On 04/11/08, the NAM and six other groups filed an amicus brief with the California Court of Appeal, urging it to vacate a Superior Court order that consolidated asbestos cases, and to compel that court to implement a formal process for consolidating future asbestos cases.
Our brief argued that clear case-management rules will help California courts deal with the ever-growing asbestos docket, which includes an influx of filing from out-of-state plaintiffs, many of whom have almost no connection to the state. We also argued that improper case consolidation can have serious, unintended results, such as increasing the backlog of cases the court is trying to address, violating the due-process and jury-trial rights of plaintiffs and defendants, and creating serious ethical problems for plaintiffs’ lawyers. For example, plaintiffs with serious injuries may be harmed when their claims are lumped together with those who have little or no injury.
Our brief recommended that the California Court of Appeal adopt the following criteria, set forth in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), and commonly used by federal courts, for determining whether the trial court may validly consolidate asbestos cases: “(1) common worksite, (2) similar occupation, (3) similar type of exposure, (4) type of disease, (5) whether plaintiffs are living or deceased, (6) status of discovery in each case, (7) whether all plaintiffs are represented by the same counsel, and (8) type of cancer alleged.” Such criteria will provide litigants and trial court judges with clear guidelines to reduce the risk of prejudice and confusion that flow from the improper consolidation of dissimilar actions.
Subsequent to this brief, the trial judge vacated his previous order that had consolidated the cases. As a result, the Court of Appeal on 5/15/08 denied the mandamus petition as moot.