Tuesday, January 23, 2007

Being a Minor Defendant in a Mass Tort

It stinks to be a minor defendant in a mass tort.  Not that it's so great to be a major defendant, but at least that feels more straightforward.  Last night, someone left this interesting comment to a post on the WSJ Law Blog:

As the owner of a small business, I can tell you first hand how unfair some state courts have been towards defendants of asbestos lawsuits.

Even though we never had anything to do with asbestos, a few years our firm got named in its first asbestos lawsuit. Before long, we had been sued in several different states, all in places where we had no employees. The typical lawsuit would name from 80 to 150 other defendant companies, but not include any details why we were responsible.

The most frustrating part has been the unwillingness of the courts to dismiss these unwarranted lawsuits in any reasonable time fashion. In the few cases where the court has heard our motion, the dismissal was near automatic. But in most cases, the courts have been unwilling to schedule a hearing.

If our example is typical, it would make a person wonder how they could ever get justice out of our courts.

From the perspective of someone who teaches litigation procedure, it's easy to get complacent about the assumptions built into much of modern U.S. civil procedure:  notice pleading, liberal discovery, vigorous summary judgment.  We look at pleadings that identify numerous potential defendants and feel that all's well that ends well.  As long as there is a non-frivolous basis for the allegations, then we figure that the massive pleading is proper, and if the system functions properly, claims that ultimately prove non-meritorious will be weeded out on motions to dismiss, summary judgment, or at trial.  I've taught this story to first-year civil procedure students many times.  But it's useful to be reminded (and to remind our students) that for the litigants, the process can be painful and costly even when it functions largely according to plan.

Here's a litigant who's been named in complaints that "do not include any details why we were responsible" (notice pleading), who's been listed with "80 to 150 other defendant companies" (permissive party joinder), who's been sued in "several different states, all in places where we had no employees" (long-arm jurisdiction), who's found courts slow at scheduling hearings on pretrial motions (the nature of complex litigation, perhaps MDL or statewide coordinated proceedings), and who eventually achieved "near automatic" dismissals.  My students could state why that's an example of the procedural system functioning properly, and why this litigant should be pleased to emerge victorious.  But try explaining that to the small business owner who doesn't understand how he or she has gotten dragged into this morass, who's paying legal fees and losing sleep, and who just wants to get back to business.



Asbestos, Ethics, Procedure | Permalink

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