As many as 80,000 inactive cases could be dismissed from the dockets of asbestos and silica multidistrict litigation courts, if Gov. Rick Perry signs a bill that both chambers of the Texas Legislature passed unanimously.
House Bill 1325 was an initiative by Texans for Lawsuit Reform, says TLR outside counsel Lee Parsley. Legal organizations that often oppose each other supported HB 1325: the Texas Trial Lawyers Association, Texas Association of Defense Counsel and the Texas Civil Justice League. No one testified against the bill before House or Senate committees.
Parsley notes that TLR worked with plaintiffs’ lawyers on the bill.
"What we worked out with them is: Any claimant with a claim on the docket, that claim will be dismissed, but they can come back in the docket if they ever have an asbestos- or silica-related disease," says Parsley.
Parsley explains that a 2005 law required claimants to meet medical criteria, and the cases of those who didn’t were placed on inactive dockets. Parsley says no one knows how many inactive cases exist, but one MDL judge estimated there are up to 80,000.
The bill directs multidistrict litigation courts handling asbestos- or silica-related injury suits to dismiss any suits pending since Aug. 1, 2005, in which a plaintiff hasn’t filed an expert report. But the dismissal is without prejudice, and if a plaintiff refiles his suit, "the refiled action is treated for purposes of determining the applicable law as if that claimant’s action had never been dismissed," says HB 1325.
It continues, "Nothing in this Act is intended to be regarded as a decision on the merits of a dismissed action. . . . the tort system rights of the dismissed actions are specifically preserved."
Bill author Rep. Doug Miller, R-New Braunfels, says public corporations must list inactive cases in financial documents, which impacts valuations.
Miller says he heard criticism in the legislative process that his bill may harm those with "legitimate" claims. The final bill includes some "give and take," he says.
"I’m not interested in harming anyone who has actually been injured. . . . [T]he good thing is: All these other inactive cases that are just sitting out there aren’t clogging up the system, so the people who are really injured or have died . . . are able to have a more expedited case," he says.
TADC president Dan Worthington says that plaintiffs’ and defense lawyers agreed the inactive cases were in a "no-man’s-land" and they were "going nowhere."
"What happened was: We sat down and developed what we felt was a fair way to get these cases moved," he says, adding that he thinks lawmakers "did a good job in putting this puzzle together."
Parsley notes that the bill is effective in September 2013, but it directs courts to begin dismissing inactive cases starting in September 2014. In the interim, stakeholders must develop a process to identify and dismiss the inactive cases.
"It’s up to the judges to work with the lawyers and try to figure out how to accomplish it," Parsley says.
TTLA vice president Jason Byrd and Texas Civil Justice League general counsel Lisa Kaufman each didn’t immediately return a telephone call seeking comment.