Ex Parte Flexible Products Co.

• Decision Date: 03 June 2005
• Docket Number: 1040450.
• Citation: 915 So.2d 34
• Court: Alabama Supreme Court
• Parties: Ex parte FLEXIBLE PRODUCTS COMPANY et al. In re Randy Wade Bice et al. v. Micon Products International, Inc., et al. Robert W. Acklin, Jr., et al. v. Micon Products International, Inc., et al. Richard G. Abernathy et al. v. Micon Products International, Inc., et al.

Page 34

915 So.2d 34

Ex parte FLEXIBLE PRODUCTS COMPANY et al.

In re Randy Wade Bice et al. v. Micon Products International, Inc., et al.

Robert W. Acklin, Jr., et al. v. Micon Products International, Inc., et al.

Richard G. Abernathy et al. v. Micon Products International, Inc., et al.

1040450.

Supreme Court of Alabama.

June 3, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel J. Reynolds, Jr., Bessemer; and Alfred F. Smith, Jr., of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for petitioner Flexible Products Company.

C.C. Torbert, Jr., Fournier J. Gale, and H. Thomas Wells, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for petitioner Dow Chemical Company.

R. Marcus Givhan and Mary Brunson Whatley of Johnston, Barton, Proctor & Powell, LLP, Birmingham; and Michael R. Borasky of Eckert, Seamans, Cherin & Mellott, LLC, Pittsburgh, Pennsylvania, for petitioner Bayer MaterialScience, LLC.

Warren B. Lightfoot and Wynn M. Shuford of Lightfoot, Franklin & White, LLC, Birmingham, for petitioner BASF.

John W. Dodson and Jinny M. Ray of Ferguson, Frost & Dodson, L.L.P., Birmingham, for petitioners Earth Support Services d/b/a Micon, Inc., and Micon Products International, Inc.

David A. Lee and Alex Wyatt of Parsons, Lee & Juliano, P.C., Birmingham, for petitioner Sub-Technical.

Donald D. Lusk and Leslie A. Caldwell, Birmingham, for petitioner Green Mountain International, Inc.

James M. Smith of Stockham & Stockham, P.C., Birmingham, for petitioner RHH Foam Systems, Inc.

R. Larry Bradford of Bradford & Donahue, P.C., Birmingham, for petitioner Supply, Inc., and Industrial Mining Supply.

Donald W. Stewart, Anniston, for respondent.

Matthew C. McDonald and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for amicus curiae Alabama Civil Justice Reform Committee, in support of the petitioners.

Deborah A. Smith of Christian & Small, LLP, Birmingham; Robert A. Bartlett and Nicholas G. Walker of McKenna Long & Aldridge, LLP, Atlanta, Georgia; Herbert L. Fenster of McKenna Long & Aldridge, LLP, Washington, D.C., and Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, D.C., for amicus curiae Chamber of Commerce of the United States of America, in support of the petitioners.

David R. Boyd, Michael L. Edwards, H. Hampton Boles, Steven R. Casey, and Ed R. Haden of Balch & Bingham, LLP, Birmingham, for amici curiae Business Council of Alabama and Alabama Coal Association, in support of the petitioners.

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae American Chemistry Council, in support of the petitioners.

HARWOOD, Justice.

This petition for a writ of mandamus arises from a number of actions in which 1,675 plaintiffs, all individuals who claim that they were injured by exposure to isocyanate¹ while employed as coal miners, have sued 11 defendants, including Flexible Products Company and Micon Products International, Inc., all of which are involved in the manufacture, use, and distribution of isocyanate. The defendants seek an order from this Court requiring the trial court to set aside its case-management order ("CMO"), which consolidates the underlying actions and sets out various guidelines for litigating those actions in the Bessemer Division of the Jefferson Circuit Court, or, in the alternative, requiring the trial court to modify its CMO so that the trials of the actions are consolidated according to terms the defendants deem appropriate. The defendants also challenge the trial court's determination that venue for all of the plaintiffs is proper in Jefferson County and seek an order requiring the transfer of certain of the actions to Tuscaloosa County. Finally, the defendants challenge that aspect of the CMO that envisions the appointment of a special master to try the plaintiffs' individual claims in groups of 25.

