August 2011

Much like Judge Robreno, currently in charge of the Federal MDL asbestos docket in the Eastern District of Pennsylvania, Judge Ableman of the Delaware Superior Court has made increasing the efficiency of the Delaware asbestos docket a goal since being put in charge of asbestos litigation in Delaware in May of 2010.  One of the areas most targeted by Judge Ableman is summary judgment motion practice, which has undergone significant changes over the past year.  In particular, in March of this year, Judge Ableman amended the Standing Order that sets forth a number of procedural rules that govern the asbestos docket.  The amendments were directed, in part, to reducing the number of motions for summary judgment filed with the Court.  Judge Ableman made clear that, going forward, she expected to receive only good-faith motions and oppositions from counsel.

The most notable change since the Standing Order was revised in March is the drop in the number of motions submitted to the Court.  For the four monthly hearing dates prior to the March Standing Order amendments, some 45 motions on average were submitted to the Court for consideration.  Since the amendments, the average number of motions submitted has been cut by two-thirds, dropping to approximately 15 per trial group.

However, the changes to the summary judgment motion practice in Delaware have also brought greater efficiency to the asbestos docket and allowed for quicker and cheaper resolutions of cases.  This increased efficiency that Judge Ableman has brought to the process is no more visible than in the most recent round of motions, which were filed in cases scheduled for trial in September of 2011.

For the September trial group, 22 motions were submitted to the Court on July 1.  Of the 22 motions submitted:

  • 9 motions were decided on the papers;
  • 7 motions were mooted by the resolution of the case as to the filing party;
  • 2 motions were withdrawn by defense counsel;
  • 2 oppositions were withdrawn by plaintiff’s counsel; and
  • 2 motions were deferred by the Court pending expert depositions.

In sum, all of the motions filed (with the exception of the two deferred motions) were resolved, in one way or the other, without the need for oral argument.  By contrast, the three previous monthly hearings have all gone forward with at least one motion, but usually much more than that, being argued in front of the Court.

With any luck, this trend will continue.  Increasing the pace at which matters can be resolved and addressed by the Court allows for reduced transactional costs; something that both plaintiffs and defendants alike should embrace.

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The financial crisis and subsequent fallout has been widely publicized, and now the effects are beginning to reverberate in courts across the country.  In many jurisdictions deep cuts to state budgets have led to layoffs, furlough days, vacant judicial positions, and even courthouse closings.  These cuts threaten one of the pillars of the American justice system—the right to a fair and speedy trial.  Recently, the Massachusetts Supreme Judicial Court (“SJC”) took the unusual step of publicly criticizing Governor Deval Patrick after he approved a budget which the Court says will force them to close courthouses and lay off staff.  Roderick L. Ireland, Chief Justice of the Massachusetts Supreme Judicial Court, and Robert A. Mulligan, Chief Justice for Administration and Management, remarked that the new budget will jeopardize defendants’ Constitutional right to a speedy trial, and undermine the quality of courthouse services. According to the SJC and Mulligan, Massachusetts courts have lost over 1,100 employees in recent years and more than 60 percent of the courts are staffed below the level necessary to ensure the prompt delivery of justice.

Meanwhile in California, all courts are currently closed one day a month as a cost-saving measure. At least 19 of 580 Los Angeles County courtrooms were closed and as many as 50 more are to be closed by September. In San Francisco, 200 Superior Court employees, more than 40% of the staff, will be laid off on September 30, and many courtrooms are to be closed by October 3.

Significantly, in California, the law gives priority to criminal cases, so nearly all the shuttered courtrooms will be those currently devoted to civil cases.  It remains to be seen what impact this will have on litigation in California, but it is likely that many plaintiff’s firm will begin “venue shopping” for counties least affected by the cuts.

Below are several other examples of budget cuts which are likely to have an adverse impact on the courts in various states:

  • New Hampshire- As many as 11 more furlough days over the remainder of 2011.  Court staffs have been cut by 10% over the past year.
  • New Jersey- $25 million budget cuts, modernization of court houses state wide put on hold.
  • Minnesota- Hiring freeze in effect, judicial positions left vacant. Court hours were cut, and judicial districts consolidated.
  • Florida- Hiring freeze and layoffs of court employees. Pay cuts for judges and other elected officials.

We will continue to monitor budget cuts nationwide and follow up with a report once the practical impact of these cuts on civil litigation are known.
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Co-authored by Brian Gross

The Texas legislature recently enacted a major tort reform law which would make the losing party pay the opposing party’s “costs and reasonable and necessary attorney’s fees.”  In its true form, this rule, also known as the “English Rule,” requires that a losing party in litigation pay the fees and the costs of the prevailing party.  To date, this law is employed in its “pure” form only in Alaska, but it is common in much of Europe, Great Britain and Canada.  Although the final version of the Texas law differs substantially from the English Rule in that it applies only to a party who prevails on a motion to dismiss, and not to a party who prevails at summary judgment or trial, it may signal a growing trend to punish those who unnecessarily overburden limited court resources.  The current budget crises faced by courts across the country provide strong support for the English Rule, at least in some form, in an effort to streamline courts’ dockets.  And although Texas just recently statutorily adopted a form of the English Rule for all tort cases, a form of the English Rule has apparently already made its way into asbestos litigation.

New Jersey Appellate Court Makes Losing Asbestos Defendant Pay Plaintiff’s Attorney Fees

Last month, a New Jersey Appeals Court ruled that an asbestos defendant who failed to reach settlement, and subsequently lost at trial, is responsible to pay all of plaintiff’s attorney fee related to the trial and appeal.  In Buttitta v. Allied-Signal Inc., et al., No. A-6117-09T4, 2011 WL 3180455 (N.J. Super. Ct. App. Div. July 28, 2011), Susan Buttitta filed a wrongful death lawsuit against multiple defendants in which she alleged that her husband’s mesothelioma was caused by his exposure to asbestos-containing products while employed in a General Motors Corporation warehouse.  Plaintiffs sued several companies, including Asbestos Corporation Ltd. (“ACL”), a Quebec-based asbestos mining company.

Prior to trial, Buttitta settled with or dismissed all of the defendants, with the exception of ACL and Borg-Warner Corp.  Plaintiff subsequently made a settlement demand of $10 million to the two companies, which each rejected prior to trial. Ultimately, the jury returned a verdict of approximately $30 million against the two remaining defendants.

ACL unsuccessfully appealed the verdict, and plaintiff then moved for reimbursement of the costs of trial and appeal, including her attorneys fees and expenses.  The trial judge granted Buttitta’s motion, and awarded $655,000 in attorney fees and $59,000 in expenses against ACL.  ACL appealed.  On appeal, the New Jersey Appellate Court held that New Jersey state law provides for the imposition of reasonable attorneys fees against a losing party that declines to settle a case before trial, and is applicable when a final judgment is more than 120% of the amount of the settlement offer.  The Appeals Court concluded that the plain language of the law required finding ACL responsible for all of Buttitta’s reasonable costs and attorneys fees because of its refusal to
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