Court RulingThe United States Supreme Court declined a petition for certiorari on Monday, January 9, in the matter of Ascira Partners, LLC v. Daniel, dashing hopes that the Justices would resolve conflicting federal law on jurisdiction under the Class Action Fairness Act. The petition involved a massive medical malpractice action in Ohio which originated from medical care provided by a single doctor working at multiple medical care facilities. Originally, plaintiffs filed 226 individual lawsuits against the doctor and various medical providers in several different Ohio counties before the cases were consolidated before a single judge. At that point, the various plaintiffs requested that the court set all of the cases for one combined trial, or several smaller group trials. The court ultimately set four smaller trials and one large group trial which combined the claims of over 400 plaintiffs into a single case.

Following this consolidation, defendants sought to have the case removed from Ohio state court to federal court under 28 U.S.C. § 1332(d), otherwise known as the “Class Action Fairness Act.” Among other provisions, this statute gives federal courts jurisdiction over certain monetary relief claims of 100 or more persons so long as the plaintiffs’ claims involve common questions of law or fact. The Ohio state court, however, determined that the case should stay in state court, as the “100 plaintiff” element of the statute was not satisfied. Under the state court’s view, federal jurisdiction under the statute is proper only when a single complaint contains at least 100 plaintiffs, not when where multiple suits are combined for trial to encompass the claims of more than 100 plaintiffs. Defendants asked the federal Sixth Circuit Court of Appeals to review this interpretation, arguing that the Seventh, Eighth, and Ninth Circuits had all previously determined exactly the opposite, that the 100 plaintiff threshold was, in fact, satisfied when plaintiffs decide to combine multiple cases for trial. When the Sixth Circuit implicitly adopted the state court’s interpretation by declining to weigh in, defendants sought review from the United States Supreme Court.

These “Circuit splits”, where Circuit Courts disagree on the interpretation of the law, are not uncommon. And it is certainly not uncommon for the Supreme Court to deny a party’s petition for review. The Supreme Court receives approximately 7,000 petitions each year, and accepts roughly 80 for oral argument and review. The Supreme Court’s denial of review in Ascira Parnters is nevertheless significant for mass tort defendants across the country.

It is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to both parties.  Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses.  These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more
Continue Reading Class Dismissed: Supreme Court Declines to Resolve Circuit Split on Class Action Jurisdiction

Ben Franklin famously warned that “you may delay, but time will not, and lost time is never found again.” These words of wisdom appear to be lost on the Illinois state legislature, which recently abolished the ten-year statute of repose for personal injury claims related to asbestos exposure under 735 ILCS 5/13-214. Far from an esoteric legal issue, the amendment has become the front line in the latest battle of the national divide on the issue of tort reform. Some have warned that the Madison County Illinois asbestos docket, already one of the busiest and most plaintiff friendly in the country, will see a wave of new litigation from plaintiffs who missed the deadline to bring suit. The change to the statute however, may not be the seismic shift that some have forecast.

The statute in question, commonly known as the “construction statute,” previously held that “no action based upon tort…may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” The amendment adds a subsection which reads that the limitation does not apply to “an action that is based on personal injury…resulting from the discharge into the environment of asbestos.”

This legislative action hasn’t abolished the statute of limitations in all asbestos-related claims. It has only abolished the ten-year statute of repose for claims that fall under the limited ambit of the construction statute. In other words, defendants who are commonly named in asbestos suits won’t likely see a sizeable increase in claims unless they are also involved in the construction industry.

For those who previously fell under the protection of the statute, however, the change could be as dramatic as advertised. Given the long latency period for many asbestos-related diseases, contractors, engineers and architects were often immune from suit, as some persons exposed to asbestos on a given job site may not discover their condition until well after the 10 year statute of repose had expired. With the amendment, these Defendants may find themselves named in lawsuits as often as manufacturers of asbestos-containing products.  Fortunately for them, many cases filed in Madison County arise out of exposures from other states, and in those cases, the statute will not likely apply.

Consistent with the abolition of the statute of repose, the state also recently passed a law reducing civil juries from twelve to six members. This is a shift which generally favors Plaintiffs as smaller groups are more likely to be influenced by emotion or a strong personality in the jury room.

Embedded is a link to the American Tort Reform Foundation Judicial Hellholes® Listing.  We’ll be watching to see where Illinois falls on the next list.
Continue Reading Not Satisfied with its 5th Place Finish in the American Tort Reform Foundation Judicial Hellholes® Listing, Illinois Makes A Push For Number One