Overview of and Links to Asbestos Case Management Orders in the United States
Case management orders (CMOs) are an important part of managing mass tort litigation. CMOs arise because mass tort cases tend to cluster in groups in particular courts. The forum court typically enters a case management order after negotiation between counsel for each side. Years ago, case management orders were novel and negotiations sometimes were contentious. Today, many of the procedures are well accepted, and so disputes and debates are often limited to specific points, such as whether the time to trial should be 10 months or 13 months.
This blog post collects some but not all CMOs from asbestos cases in variois forums in the United States. We will happily add additional CMOs if you send the CMO to firstname.lastname@example.org, preferably with a summary in the style below.
Note also that CMOs tend to evolve, as do related court procedures. Accordingly, a current CMO is not necessarily the only or final word on case management in a particular jurisdiction. Defense side lawyer at Shook Hardy recently co-authored an article on recent changes in some asbestos case management orders. The article appears in the May 16, 2012, issue of Mealey’s Litigation Report: Asbestos. The article is titled “Asbestos Litigation ‘Magnet’ Courts Alter Processes: More Changes on the Horizon,” and provides an overview of changes adopted or pending in several states’ courts. The changes vary by jurisdiction, and include new calendaring procedures, coordination of all asbestos matters before a single judge and a requirement that asbestos damage awards be offset by amounts plaintiffs receive under asbestos bankruptcy trusts. The article is available at no charge on Shook Hardy’s website – here.
Alameda County: The order is known as Case Management Order Asbestos.
Los Angeles: The CMO process is essentially managed through a standardized case management order entered in each case. The order is titled Trial Setting Order for Asbestos Litigation Preference Cases.
A pair of orders are relevant. Standing Order No. 1 (amended April 29, 2011) prescribes many of the specifics. General Scheduling Order No. 1 (amended March 9, 2011) provides the time schedule for moving forward to trial.
Standing Order No. 1 includes terms specifically requiring plaintiff firms to produce claim forms submitted to asbestos trusts. Thus, section 7.(l) states that the firm is required to produce:
“Copies of all claim forms and related materials related to any claims made by plaintiff to any insurance carrier, employer, governmental agency, trust,entity or person related to or in any way involved with asbestos claims, or other agency, entity, or person wherein plaintiff directly or indirectly asserts, suggests, advocates, or requests investigation into potential entitlement to compensation or benefits of any type as a result of exposure to and/or injury related to asbestos. This shall include, but is not limited to, copies of all materials related to applications for Social Security benefits, worker’s compensation benefits, military service benefits,disability benefits, and claims made to trusts for bankrupt asbestos litigation defendants.”
Cook County has a May 4, 2009 order with attached exhibits that was entered to consolidate and supersede the many prior CMO iterations entered by various presiding asbestos judges over the years. The order is titled Master Case Management Order No. 19. Exhibit A is “Deemed Counterclaim.” Exhibit B is the generic master asbestos discovery that was attached in an effort to provide more transparency regarding the process and requirements to new litigants. Exhibit C is a generic discovery schedule.
Madison County has a comprehensive 73-page order with attached exhibits that applies to all asbestos cases on file or to be filed in the future. The order is titled Standing Case Management Order for All Asbestos Personal Injury Cases. Exhibit 1 is “Medicare Reporting Forms.” Exhibit 2 is “Standardized Interrogatories.” Exhibit 3 is “Standardized Requests for Production.” Exhibit 4 is “Standardized Jury Questionnaire.” Exhibit 5 is “Standardized Jury Questionnaire for Lung Cancer Cases.”
Massachusetts has used a series of “Pre-trial Order.” The governing order of May 2012 is Pre-Trial Order No. 9, a 48-page behemoth with various attached exhibits. Exhibit B is an “Acknowledgment of Service.” Exhibit C is “Model Cross-Claim of Defendants.” Exhibit D is “Affidavit of Notice of Claim.” Exhibit E is “Statement Requesting Transfer to the Inactive Asbestos Docket.” Exhibit F is “Plaintiff’s Disclosure Form.” Exhibit G is the “Massachusetts Asbestos Litigation Trial Preparation Timeline.”
Massachusetts also has a proposed series of Addendums to Pre-Trial Order No. 9. They are here. Most are related to Medicare. Proposed new Section XIII sets out trial months and trial lists.
Since September 1996, the NYCAL CMO order has required: ‘‘Any plaintiff who intends to file a proof of claim form with any bankrupt entity or trust shall do so no later than ten (10) days after plaintiff’s case is designated in a FIFO Trial Cluster, except in the in extremis cases in which the proof of claim form shall be filed no later than ninety (90) days before trial.’’
In December 2011, Special Master Pacheco issued a recommendation enforcing the trust disclosure provisions after defendants claimed the Weitzfirm had not complied with its discovery obligations under the CMO.61 On April 18, 2012, Administrative Judge Sherry Klein Heitler heard oral argument on the discoverability of proof of claim forms in the NYCAL.
Allegheny County has a Case Management Order for Asbestos Cases Placed at Issue by Plaintiff and a Case Management Order for Asbestos Cases Pending Three Years or More That Have Not Been Placed at Issue.
Cambria County has an Order dated November 30, 2011
Northampton County has a September 12, 2011 Order of Court.
Kanawha County, West Virginia has a detailed 36-page order titled 2012 Asbestos Case Management Order with Attached Exhibits. Appendix A is “West Virginia County Listing File & Serve Abbreviations.” Appendix B is a chart detailing deadlines and descriptions of activity. Appendix C is [missing]. Appendix D is “Plaintiff’s Fact Sheet.” Appendix E is “Witness Disclosure.” Appendix F is “Authorization for Employment Information.”
There also is a January 3, 2012 Order Amending Case Management Order. This order deals with substituted plaintiffs.