Update of July 14 to May 7 post reposted below: The National Law Journal includes a July 13 article updating on the case below. The update is that some defendants sought interlocutor appellate review of the trial judge’s order in which he “reluctantly” declined to bar a deposition transcript created under the circumstances described below. Thus far, review has been declined by California’s intermediate appellate court and by the California Supreme Court. The defendants, however, will continue to press the issue through other appeals and when it arises in other cases.

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May 7 post

More and more legal news outlets have picked up on some parts of the asbestos litigation gamesmanship. Walter Olson’s Pointoflaw uses the humorous (for lawyers) title “Asbestos: The Texas- California Two-Step” to link back to a California blog article (from Cal Biz Lit) that links to and quotes from a California trial judge’s opinion (available here in full text) sharply criticizing the Waters & Kraus plaintiff’s firm for its litigation tactics. Specifically, Judge Munoz criticized the firm for at least 10 times filing cases in Texas and then refiling in California after the plaintiff has been deposed in Texas. The same opinion was picked up in Legal News Line and today by law.com via the National Law Journal, and the ABA Journal online.

Why do plaintiff’s play that game? Because it helps the plaintiff avoid meaningful scrutiny in depositions. How/why is that true? Because some states, including Texas and Illinois, have rules that limit depositions to six hours. Specifically, as Judge Munoz explained in his opinion:

“Plaintiff’s law firm, which is a multi-state firm, has, in at least nine other cases, filed cases in Texas which were then dismissed after the plaintiffs’ deposition had been take.”

The reason for this procedure is apparently because under Texas law the deposition is severely limited to six hours per side. Additionally, under Texas law the failure to mention the defendant’s product is a basis for summary judgment. The law in this state is to the contrary.”

“It is the court’s opinion that the filing of the Texas action was deliberately done to prevent the defendants from having adequate discovery and to prevent the filing of motions for summary judgment because of the California rule requiring specific questions about product identification.”

Judge Munoz is correct that the tactic can and often does prevent a meaningful defense. Why is that – shouldn’t six hours be enough? No, not even close in many cases. Why? Because in many cases, the plaintiff sues dozens of defendants and makes claims involving alleged “exposure” at dozens or hundreds of job sites. For example, the plaintiffs often are tradesmen (say an electrician or a pipefitter) who worked for a business that serviced dozens of businesses large and small (for example, stand alone power plants and power generating facilities at factories or refineries). That person may well have worked at dozen or more facilities a year, and may well claim that he was “exposed” to asbestos at each such site. In that situation, the defense lawyers need to carefully depose the witness to prove that in fact there was no actual inhalation of fibers from a specific job site. That proof is gathered by asking about the specifics of the work at the job site.

For example, in a typical deposition, the defense lawyer may be given a job site list from the plaintiff. The lead lawyer taking the deposition will then say: “I see you have listed the Acme Manufacturing Plant as a job site at which you claim you were exposed to asbestos. Please tell me about why you think you were exposed there?

The plaintiff may well respond: “I think I was exposed at the XYZ company because I brought in electric lines to a circuit breaker, and there were big pumps about 30 feet away from me. I assume the pumps contained gaskets that contained asbestos, and I assume the pipes leading in and out of the pumps were insulated with asbestos.”

Once that testimony is on the record, then the defense lawyer for the gasket company needs to question witness in detail to find out the specifics of the pumps (who made them, what he knows about them) and then needs to take testimony to prove that in fact there was no actual “exposure” because, for example, 1) the plaintiff never touched the pump, and 2) the gaskets, if any are inside the pump, and the pumps were operating at the time of the plaintiff’s work, so that fluid was flowing through the pumps and therefore any gaskets were wet and incapable of releasing a respirable asbestos fiber. Doing that takes time, but it has to be done if the company wants to obtain summary judgment when that “exposure” (or a few like that) are the only basis for potential liability. So, for a plaintiff with a long job site history, the deposition process may take literally several days if the testimony is to be taken well so that defense lawyers can make a record that proves up a solid defense for trial for each defendant in the position of the gaskety company. The plaintiff’s lawyers, however, seek to limit the depositions to six hours to avoid the strong defenses, and of course will say it’s their job to zealously represent their clients.

Isn’t this all silly – shouldn’t the plaintiff refrain from putting at issue job sites and alleged “exposures” where realistic lawyers who know their science also know that there was no actual inhalation at all of asbestos fibers or no meaningful inhalation? Yes, but that’s not what happening in the tort system. Instead, the problem is that some but not all plaintiff’s lawyers are pursing the “any fiber fiber counts” theory, supported by a small cadre of experts who will testify to their opinion that “any and all fibers add to the risk. “‘ Some courts have rejected that theory, but others let it go to the jury and others do not yet have concrete appellate case law. For much more detail on the “any fiber” or “every fiber” theory, the experts, and the case law, look to Mark Behren’s very recent article “What’s New in Asbestos Litigation” at pages 528-531.

The deposition time problem is made worse by the plaintiff’s who claims that the pump maker should be held liable for failing to warn the plaintiff about the insulation that someone else installed over the pipes that connect to the pump . That legal theory also is popular in asbestos litigation today – for more specifics on the theory and the rulings to date, once again see Mark’s article, but this time at pages 542-545. Here, though, the point is not to debate the merit of the legal theory. The point instead is to explain that because of that theory, the pump maker’s lawyer needs to spend time questioning the witness about the insulation in some detail. E.g. does he know the age of the insulation (in the US, it won’t have asbestos if it ws installed after about 1973, absent unusual facts), does he “know” if it contained asbestos (the answer should be no), was the insulation ripped or torn (properly jacketed insulation does not release fibers) , was anyone working on the insulation (could release fibers), did he touch the insulation (he probably did not but that’s needed for the summary judgment motion). The result is that a six hour time limit often times denies a defendant its due process right to a meaningful opportunity to gather evidence and have a meaningful trial.

Some but not all plaintiff’s lawyers typically will respond in at least two ways. First, they will say that some defendants send to depositions some ill-prepared defense lawyers who ask stupid questions because some insurers and some clients are too short-sighted to pay for well-trained lawyers who know their facts and science. That complaint is sometimes valid. Indeed, I’ve seen it happen. But that’s NOT the fault of the well-prepared gasket company lawyer who must be accorded the due process chance to gather meaningful evidence to protect her client. The remedy instead is for the plaintiff’s lawyer to bring a motion for protective order specific to that lawyer or defendant.

Second, plaintiff’s lawyers will complain that some defendants play their own asbestos litigation games, such as removing cases to federal court just before trial of a dying mesothelioma victim, with the result being the loss of the trial date and the plaintiff’s death before the trial is rescheduled. I’m told that has in fact occurred. But, once again, that’s not the fault of all defendants and it’s not relevant to the question of deposition time limits.

Finally, some will say that the problem is that the plaintiff came in and hired counsel just before death and there is not enough time. That can happen, but it’s getting harder and harder to justify or believe that excuse in this age of non-stop mesothelioma ads online and on tv. And, in any event, when counsel was hired does not control the number of hours needed for deposition.

What steps would help to end this game. There is no one answer. One step would be an asbestos case-management order that automatically grants an extension of the deposition time in any case involving more than 5 defendants and 10 job sites. Another good step would be to have an activist trial judge who understands the science and the law, and who will take calls from depositions to block time-wasting by anyone, and who will ensure that each defendant receives a meaningful opportunity to prepare its defense.