Cimino v. Raymark Industries, Inc., B-86-0456-CA.

Citation751 F. Supp. 649
Decision Date12 November 1990
Docket NumberNo. B-86-0456-CA.,B-86-0456-CA.
PartiesClaude CIMINO, et al. v. RAYMARK INDUSTRIES, INC., et al.
CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas

Walter Umphrey, Diane Dwight, Greg Thompson, Ken Bailey, Bob Monk, Brent Coon, Chip Ferguson, Tim Ferguson, Jim Mehaffy, Thomas Thomas, Charles Carver, David Brandom, Frank Lamson, Ronald Plessala, Gerald Eddins, James Morris, Nick Palmarozzi and Paul Ferguson, Umphrey, Eddins & Carver, Wayne Reaud, Glenn Morgan, Chris Quinn, Joe Blanks, Richard Clarkson, Alto V. Watson, III, Reaud, Morgan & Quinn, Beaumont, Tex., Ron Motley, Joe Rice, Jackie Rion, Tim Eble, Motley, Loadholt, Richardson & Poole, Charleston, S.C., Roxie A. Huffman, Orange, Tex., for Claude Cimino, et al.

Elizabeth Thompson, Robert Arredondo, Randa Duncan and Jeffrey Mundy, Butler & Binion, Houston, Tex., for Celotex Corp.

Robert S. Daggett, Gary Fergus, James Miller, Bill Levin and Michael Stanley, Brobeck, Phleger & Harrison, San Francisco, Cal., Lyn Stevens, Weller, Wheelus & Green, Beaumont, Tex., Robert Fanning and Phil Brown, Fanning, Harper & Martinson, Dallas, Tex., for Fibreboard.

Michael Baker, Strong, Pipkin, Nelson & Bissell, Beaumont, Tex., for ACL.

Henry Garrard, John Suthers and Bill Harvard, Blasingame, Burch, Garrard & Bryant, PC, Athens, Ga., for Pittsburgh-Corning.

OPINION AND ORDER

ROBERT M. PARKER, Chief Judge.

The odyssey of asbestos litigation in the Eastern District of Texas has now entered its third decade. The trek started by Clarence Borel and Claude Tomplait has been marked by aimless wandering through the legal wilderness. The journey has taken its predicted toll. Raymark, Forty-Eight Insulations, Unarco, Standard Asbestos, Johns-Manville, Eagle-Picher, and now Celotex are bankrupt. Other defendants are clearly in the twilight of their participation. Four hundred and forty-eight members of the class have died waiting for their cases to be heard. The departed companies and plaintiffs have all been victims of a system that has seen a substantial majority of the compensation dollar go to witnesses and lawyers in the form of transaction costs. Transaction costs consumed $.61 of each asbestos-litigation dollar with $.37 going to defendants litigation costs; the plaintiffs receive only $.39 from each litigation dollar. Institute for Civil Justice, Annual Report, April 1, 1990-March 31, 1991 (RAND). The remaining parties have also been victimized by the same costs and the inability of the courts to provide a forum to the litigants.

A review of this litigation with the perspective of hindsight reveals many mistakes and missed opportunities by both this Court and the Court of Appeals. In 1981, Forty-Eight Insulations sought to conduct discovery in preparation for asserting a district wide market share determination among the defendants in order to reduce the costs of continuing expensive, individual discovery and trial on the exposure question, and to more accurately establish apportionment of causation among the defendants. Forty-Eight Insulations abandoned its motion because of pressure from co-defendants. In retrospect, this Court could have saved millions of dollars in unnecessary transaction costs by forcing the issue. Also, in 1981 in an attempt to reduce costs by avoiding repetitive identical trials, the Court by way of issue preclusion found asbestos containing products defective and unreasonably dangerous as a matter of law and further precluded plaintiffs from seeking punitive damages. The Court of Appeals in Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5th Cir.1982), rejected the approach. Again in retrospect, this Court should have recognized the fact that there was a disparity of appreciation for the magnitude of the problem between the trial court and the Court of Appeals. The disparity resulted from the trial court's daily involvement with asbestos litigation and the Court of Appeals' exposure being limited to infrequent appeals. Instead of blindly following Hardy for eight years, this Court should have caused thirty to forty identical appeals to have been processed in order to enhance the awareness level of the Court of Appeals. The defendants' victory in Hardy has cost over four hundred million dollars in increased and unnecessary transaction costs and has preserved for defendants the right to be subjected to punitive damages.

