Halt of Asbestos Trial Sought

In a last-ditch effort to avoid a massive and costly legal battle, companies defending against asbestos claims asked the U.S. Supreme Court on Monday to halt a consolidated trial involving as many as 8,000 plaintiffs and 250 defendant companies before it begins.

Jury selection is set to begin in a Charleston, W.Va., courtroom on Sept. 23 if the Supreme Court does not step into the giant collection of liability claims that one judge described as the “asbestos Gettysburg.” Defendants have exhausted their appeals in West Virginia and acknowledged that the Supreme Court bid is a last resort.

West Virginia’s highest court has given a green light to the consolidation of thousands of allegations that asbestos in products such as automotive brakes manufactured or used by the defendants have left the plaintiffs with injuries ranging from breathing difficulties to incurable cancer.

The stakes are huge. With thousands of injury claims filed against hundreds of companies each year at a pace that is accelerating, asbestos litigation has bankrupted more than 50 companies, and experts believe that if the West Virginia trial goes forward, it will encourage more lawyers to seek more claims from people who have little or no disability. Advocates of legislative reform, such as the creation of medical standards for filing claims, are hopeful that Congress will take up their proposals in coming months.

“This is Exhibit A,” said Steve Kazan, an Oakland-based lawyer whose firm represents only seriously ill asbestos victims and who filed a brief in support of the West Virginia defendants’ request for Supreme Court review.

Kazan said the trial plan is less a blueprint for efficient justice than it is a settlement shakedown. “The idea is you raise the stakes so high that for any defendant to go to trial it becomes bet-the-company litigation,” he said. “This is another effort to drain large sums of money from companies, which will reduce the assets that are available to people who are really sick.”

The recent surge in asbestos claims from plaintiffs who are not ill has alarmed those representing the truly sick, who worry that new claims will siphon money from those who most need it. This has put some plaintiffs in the odd position of supporting the defendant companies’ efforts to limit claims.

Because of the variance in asbestos settlements and verdicts, estimates on the total value of the West Virginia claims are hard to make. During the last two years, one jury awarded a dying cancer victim $55 million and another jury gave $150 million to six laborers who were not sick but merely exposed to asbestos.

At least 575,000 asbestos claims have been filed since the early 1980s. Experts believe the total economic toll of asbestos litigation could run at least as high as $200 billion--more than Hurricane Andrew, all Superfund sites combined or the Sept. 11 attacks.

The companies, represented in court filings by Mobil Corp. and Honeywell International Inc., earlier asked the nation’s high court to strike down the trial plan because they fear a hearing of such magnitude would make it impossible for any single defendant to get a fair trial, that jurors would be hard-pressed to keep evidence against one firm from damning the conduct of an unrelated company.

In the motion filed Monday, the companies asked the Supreme Court to prevent the trial from going forward until it decides if it will take up their objections to it.

“It is not customary to ask the United States Supreme Court’s intervention before a trial is held, but this is an extraordinary situation,” said Walter E. Dellinger III, the lawyer who filed the request for the defendant companies. “It is literally unprecedented to have a mass trial of this magnitude against this many defendants.”

Bill Schwartz, a Charleston, W.Va., lawyer representing 900 plaintiffs, said that by trying to force individuals into separate trials, the companies are making it harder for plaintiffs to achieve justice. “It would be more costly and it would delay it to the point where some people just wouldn’t live long enough to have their day in court.”

Only half the trial is to be consolidated. That first, consolidated phase would decide the liability of each defendant company. Companies found to be liable would then face a second phase of litigation to determine which plaintiffs, if any, were exposed to their products and how much each is owed.

Schwartz said he has settled cases with several defendants and is in settlement talks with others now. He said he would be surprised, if the trial goes forward, to see all 250 companies still prepared to litigate.

Consolidating similar lawsuits in asbestos and other types of litigation is not a new idea for courts that are struggling with backlogs and limited resources. One mass asbestos trial in Indiana was held in a gymnasium. But the West Virginia asbestos trial plan is of another order--too large and too diverse to make fairness possible, said Dellinger, the lawyer representing the defendants.

“This mass trial plan does not inhabit the same universe as the due process clause of the United States Constitution,” he said. “To have this trial go forward would irreparably compromise the rights not only of the defendant corporations but also the seriously impaired claimants with mesothelioma and related lung cancers who will have no fair day in court if the mass trial proceeds.”

In a supporting brief filed with the Supreme Court, lawyers for the Coalition for Asbestos Justice, a Washington-based business-backed advocacy group, said the mass trial could set a dangerous precedent for other jurisdictions swamped with thousands of asbestos lawsuits and looking for efficient alternatives to costly and lengthy individual trials. If more courts set up such mechanisms to adjudicate claims, the more people with minor or no injuries will file suits to collect damages, they argue.