On August 19, 2016, Judge Stobbs amended Madison County's Standing Case Management Order For All Asbestos Personal Injury Cases ("Standing Order") for the second time since its initial implementation in 1995. Per Judge Stobbs the recent amendments to the Standing Order will not go into effect until January 1, 2017, with the exception of the new medical criteria requirements for non-mesothelioma cases which are effective immediately.
I. How A Trial Setting is Determined?
Historically, the Standing Order required all Plaintiffs' firms to petition the Court for trial dates which were set aside for cases later filed by those firms. This was known as the "reservation system" and favored large Plaintiffs' firms with mass referrals vs. smaller-sized firms. The "reservation system" was always a controversial aspect of the Madison County Standing Order and in 2013 was abolished by Judge Harrison after Judge Crowder's removal for accepting campaign donations from certain Plaintiffs' firms that received favorable trial settings. However, logistical problems arose in the wake of the "reservation system" because multiple Plaintiffs' firms starting sharing single trial dates and the Standing Order still provided no limit on the total number of cases allowed per year. Compounding problems, the Standing Order allows expedited trial setting for cases that probably should not qualify for such an expedient trial date: namely, deceased plaintiffs where an estate administrator is over the age of 70.
Judge Stobbs' revisions to the Standing Order reflect an attempt at an orderly system without the problems that plagued the prior "reservation system." For the first time, the Standing Order will establish a "cap" on "first set" cases at 780 cases per year. However, the Order includes flexibility language to allow the Court to increase this maximum number of cases per year upon "good cause shown." Second, the Standing Order will now limit the number of Plaintiffs' firms sharing a jury week to two. The Revised Standing Order maintains the 19 cases per trial setting but alters the "first setting" language to "19 cases identified as priority cases for a jury trial week notwithstanding the number of Plaintiffs' firms assigned to trial in that given week or the number of cases for which certificates of readiness of trial are filed." This entire provision is new and explained in the next section.
II. New Trial Readiness Provision/Priority Cases
One problem that has plagued defendants in Madison County is it has allowed for Plaintiffs' firms to set a vast number of cases on a single trial date with no sense of priority or showing a case is ready for trial. Over the past several years, Judge Harrison and Judge Stobbs have required Plaintiffs' firms to identify "priority cases" the week prior to a trial date but the perimeters of this requirement were never formally established and were abused by Plaintiffs' firms listing virtually all of their cases on a trial date as "priority." In addition, obtaining a "priority list" a week prior to trial date provided defendants no meaningful chance to prepare or adjust trial strategy. The revisions to Standing Order attempt to address this problem but, as shown below, the new procedure will likely have problems due to its complexity and ambiguity.
The Standing Order will now require that 45 days prior to a trial date that a Plaintiffs' firm file a pretrial report and certify a case is "trial ready." This pre-trial report will then be supplemented 14 days prior to trial. The pretrial report must include the following:
"(1) Case name and number;
(2) