The Defendant Over-Naming Trouble: West Virginia Asbestos Litigation
January 15, 2021
Mary Margaret Gay – Gay Jones & Kuhn PLLC
Asbestos litigation continues to create problems for businesses and West Virginia is the epicenter. Over-naming of defendants in asbestos litigation, who have little or no known liability for asbestos-related products, is a serious issue and it is trending upward for companies. Over the past three decades more than 100 companies have filed for asbestos-related bankruptcy protection leaving plaintiffs’ attorneys scrambling to find and name new viable companies in lawsuits. This search for the ever-solvent defendant has led to the habitual over-naming of asbestos defendants that do not belong in the case and end up being dismissed after costly litigation with no liability. This litigation tactic is unnecessarily driving up litigation costs, bankrupting companies, creating further West Virginia court backlogs, and leaving unsuspecting victims with delayed recoveries.
Cases set on trial dockets in West Virginia show this increasing trend where plaintiffs’ counsel “sue first and discover facts later.” In the 38 cases set on the July 2020 trial dockets in West Virginia, more than 4,489 defendants were named on Complaints. These defendant lists include as many as 436 companies. The average Complaint named over 118 defendant companies.
The percentage of times those companies are named and then dismissed with no liability is contemptible. In the Lung Cancer trial group, on average, 35% of all the defendants named on a Complaint were dismissed with no finding of liability. That average dismissal percentage jumped to 39% for the Exigent trial docket cases. The Exigent docket is comprised of mesothelioma and lung cancer cases.
The number of defendants named on a typical asbestos complaint in West Virginia is increasing yearly. Cases in the lung cancer trial group named an average 115 companies on a single Complaint. The number increased to an average 120 defendants named on a Complaint for exigent cases set on the 2020 trial docket in the state.
One complaint named over 210 companies and 26 others named more than 100 companies as defendants. These Complaints list pages and pages of defendants with no specific connection or exposure to a company or a product related to the company.
Robert Kincaid vs. 3M, et al. (Kanawha County) Cause No. 03-C-9600
The Kincaid case, filed in July 2019 by the Antion McGee and Maune Raichle law firms, included a list of defendants five pages long naming more than 210 companies. The Kincaid case was set on the 2020 trial docket and 26% (about 55 defendants) have been dismissed without any liability.
James McLain vs. AO Smith, et al. (Kanawha County) Cause No. 15-C-1208
The McLain case, filed by the Prim and Savinis, D’Amico & Kane law firms, named 165 defendant companies. 35% of the defendants named on that Complaint were dismissed without liability when the case was set on the 2018 trial docket.
Despite the bankruptcies of traditional asbestos defendants, the number of defendants named continues to grow. The companies that are being named as defendants on these Complaints do not include the more than 100 “big dusty” companies who have filed for asbestos-related bankruptcy protection and are no longer named in cases. Some of the companies named in recent years on Complaints in West Virginia had never been historically sued in asbestos litigation.
The high dismissal rates for companies named on asbestos Complaints validates the over-naming problem. Long lists of defendants named in a case only to be dismissed with no liability.
Sidney Mauney v. 3M Company, et al. (Kanawha County) Cause No. 12-C-155
The Mauney case named 75 defendants on the Complaint. By the time the case was set on the 2020 trial docket 70% of the defendants named on the Complaint had been dismissed without any payment for liability. These companies were named in cases and paid ongoing costs of litigation only to be dismissed without pay prior to trial.
This dismissal rate is a trend and not a one-off occurrence. The John Kerns case named 116 defendants and 64 have already been dismissed without liability. The David Harbert, Stephen Templeton and Christopher Logelin cases have all dismissed more than 50% of the defendants named on the Complaints.
A review of all the defendants named in the trial group Complaints reveals a substantial number of dismissals- 400 defendants were dismissed from every case that they were named on the Complaint. For a company in West Virginia litigation this means litigation costs are baselessly incurred for a large portion of the cases in which the company is originally named.
The data in this report was compiled and analyzed by Gay Jones & Kuhn PLLC using publicly filed documents, information and case dockets made available in West Virginia asbestos cases. The data cited is based on case information posted and available as of September 30, 2020. These numbers will continue to change as remaining defendants resolve and/or are dismissed without pay from these cases. A defendant’s status in a case as cited in the report based on the docket reflection of the type of final Orders of dismissal entered for each defendant.
A defendant is considered dismissed with no liability and no settlement if the docket reflects an Order for Dismissal Without Prejudice; a defendant is marked settled/paid if the docket notes a verdict (none are reported in the data set reviewed) or a Dismissal with Prejudice on the docket; and a defendant is considered pending if the docket does not reflect a final status Order. It is unlikely that any defendant remains pending in the cases on the trial dockets, as those trial dates have now passed. However, without clear docket notation there is no information to report related to their dismissal or settlement status. It is likely that the number of dismissals for defendants with no liability is higher than reported on the docket.
Mary Margaret Gay is a founding member of Gay Jones & Kuhn in Jackson, Mississippi. Mary Margaret represents clients locally, regionally, and nationally in product liability and environmental litigation. She served as counsel of record for more than 40 defendants in the Federal Asbestos MDL and assisted the Court in the management and closure of the MDL resulting in the dismissal of thousands of cases. In 2015, she and her partners pioneered technology used to assist asbestos defendants and their counsel nationwide to develop alternative exposures and estimate asbestos bankruptcy trust claims values. Mary Margaret is known for being at the forefront of issues affecting asbestos litigation and for her ability to maximize available data to track and report trends in asbestos litigation. Clients call on Mary Margaret for her creative problem-solving and ability to collaborate with others involved in the litigation to identify innovative solutions to problems old and new. She has undertaken numerous studies, published articles, and routinely speaks on issues affecting the ever-changing asbestos litigation landscape.