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Lawyers are gearing up for a constitutional challenge to a new state law that could remove nearly 3,000 asbestos cases from Fulton County dockets. The law was designed to stem the tide of out-of-state asbestos claims being filed in Georgia, said its primary sponsor, Rep. David E. Ralston, R-Blue Ridge.”We were seeing a huge number of people that were nonresidents of Georgia and that had not been exposed to asbestos or silica in Georgia who were suing in Georgia courts,” said Ralston. “That was a trend that was disturbing not only to me, but to others.”The vast majority of asbestos cases in Georgia have been filed in Fulton, with about 2,200 pending in state court before Judge Henry M. Newkirk and about 1,000 pending in superior court before Chief Judge Doris L. Downs, attorneys involved in the cases said. They estimated that out-of-state plaintiffs who were not exposed to asbestos in Georgia filed approximately 90 percent of those cases.A lawyer defending the asbestos suits, E. Elaine Shofner of Hawkins & Parnell, noted that claims in Georgia courts have originated from Alabama, North Carolina, Wisconsin, Hawaii, Texas, Nebraska and Pennsylvania. “We became a dumping ground,” she said. One plaintiffs’ attorney, David P. Bevon of Motley Rice in Mount Pleasant, S.C., said out-of-state plaintiffs filed in Georgia because the law here was more favorable than in other states for injuries that occurred years or even decades ago. He also noted that some defendants, such as Georgia-Pacific, are based here. The new law, signed by Gov. Sonny Perdue on April 12 and codified at chapter 51-14 of the Georgia Code, prevents future suits from out-of-state plaintiffs. But because it applies retroactively, the constitutional fight is over the impact the law could have on cases that already have been filed.The law added a host of new requirements for asbestos claims to survive in the state’s courts. Among the new rules, a plaintiff must present “prima facie evidence of physical impairment” that shows “to a reasonable degree of certainty” that exposure to asbestos was “a substantial contributing factor” to the plaintiff’s injuries. Plaintiffs’ attorneys have until Oct. 19 — or 180 days from the enactment of the bill — to file affidavits establishing the prima facie evidence. The law requires the evidence to come from a “qualified physician,” defined as a doctor who spends no more than 10 percent of his professional practice time on litigation and earns no more than 20 percent of his revenue from such work. Bevon said plaintiffs’ attorneys have had little success in establishing prima facie evidence in accordance with the new law, estimating that 98 percent of asbestos cases will not be able to meet the new standard. “It’s just part of the wave of tort reform,” he said. Bevon explained that the “qualified physician” provision of the law is most troublesome to plaintiffs’ counsel. “It’s basically limited to a treating doctor,” he said. “But a treating doctor, in almost all cases, isn’t qualified to give a diagnosis of an asbestos injury and then take the next step of attributing causation to asbestos exposure.”Even among the most serious cases where the plaintiffs developed mesothelioma — a rare, terminal cancer for which asbestos is the only known cause — the lawyers are coming up short. Bevon said he had somewhere between 100 and 150 cancer asbestos cases in Fulton, and only four can meet the prima facie requirements. Another plaintiffs’ firm, Baron & Budd of Dallas, has approximately 100 mesothelioma cases pending before Downs and has succeeded in obtaining only 20 affidavits from qualified physicians who were willing to attribute the cancer to asbestos exposure, according to a letter to the judge from Baron & Budd attorney John J. Spillane. In addition, Baron & Budd represents about 500 clients who developed a noncancerous lung condition known as asbestosis. According to a brief submitted by the firm, “all but a scant handful of those claims will suffer dismissal.”Lawyers came before Newkirk on Sept. 7 on the plaintiffs’ motion to declare the prima facie requirement “substantive in nature” — in that it creates additional obligations for the plaintiffs with pending claims — and therefore should be inapplicable to cases filed prior to the enactment of the statute. For cases filed by out-of-state plaintiffs, lawyers filed several motions urging the judge to use law from wherever the claims originated.Newkirk issued his order two days later, finding the law to be “procedural” as opposed to substantive, saying that the legislation “merely sets forth the method by which plaintiffs in asbestos cases may bring or maintain their causes of action in Georgia.”Newkirk added that the law was intended to apply to all asbestos cases in Georgia — past and future. He also said that interpreting the law differently for out-of-state plaintiffs would “grossly subvert the public policy of this state because it would provide that Georgia residents could be treated differently than non-Georgia residents.”The plaintiffs’ counsel in state court and superior court now have filed constitutional challenges in their respective venues seeking to have the pending cases made immune from the new law’s requirements. Downs will conduct a hearing on the motion on Sept. 30; Newkirk has not scheduled one yet. A similar law passed in 2004 in Ohio was declared unconstitutional as it applied to pending asbestos cases, according to a motion filed by Bevon.

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