3. MODEL PLEURAL REGISTRY ORDER

Transcription

1 3. MODEL PLEURAL REGISTRY ORDER Because of the long latency period for diseases resulting from exposure to asbestos, many asbestos cases are filed by persons who have been exposed but are not presently suffering from an asbestos-related disease. 1 Large numbers of cases have been filed on the basis of a diagnosis of pleural thickening, plaque, or calcifications, or of an x-ray consistent with an asbestos related disease. Filing of such case is especially motivated by the concern that the statute of limitations not run. Uncertainty in certain states as to when the statute of limitations will begin to run, and, in states having a discovery standard, as to what information will be deemed to constitute notice of discovery, 2 can 1 See Patrick Hanlon, Asbestos Legislation: Federal and State, Oct. 31, 2003, at 32 ( about 80% of all non-malignant claimants are unimpaired ). 2 See, e.g., Debiec v. Cabot Corp., 352 F. 3d 117, 129 (3d Cir. 2003), describing the law in Pennsylvania: Generally, a claim accrues as soon as the right to institute and maintain a suit arises, which, in most tort actions, is at the moment the injury is sustained. In order to " 'ameliorate the sometimes harsh effects' of the statute of limitations, however, Pennsylvania courts have crafted an exception to this rule for situations in which a party, through no fault of his or her own, does not discover her injury until after the statute of limitations normally would have run. Latent disease cases often implicate this so-called "discovery rule," which tolls the statute. In this type of case, the statute of limitations begins to run... when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct. In order to take advantage of the discovery rule, a plaintiff must have exercised due diligence" in investigating her physical condition... In sum, the statutory time period begins to run in latent disease cases at the moment at which the plaintiffs possessed "sufficient critical facts to put [them] on notice that a wrong has been committed and that [they] need investigate to determine whether [they were] entitled

2 warrant a prudent attorney to recommend filing suit even though there is no present physical injury. In addition, filings can be prompted by various kinds of screening. Screenings may be conducted by unions and community and health organizations in a good faith attempt to inform persons of the risks arising from exposure in their employment, or by commercial enterprises for the purpose of generating cases. When some 17,000 cases were filed en mass in the multidistrict litigation transferred to the U.S. District Court for the Eastern District of Pennsylvania, Judge Charles R. Weiner commented: [T]hat the screening cases have been filed without a doctor-patient medical report setting forth an asbestos related disease has not been refuted. The basis for each filing, according to the evidence of the moving parties, is a report to the attorney from the screening company which states that the potential plaintiff has an x-ray reading consistent with an asbestos related disease. Because this report may set in motion the running of any applicable statutes of limitations, a suit is then commenced without further verification. Oftentimes these suits are brought on behalf of individuals who are asymptomatic as to an asbestosrelated illness and may not suffer any symptoms in the future. Filing fees are paid, service costs incurred, and defense files are opened and processed. Substantial transaction costs are expended and therefore unavailable for compensation to truly ascertained asbestos victims. 3 The overload of asbestos cases in the courts often resulting in serious cases not being reached, or not being subjected to serious settlement consideration, in a timely fashion has led a number of courts to create pleural registries. In the early 1990 s, various courts issued orders giving priority to cancer claims or other serious conditions, deferring other cases for trial settings or dismissing them without prejudice. Some registries were voluntary, like the order of Judge Moss, of the Pa. Ct. of Com. Pis., in a 1993 order creating a voluntary pleura registry under which claims of asympotomatic plaintiffs are dismissed without prejudice, to be reopened on an expedited basis if the plaintiff develops asbestos-related cancers. 4 to redress." Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985). 3 In re: Asbestos Products Liability Litigation (No. VI)(Civ. Ac. No. MDFL 875, E.D. Pa.), Administrative Order No. 8m o, 2 (Jan. 15, 2002). 4 Judge Sandra Mazer Moss, State-Federal and Interstate Cooperation, Case Management Techniques Move Complex Litigation, Hasten Disposition of

3 Others were mandatory, moving such claims to an inactive list for a trial setting, or dismissing them without prejudice, with provisions that they could be moved onto a trial or active docket upon a motion meeting certain criteria as to actual manifestation of disease or injury and, in some courts, satisfying certain medical standards. In the late 1990 s, defendants and insurers have conducted a vigorous campaign to persuade state courts to adopt inactive dockets, which would help short-circuit the litigation screening mechanism that sends unimpaired cases in huge numbers into the court system. 5 These orders were generally issued pursuant to a court s claim of inherent authority to exercise control over its dockets. Pleural registries, or deferred or inactive dockets, have been established by administrative or case management orders in Cook County, Illinois; Madison County, Illinois; Baltimore, Maryland; New York City, New York; Syracuse, New York; Cuyahoga County, Ohio; Multnomah County, Oregon; Bucks County, Pennsylvania; Delaware County, Pennsylvania; Greenville County, South Carolina; King County, Washington; and Kanawha County, West Virginia; and in federal MCL cases. 6 Legislation in Ohio established minimum medical criteria for nonmalignant and lung cancer cases. 7 A petition for a rule or administrative order is pending before the Michigan Supreme Court, which compiled extensive comments from individuals and organizations. 8 Most of the registries, or deferred or inactive dockets, created in recent years have been mandatory. Constitutional questions based on separation of powers, due process, equal protection, and access to courts have been raised, 9 but there are no definitive precedents. The Task Force takes no position on mandatory registries, instead reaching agreement on this proposal for voluntary registries. There is reason to believe that if voluntary Asbestos, Other Cases, State-Federal Judicial Observer (Federal Judicial Center & National Center for Stare Courts), April 1993, at 3. 5 Hanlon, supra note 1, at See web site for Asbestos Task Force, attachments in 7 Ohio Substitute House Bill 292 (signed by governor on June 3, 2004). 8 See 9 See Professor Erwin Chemerinsky, Statement of Opposition to Petition to Establish a Court Rule or Administrative Order Creating Statewide Inactive Asbestos Docketing System, id.

4 registries are available, and if a filing can be made at a low cost, 10 most persons with asymptomatic claims will choose to file in a registry than in a court filing. The registry will provide them the protection of the tolling of the statute of limitations or repose, without the necessity to prosecute their cases unless and until they experience further injury. This proposal also does not adopt the kind of medical criteria or other requirements found in many mandatory registries for restoring a case to the active docket. This is based on the belief that, with the protection of the tolling of the statute of limitation, there will not be a strong incentive for attorneys to undertake the costs and obligations of filing weak cases for injury until there has been a change in the condition. The Task Force s proposal regarding establishment of standards for screening vans should also reduce the incidence of en mass case filings. When and if a registrant does decide to file suit, he or she will, of course, be subject to the normal standards for adequacy of pleading and motions for summery judgment. 10 Recognizing that courts may have some administrative costs in administering the registries, this proposal would allow for a filing fee of up to $50.

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