The underlying cases began with three actions brought by the plaintiffs: Bice v. Micon, Inc. (CV-01-1194), filed in September 2001; Abernathy v. Micon, Inc. (CV-01-1341), filed in October 2001; and Acklin v. Micon, Inc. (CV-02-1518), filed in October 2002. In all three cases, the plaintiffs asserted claims of negligence, wantonness, outrage, failure to warn, violation of the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"), misrepresentation, concealment, breach of warranties, and conspiracy. On August 24, 2004, the plaintiffs moved to consolidate the three cases pursuant to Rule 42, Ala.R.Civ.P., and on November 17, 2004, the trial court issued the CMO addressing the motion to consolidate. In pertinent part, the CMO states:

"2. Motion to Transfer

"The Court finds under the Alabama Code of 1975, § 6-3-7(c), that venue is proper where the cases sought to be venued together involve common issues of law or material fact and the action can be maintained more efficiently and economically for all parties if consolidated and tried here in the Bessemer Division of Jefferson County and the interest of Justice supports the joinder of the parties as Plaintiffs in one action as provided by [Ala. R. Civ. P.] Rule 42.

"3. Consolidation

"The above styled cases are consolidated for pretrial purposes, discovery, motions, and trial under [Ala. R. Civ. P.] Rule 42(a). This order constitutes a determination that these actions are consolidated for trial. They are consolidated because they contain common questions of fact and are sufficiently complex. The claims by the Plaintiffs in those cases are significantly the same and raise the common questions of fact.

"The Court has determined that these 3 cases and any other cases subsequently filed against these Defendants shall receive aggregated treatment to bring the claims and case together for pretrial management, settlement, or trial.

"These 3 cases in reality are 1600 or more cases involving mass tort litigation. Here there is an event or series of related events injuring a large number of people. The claims in these cases arise out of an identifiable event or product and it affects a very large number of people, it is alleged. The cases are consolidated even though more than one work site was involved, Plaintiffs had more than one occupation within the mines, and the exposures occurred over a fairly long period with different illnesses resulting."

The CMO further designates a master file as a repository for all pleadings and schedules a regular status conference every four weeks to oversee the litigation and to provide the parties with regular opportunities for filing additional motions as necessary. Under the heading, "5. Refinement of Issues," the CMO states:

"(A.) The counsel for Plaintiffs and Defendants shall be prepared at the status conference to present to the Court the common issues including the dangers to human health posed by isocyanate exposure, Defendants' knowledge regarding those dangers, the adequacy of Defendants' warnings and Defendants' misrepresentation regarding the safety and their concealments of the known dangers of their products. The parties are to determine the issues appropriate for aggregate determination. These issues will be tried at the consolidated common issues trial with some Plaintiffs presenting their claims against Defendants on all issues as to liability and causation which will yield findings on common issues.

"(B.) The Plaintiffs in the common issues trial will be those in the original Bice case. The remaining Plaintiffs in this trial shall be eight chosen by the Plaintiffs' counsel from the Acklin case who worked for Drummond Company, Inc. This will give Plaintiffs from each of the three companies: Jim Walter [Resources, Inc.], U.S. Steel [Co.], and Drummond [Coal Co.] The remaining plaintiffs will be tried on the issues of specific causation and damages in later proceedings in which the findings on common issues from the first trial would apply.

"(C.) Mediation. The remaining Plaintiffs shall be ordered to mediation before the Honorable Art Hanes, retired Circuit Judge. These mediations shall occur without a stay on discovery.

"(D.) Special Master. A Special Master shall be appointed by the Court to hear twenty-five Plaintiff cases at a time. These Plaintiffs are to be selected by Plaintiffs' counsel[;] however, the Plaintiffs shall be selected on a scale from best case to wors[t], taking into consideration their exposure, injuries, and damages. The Special Master shall be the Honorable Braxton Kittrell, retired Circuit Judge."

Finally, in section 8, the CMO provides:

"Scheduling the trial for injury, causation and damages on November 29, 2004, the Plaintiffs' counsel will designate the common issues trial group of thirty (30) plaintiffs in the consolidated actions. On the first day of every successive month, the Plaintiffs' counsel will designate, for discovery, twenty-five (25) plaintiffs in these consolidated actions. On the date that a plaintiff is so designated, the stay of discovery against that plaintiff is lifted and will proceed in accordance with the schedule below.

"Designation Date (D-Date)

"Plaintiffs' counsel must designate twenty-five (25) plaintiffs, providing for each designated plaintiff the following:

"a) responses to master discovery (initial disclosures, interrogatories, and document request); and

"b) signed, written authorizations for the release of medical records, workers compensation records, and employment records.

"During the course of discovery, each defendant may serve additional written discovery requests upon each plaintiff.

"....

"140 days after D-Date

"Plaintiffs must submit list of experts expected to offer testimony in the causation and damages phase for this group.

"150 days after D-Date

"Defendants must submit list of experts expected to offer testimony in the causation and damages trial phase for this group."

The CMO also provided for the selection of lead counsel by the lawyers for the defendants, and the CMO set out a scheduling order of completion...