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On Dec. 19, 2002, New York Supreme Court Justice Helen E. Freedman, who presides over all asbestos personal injury and wrongful death cases filed in the five counties of New York City, entered an order staying the litigation of claimants “with minimal or no impairment” and placing these cases on a newly created Deferred Docket “until further order of the Court.” In re New York City Asbestos Litigation, Index No. 40000/88, Order at 2, 7 (Dec. 19, 2002). The Deferred Docket Order sets forth specific medical criteria, such as a claimant’s numerical scores on standard tests for pulmonary impairment, that establish whether an asbestos claim will be placed on the deferred docket. In enacting the order, the court estimated that it would have the effect of staying most of the asbestos-related personal injury actions on its docket, allowing the court to focus its resources — and the resources of the defendants named in these cases — on the smaller number of claims that involve mesothelioma, lung cancer or functionally impairing asbestosis. Recently, however, three plaintiffs whose claims are on the deferred docket have filed a motion challenging the order. The plaintiffs argue that the order effectively abrogates their claims, in contravention of the Takings and Due Process clauses and, moreover, that it effectively re-writes tort law applicable to asbestos litigation in a way that can only be done by the Legislature and thus violates fundamental principles of separation of powers. In response, a brief submitted on behalf of defendants argues that the order merely stays claims and is a responsible exercise of the court’s discretion to manage its docket. The court has not ruled on the plaintiffs’ motion. This article describes the legal landscape that led the court to enter the Deferred Docket Order and summarizes the arguments presented by the plaintiffs and defendants as to its constitutionality. See generally Behrens, et al., “Unimpaired Asbestos Dockets: They Are Constitutional,” 24 Rev. of Lit. 253 (Spring 2005). HOW DID WE GET HERE? Millions of workers in a variety of industries were exposed to asbestos during the 1940s, 1950s, 1960s and 1970s. The latency period for asbestos-related disease is between 20 and 40 years. It has been estimated that, in the United States, exposure to the product will kill several hundred thousand victims before the generations of workers who were exposed to asbestos pass away. Carroll, et al., “Asbestos Litigation” at 16 (RAND Institute for Civil Justice 2005). Many other workers will suffer a variety of nonfatal asbestos-related impairments. Nationwide, more than 730,000 individuals have brought asbestos claims against more than 8,400 defendants through the end of 2002. Id. at xxiv, xxv. The suits have cost defendants and their insurers about $70 billion. Id. at xxvi. Approximately 58 percent of this sum has been spent compensating lawyers for the parties and on other litigation expenses, resulting in net recoveries to plaintiffs of $30 billion. Id. The number of asbestos claims filed annually has increased sharply in recent years. Recent statistics indicate that more than 50,000 new asbestos lawsuits are filed in the United States each year. Id. at 71. More than 90 percent of the claims do not involve mesothelioma or another type of malignant cancer. Id. at 71, 75. A nonmalignant claimant may suffer from serious asbestosis, resulting in a degradation of lung function. More than two-thirds of the nonmalignancy claims, however, are made by plaintiffs with no functional impairment, meaning that their asbestos exposure has not affected their ability to perform activities of daily life. Id. at xxv, 76. These unimpaired claimants typically file their claims based on allegations that a chest X-ray shows a thickening of the tissue that lines the outside of the lung or scarring of lung tissue, conditions that are consistent with exposure to asbestos — and 150 other possible etiologies, including smoking and old age. Brickman, “On the Theory Class’s Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality,” 31 Pepperdine Law Rev. 33, 61 (2004). The United States Supreme Court has repeatedly asked Congress to enact legislation to address what the Court has characterized as the “elephantine mass” of pending and anticipated asbestos claims clogging court dockets throughout the country. Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999). In 2003, the American Bar Association’s House of Delegates enacted a resolution calling for federal legislation that would establish medical criteria for bringing personal injury lawsuits arising from asbestos exposure. The ABA resolution would close the courthouse door to a majority of plaintiffs bringing asbestos-related lawsuits today because most of these plaintiffs suffer from no functional impairment. Although bills have been introduced and actively debated in Congress, to date Congress has been unable to enact any national legislation to address what the Supreme Court has called “today’s asbestos litigation crises.” Coyle, “Asbestos Bill Faces Uphill Battle: Businesses Divided, Trial Lawyers Oppose,” National Law J., June 13, 2005; Karmel & Paden, “Asbestos Litigation: Is a Legislative Solution Finally in the Offing?,” N.Y.L.J. June 24, 2003; Norfolk & Western Ry. v. Ayers, 538 U.S. 135, 166 (2003). DEFERRED DOCKET ORDERS U.S. District Judge Charles Weiner, to whom all asbestos lawsuits filed in federal courts have been transferred for pretrial management since 1991, has ordered the administrative dismissal of claims of unimpaired plaintiffs without prejudice, in orders that provide for tolling of the statute of limitations and allowing the plaintiffs to refile the claims when they can present satisfactory evidence of a compensable asbestos-related disease. In re Asbestos Products Liability Litigation (No. VI), MDL 875, 1996 WL 239863 (E.D.Pa. May 1, 1996); In re Asbestos Products Liability Litigation (No. VI), MDL 875, 2002 US Dist. LEXIS 16590 (EDPa Jan. 14, 2002). Although less draconian than a dismissal of claims, many state courts — including the Commonwealth of Massachusetts; Cook County, Ill.; Baltimore, Md.; Seattle, Wash.; and Madison County, Ill. — have established inactive dockets for unimpaired plaintiffs. RAND, supra n.3, at 26-27. Generally, a plaintiff’s claim can be moved from the inactive docket to the active docket only if the plaintiff presents satisfactory evidence of an asbestos-related malignancy or a pulmonary function test showing a degradation of lung function below a cutoff established by the court’s order. The deferred docket established by Justice Freedman for the asbestos cases pending in New York City follows these models. The order contains specific medical criteria for moving a case from the deferred docket to the active docket. The fact that an action has been filed, however, stops the clock ticking on the statute of limitations and provides an avenue for the plaintiff to take trial preservation depositions, if necessary and if ordered by the court. PLAINTIFFS’ MOTION The three plaintiffs who have challenged the Deferred Docket Order argue that by staying their cases indefinitely, the order effectively dismisses their claims, depriving them of their constitutionally protected property interest in their claims. The plaintiffs’ argument begins by citing New York case law on asbestos personal injury claims to establish that, prior to the Deferred Docket Order, the three plaintiffs had pleaded causes of action that had “accrued” because, under New York law, a “tortious injury” occurs on “the date when the toxic substance invades or is introduced into the body.” Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 454 (1995) (citing Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300 (1936)). The harshness of this rule, in the statute of limitations context, has been ameliorated by CPLR 214-c, enacted in 1986. For example, plaintiffs, citing New York case law, assert that even in the absence of any indication of an asbestos-induced disease, “the clinically demonstrable presence of asbestos fibers in the plaintiff’s body” gives rise to a claim for “fear of developing cancer.” Wolff v. A-One Oil, Inc., 216 A.D.2d 291, 292 (2nd Dept. 1995). The plaintiffs then argue that, since the tort action has accrued for statute of limitations purposes, their tort claims are a species of property protected by the Due Process and Takings clauses. E.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (holding that a litigant’s claim is property protected by the due process clause). According to the plaintiffs, the Deferred Docket Order destroys their property interest in their tort lawsuits because it “abrogates” their right to proceed with the lawsuits. In making this argument, the plaintiffs rely upon a 1994 case from the Louisiana Supreme Court that held that indefinitely postponed civil trials violated Louisiana’s statutory right to a jury trial and access to courts. In re Asbestos Plaintiffs v. Borden, Inc., 630 So.2d 1310 (La. 1994). The plaintiffs’ constitutional property arguments sweep broadly and, were they to be accepted, would imply that not even the New York State Legislature would have the authority to enact a deferred docket law, since a state legislature may not deprive plaintiffs, or anyone else, of property without just compensation. In addition to arguing that their tort claims are immune to abrogation by state action, the plaintiffs also assert that only the state Legislature can change the litigation rules that apply to their claims. The plaintiffs argue that the Deferred Docket Order is the type of policy determination that is reserved exclusively to the Legislature. The plaintiffs cite two recent United States Supreme Court cases that disapproved of innovative actions taken by lower courts to effect mass settlements of asbestos claims because the procedural devices they employed violated the Federal Rules of Civil Procedure. