Title: West Virginia Asbestos Mass Trial: Efficient Innovation or Constitutional Violation? Aside from Denying Due Process, the Concept Has Unintended Consequences by Attracting More Cases and Draining Court and Damage Resources
Abstract: Aside from denying due process, the concept has unintended consequences by attracting more and draining court and damage resources ASBESTOS litigation has spurred inno vations in civil procedure as courts and parties have struggled manage the number of claims pouring into the courts.1 The West Virginia judiciary attempted deal with the elephantine of asbestos cases through the adoption by the state's Supreme Court of Appeals of an innovative management procedure, embodied in its Trial Court Rule 26.01, known as TCR 26.01, which led the mass trial concept.2 From the perspective of its first application in In re: West Virginia Asbestos Personal Injury Litigation (Asbestos Mass Trial), the was successful in clearing the queue in court, but that search for efficiency was achieved at the cost of fundamental fairness, leading constitutional violations of due process and federalism.3 MASS TRIAL PROCEDURE In 2001, in State ex rel. Allman v. MacQueen,4 the West Virginia Supreme Court of Appeals explained that asbestos threatened cripple the common law system of adjudication because of the volume of cases, as the disposition of all currently pending asbestos cases, if treated in the traditional course of litigation, was expected require approximately 150 judge years.5 It concluded that as Congress had not created any legislative solution the problem, courts were forced to adopt diverse, innovative, and often non-traditional judicial management techniques reduce the burden of asbestos litigation that seems be paralyzing their active dockets.6 The court had created TCR 26.01 in 1999 under its supervisory powers, finding conventional consolidations inadequate for dealing with the volume of asbestos filed in West Virginia.7 The is not a single method of aggregation, but rather a procedure by which alternatives case-by-case trials can be examined and appropriate management plans developed. In furtherance of this goal, TCR 26.01 established and governed the operation of a Mass Litigation (MLP) composed of West Virginia court judges. The MLP was charged with the responsibility develop and implement case management and methodologies for litigation and fairly and expeditiously dispose of civil litigation which may be referred it by the West Virginia chief justice, and make recommendations the chief justice on the transfer of actions from one circuit another in order facilitate any case management or methodologies developed by the panel. Mass litigation is defined by TCR 26.01(c) as two or more civil actions pending in one or more circuit courts (a) involving common questions of law or fact in accidents or single catastrophic events in which a number of people are injured; or (b) involving common questions of law or fact in injury torts allegedly incurred upon numerous claimants in connection with widely available or mass-marketed products and their manufacture, design, use, implantation, ingestion, or exposure; or (c) involving common questions of law or fact in damage torts allegedly incurred upon numerous claimants in connection with claims for replacement or repair of allegedly defective products, including those in which claimants seek compensation for the failure of the product perform as intended with resulting damage the product itself or other property, with or without personal injury overtones; or (d) involving common questions of law or fact in economic loss incurred by numerous claimants asserting defect claims similar those in property damage circumstances which are in the nature of consumer fraud or warranty actions on a grand scale including allegations of the existence of a defect without actual product failure or injury. The procedure is triggered by the filing of a Motion Refer Mass Litigation Panel by any party, judge or the state's administrative director of the courts. …
Publication Year: 2004
Publication Date: 2004-07-01
Language: en
Type: article
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