Many plaintiffs consider the Circuit Court for Baltimore City to be the asbestos capital of the Maryland courts. After all, the City has its own asbestos litigation rules, docket procedures, and even its own electronic filing system for asbestos cases. Specifically, since 1987, litigants have filed suits and handled discovery and trial dates under a Master Order docketed by the late Judge Marshal A. Levin.
In the years following Judge Levin’s Order, plaintiffs’ attorneys have filed tens of thousands of cases in Baltimore City—at a rapid pace. But as it turns out, the cases have not processed through the court system as fast as they are coming in. This has resulted in a massive case load accumulating in the Circuit Court.
On October 17, 2017, the Judicial Proceedings Committee of the Maryland Senate hosted a briefing in Annapolis regarding how best to address this matter from a legislative perspective. Well attended by members of the plaintiffs’ bar, defense bar, and the judiciary, this two-hour hearing proved to be a battleground of ideas among lawyers who face each other in asbestos litigation numerous times a year, and only raised further questions about the issue at hand.
Chief among the concerns is that there are currently well over 20,000 cases presently on the “active docket” and more than 5,000 additional cases on the “inactive docket.” The task: go through each case file and determine which cases are still viable and which are not. This is where it gets complicated. It is unclear what the status of some of these cases are, though it is known that some of them have already been litigated, but were not administratively closed by the clerk’s office. This is apart from the problem of whether plaintiffs are still alive to prosecute some of the cases, or if viable defendants remain to defend them.
Administrative Judge W. Michel Pierson noted that clearing this backlog can take “many, many years,” even if 200 or 250 cases (with trial dates assigned) reach a resolution each year. Judge Pierson has instituted status conferences for older cases, with over 100 of these cases resolved in 2017. He has also pushed for plaintiffs’ attorneys to set more cases in for trial, as many trial slots have gone unfilled in the past. However, Judge Pierson pointed out that he is currently not satisfied with the pace at which the docket is clearing. To that end, he requested the Senate Committee authorize more administrative professionals. He acknowledged that there were three judges specifically tasked with handling asbestos cases, as well as an Asbestos Special Master. However, he stressed that enough man power is not currently there to handle the administrative issues presented.
The plaintiffs’ bar suggested that mass consolidation is the way out, pointing to mass consolidated trials in 1990 and 1993, where nearly 10,000 cases were grouped for trial in which a single jury returned verdicts as to the negligence and strict liability of dozens of defendants. In those cases, the jury’s findings in the first phase were then applied to various “mini-trials” as was necessary to close out the affected cases. Plaintiffs’ counsel suggested that more recent attempts to have such consolidated trials have not been granted because the motions to consolidate did not follow a streamlined procedure. Now, a more unified plaintiffs’ bar is ready to submit a new motion for mass consolidation, which would group cases together by job sites.
When asked by the senators what the plaintiffs’ bar believes the legislature could do to solve the backlog issue, plaintiffs’ counsel stated only that they are “not asking for anything right now” and that they are “still reviewing the issue.” Nonetheless, Plaintiffs’ counsel did suggest that the legislature should authorize additional funds for judges and administrative staff (that, however, is not within the realm of the Judicial Proceedings Committee), but said that the plaintiffs’ bar was not asking the legislature to enact a statute regarding the backlog.
The defense bar, principally represented by Venable LLP, told the Committee that plaintiffs’ proposed approach was factually flawed. The consolidated trial approach, the defense bar stated, was the plaintiffs’ bar’s attempt to create “a superhighway” in which claims that lack merit could be grouped with viable ones in order to reach some type of recovery across the board. Instead, the lawyers from the defense side emphasized that no legislative intervention was needed to address the backlog, because the real issue was something different. The defense pointed out that there are 2,000 trial slots that have gone unfilled since 2008, despite plaintiffs filing over 4,500 new complaints in that same time period. In addition, the defense argued that litigants could utilize courts outside of Baltimore City to gain greater access to judges and trial dates but they elect not to. And unlike the plaintiffs, the defense believes that letting Judge Pierson’s process play out is instrumental, as it has already eliminated 2,000 older claims, many of which are not viable as no injury ever manifested.
It will be interesting to see how the issue plays out, as it is hard to imagine a consensus on the approach to clearing the backlog any time soon.
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