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (rejecting class action settlement where class included two groups whose interests were not aligned: absent members who were diagnosed with injuries from asbestos exposure and members who were exposed to asbestos but not yet diagnosed); Ortiz, v. Fibreboard Corp., 527 U.S. 815 (1999) (rejecting class action settlement because pre-1959 and post-1059 claimants had “disparate interests” because the defendant had an insurance policy that expired in 1959). The plaintiffs also cite the New York State Constitution for the proposition that it is the Legislature that has the “power to alter and regulate the jurisdiction and proceedings in law and in equity … ” N.Y.S. Const., Art. VI, � 30. DEFENDANTS’ OPPOSITION The defendants take issue with the plaintiffs’ premise that the Deferred Docket Order has abrogated the plaintiffs’ claims. According to the defendants, the order merely stays the claims until further order of the court. The defendants argue that under any system there will be a queue for trial, since it is impossible for the 35,000 pending asbestos lawsuits in New York City to be tried to juries within the immediate future. Under any queuing system, one of the 35,000 plaintiffs will be number 1 in the queue, one will be number 35,000 and 34,998 will fall somewhere in between. According to the defendants, it is not the Deferred Docket Order that has delayed the trial of the claims that the court has placed on the deferred docket but the sheer number of claims that have been filed with the court. The issue before the court is one addressed to its sound discretion — in light of the circumstances presented to it, how should the court manage its docket to serve the interests of justice? The defendants contend that it is eminently rational for the court to place unimpaired and minimally impaired plaintiffs at the end of the queue, to allow the court and the parties to focus their efforts on the most-injured plaintiffs that are likely to have the strongest claims and the greatest need for compensation. This is particularly the case, the defendants argue, because most of the unimpaired plaintiffs on the deferred docket have not been diagnosed with an asbestos-related disease by their treating physician, because they filed their claim only after their attorneys were provided with X-ray readings from for-profit mass-screening companies that are notoriously unreliable. Brickman, supra, at 62-137; ABA Commission on Asbestos Litigation Report to the House of Delegates at 13 (February 2003); cf. In re Silica Products Liability Litigation, 2005 WL 1593936 (S.D.Tex. 2005) (criticizing screening companies in silica litigation). As to the plaintiffs’ legal arguments, the defendants assert that they all rest on the faulty premise that the Deferred Docket Order dismissed plaintiffs’ claims. Defendants argue that none of the claims were dismissed; rather, they were merely stayed until further order of the court so as to allow claims held by plaintiffs with more pressing injuries to be tried first. The defendants also cite case law from other jurisdictions upholding case-management orders similar to the Deferred Docket Order as a valid exercise of a trial court’s inherent authority to manage its docket and cite cases from New York courts holding that trial courts have the inherent authority to control their calendars. E.g., In re Asbestos Cases, 586 N.E.2d 521, 522 (Ill. App. Ct. 1991); In re Cuyahoga County Asbestos Cases, 713 N.E.2d 20, 25 (Ohio Ct. App. 1998); I n re Asbestos Pers. Injury & Wrongful Death Asbestos Cases, No. 9234501 (Cir. Ct. Baltimore City, Md. May 9, 2001); Plachte v Bancroft Inc., 3 A.D.2d 437, 438 (1st Dept. 1957); Carlton Associates v. Bayne, 191 Misc.2d 54, 56-57 (Sup. Ct. Kings County 2002). This authority is codified in CPLR 3403(a)(3), which grants a trial preference to “an action in which the interests of justice will be served by an early trial.” As to the plaintiffs’ contention that their protected property interest has been taken away without due process and without just compensation, the defendants argue that the exercise of judicial discretion in managing the court’s docket is not a taking, because plaintiffs have no right to have their case placed ahead of other, more seriously injured plaintiffs, on the trial queue. The defendants also argue that judicial action in ruling upon or managing tort claims is of a different character than state legislation. For example, the law of products liability, upon which the plaintiffs rely for many of their claims, has undergone continual evolution over the years, almost all of which has favored plaintiffs. E.g., Codling v. Paglia, 32 N.Y.2d 330 (1973) (eliminating privity in products cases); cf. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 513-14 (1989) (discussing Legislature’s revival of toxic tort claims). These retroactively applied innovations do not result in a “taking” of defendant’s property, in the constitutional sense. Similarly, a case-management order that accelerates the disposition of the claims of injured asbestos plaintiffs by delaying the adjudication of unimpaired and minimally impaired plaintiffs does not take their property either. CONCLUSION There are few motions that have the potential to affect the management of 35,000 cases pending in the supreme courts of New York City. The plaintiffs’ challenge to the Deferred Docket Order, however, is one of them, and it will be closely watched not only by the lawyers involved in New York City asbestos litigation but by courts in other jurisdictions struggling to cope with the “elephantine mass.” Philip E. Karmel and Peter R. Paden are partners with Bryan Cave of New York, N.Y. Disclosure: Bryan Cave represents a number of defendants in asbestos lawsuits.

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