injury to their clients when the evidence of their liability amounts to a mere gamble in a lawsuit.”
He cancelled a scheduled mediation based on the “excessive number of defendants,” explaining “there is no way I can mediate these cases with the vast number of defendants.”
Recent case studies have shown that erroneously named companies bear high costs to extricate themselves from such cases. A company “could easily have spent $20,000 to defend the case in which they should never have been named in the first place.” The statistics are unable to account for the companies that acquiesce to the pressure and volume of West Virginia’s asbestos litigation. And these costs are multiplied by the hundreds and even thousands of cases filed across the country.
Recently, some companies have declared bankruptcy due at least in part to the costs associated with being erroneously named in asbestos complaints.
For example, in the 2020 bankruptcy filing of DBMP LLC, the holding company for CertainTeed’s legacy asbestos liabilities, DBMP notes that more than half of “claims filed against [CertainTeed] after 2001 were dismissed — usually because the plaintiff could provide no evidence of exposure to a [CertainTeed] asbestos containing product.”
According to ON Marine, another asbestos defendant that filed bankruptcy in 2020, 95 percent of the over 182,000 asbestos personal injury claims filed against it since 1983 were dismissed without payment to a plaintiff.
The West Virginia Legislature is considering over-naming reform legislation (House Bill 2495) modeled after a pioneering disclosure law enacted in Iowa in 2020. The proposal requires a plaintiff to provide the parties with a sworn information form and supporting documentation disclosing the evidentiary basis for each claim against each defendant in an asbestos case. The information must be provided 60 days after the filing of an asbestos action. Defendants that do not belong in the suit would be able to obtain early dismissal.
This legislation is needed in West Virginia. Over-naming of asbestos defendants is a serious issue, unnecessarily driving up litigation costs, bankrupting companies, creating further West Virginia court backlogs, and leaving unsuspecting victims with delayed recoveries.
Judge Wilson has a role to play, too. After all, his observations helped shed light on the need for reform. The current West Virginia legislation is likely to pass, and the job will fall to him to implement it.
Judge Wilson has the opportunity to make strides to end over-naming by simply enforcing the letter and spirit of the new law. He should do so. This will relieve pressure on defendants that do not belong in lawsuits and allow cases against proper defendants to be resolved more quickly.
Gay is a founding member of Gay Jones & Kuhn, a Mississippi-based law firm that pioneered a database program used to assist asbestos defendants and their counsel nationwide to develop alternative exposures and estimate asbestos bankruptcy trust claims values.