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A first-of-its-kind hearing on Dec. 12 before the new multidistrict litigation panel focused on whether a single judge should decide pretrial matters in more than 20 asbestos cases filed around the state of Texas against New York-based Union Carbide Corp. Concern that the MDL panel’s decision in Union Carbide Corp. v. Adams, et al. could impact thousands of other asbestos cases filed before Sept. 1, 2003, drew approximately 100 spectators — many of them attorneys — to the 3rd Court of Appeals courtroom in Austin for the arguments. “It could have a really big impact,” one attorney who requests anonymity says of the panel’s anticipated decision. The recently enacted Rule of Judicial Administration 13 — a mandate of H.B. 4, the tort reform law passed by the Texas Legislature in June — allows litigants to request that a single judge hear all pretrial matters in state-court cases having common issues. Adopted by the Texas Supreme Court in August, Rule 13 applies to cases filed after Sept. 1. A five-judge panel appointed by the Texas Supreme Court and chaired by 224th District Judge David Peeples, presiding judge of the 4th Administrative Judicial Region, will appoint Rule 13 judges. Other panel members are 13th Court of Appeals Justice Errlinda Castillo, 3rd Court of Appeals Justice Mack Kidd, 1st Court of Appeals Justice George Hanks and 5th Court of Appeals Justice Douglas Lang. In an interview, Texas Supreme Court rules attorney Chris Griesel describes the panel as an appellate court of sorts that deals with emerging trial court issues. The MDL rule replaces Rule of Judicial Administration 11, which allowed the presiding judge for a judicial administrative region to appoint a single judge to hear all pretrial matters in cases with common issues filed within the region. Rule 11 still applies to cases filed before Sept. 1. But an amendment — Rule 11.7 — adopted by the state Supreme Court allows cases governed by Rule 11 to be subject to the MDL rule by agreement of the parties. Griesel says that Rule 11.7 allows Rule 11 judges in various regions to coordinate with the Rule 13 judge appointed by the MDL panel to handle pretrial matters in certain cases. “Coordinate may mean they make a phone call [to the Rule 13 judge],” Griesel says. “It’s not following in lockstep.” Stephen Tipps, head of the appellate section at Houston’s Baker Botts and an attorney for Union Carbide, says in an interview that the company’s motions, filed with the MDL panel on Sept. 13, originally sought a Rule 13 judge for five cases. The parties settled one case and another was nonsuited because the motions were filed, he says. If approved by the panel, the motions would apply to about 20 other “tag-along” cases that have arisen since Union Carbide filed the motion, Tipps says. Tipps says Union Carbide also filed Rule 11 motions with presiding judges in eight of the nine judicial administrative regions in Texas that involve more than 2,600 asbestos cases filed against the company. What Union Carbide wants is to have all asbestos cases pass through one judge, Dallas attorney Mike Kaeske told the MDL panel during the Dec. 12 hearing. Kaeske, a principal in the Kaeske Law Firm in Dallas, represents plaintiffs suffering from mesethelioma, a rare form of lung cancer contracted by people exposed to asbestos dust. Kaeske and other plaintiffs attorneys argued repeatedly before the panel that Union Carbide’s goal is to delay cases. “It is about delay,” Charles Siegel, a partner in Dallas’ Waters & Kraus, told the panel. Having a single judge making decisions in all the cases would be like having 10,000 people in the Dallas/Fort Worth International Airport trying to get through a single metal detector, Siegel said. “If this Rule 13/Rule 11 scheme is put into place, we could be buried in paper,” Greg Jones, a shareholder in Houston’s Franklin, Cardwell & Jones, contended. TOO LONG Kaeske says in an interview that the appointment of a Rule 13 judge could mean that his terminally ill clients won’t live to have their day in court. “Just to set up the system that they want to have will take months if not more than a year,” he says. Once the system is set up, “Union Carbide could find ways to delay trials of cases,” Kaeske alleges. “I’m afraid that it will bring everything to a grinding halt,” he says. But Tipps says in an interview that Union Carbide didn’t file the Rule 13 motion with the MDL panel or the Rule 11 motions pending before regional presiding judges to delay anything. “We filed those motions because we don’t think the current system — in which we have different sets of rules in different counties, duplicative discovery, inconsistent rulings on the same motions — is as convenient or as just or as efficient as a system that allows a single judge or group of judges to coordinate pretrial proceedings would be,” Tipps says. Tipps told the MDL panel that, under the current system, expert witnesses appear time and time again because there is no good system for deposing witnesses once and making the depositions available for other cases. He also said that standing orders in asbestos cases vary from one county to the next. “It seems to us it would be better if we had a single judge,” Tipps argued. Kaeske urged the panel not to appoint a Rule 13 judge. “This system ain’t broke. Don’t try to fix it, please,” he said. Noting that he has represented 49 plaintiffs in asbestos cases, Kaeske told the panel that he succeeded in resolving 45 of those cases before trial. Resolutions in the other four cases came during the trials, he said. But defense attorney Gary Elliston, a partner in Dallas’ DeHay & Elliston, told the panel that his firm has tried two mesethelioma cases involving asbestos to defense verdicts this year. In both cases, Elliston said, the defense urged a position that should have been decided in pretrial proceedings. He argued that it would provide more judicial economy in the system to have pretrial decisions on such issues rather than having the trial judge making decisions “while the jury is standing in the hallway.” At one point during the hearing, Peeples asked Tipps if he had any suggestions about where the cases should be coordinated. But another judge voiced concerns about Union Carbide’s request. Kidd asked Tipps why he thinks Rule 13 envisages a single judge handling all the cases. The result could be a system that’s no better coordinated than it could be under Rule 11, Kidd said. “My concern is this is a big state,” he added. Tipps said Union Carbide isn’t necessarily saying that one judge should handle all the cases. As an alternative, the company is asking the presiding judges in the eight administrative regions to grant Rule 11 judges so there will be coordination, he said. During the almost-three hour hearing, the MDL panel heard arguments from seven attorneys. Robert E. Thackston, a partner in Hawkins, Parnell & Thackston in Dallas, was among those arguing in favor of the motion to refer the asbestos cases to a Rule 13 judge. Plaintiffs attorneys Russell Budd, a shareholder in Dallas’ Baron & Budd, and Sharon McCally, a shareholder in Houston’s Storey, Moore & McCally, argued against the motion. The MDL panel took the case under advisement and gave no indication when it will make a decision.

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