Yet another approach was the Court's establishment of a voluntary ADR program for asbestos cases filed after the cutoff date in Jenkins v. Raymark Industries Inc., 782 F.2d 468 (5th Cir.1986). Most, but not all, defendants elected to participate. The ADR program provided many partial settlements before it was set aside by the Eastern District Court sitting en banc. The ADR program was flawed in three respects. First, under existing law it could not be binding or mandatory. Second, some plaintiffs' counsel were uncooperative and the defendants made it largely ineffective by delay tactics; and third, the defendants' inability to agree among themselves on apportionment of damages doomed the plan.

The Court was then back to the Jenkins procedure. However, Jenkins also was flawed in that it could not accommodate the large number of cases that had accumulated on the Court's docket.

The Court has now witnessed an evolution in defense strategy employed by Pittsburgh-Corning, Fibreboard and Celotex. Early on these defendants typically settled their cases. Pittsburgh-Corning was a prime mover in getting Jenkins settled. A new strategy has now been adopted. Pittsburgh-Corning, Fibreboard and Celotex have adopted a "fortress mentality" and are attempting to avoid liability by obstructing the Court's ability to provide a forum in these cases. It is a strategy that is not unique to East Texas, but is one that is being utilized all across the country. They assert a right to individual trials in each case and assert the right to repeatedly contest in each case every contestable issue involving the same products, the same warnings, and the same conduct. The strategy is a sound one; the defendants know that if the procedure in Cimino is not affirmed, these cases will never be tried.

If the Court could somehow close thirty cases a month, it would take six and one-half years to try these cases and there would be pending over 5,000 untouched cases at the present rate of filing. Transaction costs would be astronomical.

The great challenge presented to the Court by this litigation is to provide a fair and cost effective means of trying large numbers of asbestos cases. It is not enough to chronicle the existence of this problem and to lament congressional inaction. The litigants and the public rightfully expect the courts to be problem solvers.

THE REAL WORLD

In the real world, the scientific community long ago resolved the issues that continue to be litigated by the courts. Every institution, apart from the courts, that has investigated this remarkable natural mineral has concluded that it is inherently dangerous. The asbestos fibers themselves are invisible. They are easily dispersed into the air when asbestos containing products are handled, such as in application or removal. The scientific community agrees that:

1. There is no safe level of exposure.
2. There is a dose/response relationship that manifests itself in either the type disease that one may contract or the length of latency period between exposure and disease manifestation.
3. Asbestos is a competent producing cause of the diseases of mesothelioma, asbestosis, lung cancer, and pleural disease. Unanimity of opinion is not yet achieved regarding gastrointestinal tract cancers although the evidence has satisfied the Surgeon General.
4. Mesothelioma is an untreatable terminal cancer.
5. Asbestosis is a progressive untreatable disease of the lung.

Asbestos has either been banned or declared hazardous by the Occupational Safety and Health Administration, the National Institute for Occupational Safety and Health, the Environmental Protection Agency and the Surgeon General. These agencies have further concluded that all asbestos fiber types pose similar risks, therefore all fiber types are regulated equally.

During the course of the Cimino trial while the question of whether asbestos products were unreasonably dangerous was being litigated once again in Beaumont, the federal courtroom in Tyler was being used by the State Court of Appeals Judges because men in spacesuits were removing asbestos from their chambers.

THE PLAN

The plan is a simple one and reflects this Court's agreement with the comments of Professor Charles Alan Wright:

"I was an ex-officio member of the Advisory Committee on Civil Rules when Rule 23 was amended, which came out with an advisory committee note saying that mass torts are inappropriate for class certification. I thought then that was true. I am profoundly convinced now that that is untrue. Unless we can use the class action and devices built on the class action, our judicial system is not going to be able to cope with the challenges of the mass repetitive wrong."

See H. Newberg, Newberg on Class Actions § 17.06, at 373 (2d ed. 1985).

On February 19, 1990, this Court certified a class under Fed.R.Civ.P. 23(b)(3) consisting of 3,031 plaintiffs with existing cases in the Eastern District of Texas, all claiming an asbestos-related injury or disease resulting from exposure to defendants' asbestos containing insulation products. Seven hundred thirty-three cases were removed as a result of being dismissed, severed or settled. The class consisting of 2,298 plaintiffs went to trial against Pittsburgh-Corning, Fibreboard, Celotex, Carey-Canada, and ACL.

PHASE I

Phase I utilized the same procedures approved in Jenkins v. Raymark Industries, Inc. supra, to resolve all common issues. The issues were whether each asbestos containing insulation product manufactured by each defendant, settling and non-settling, was defective and...

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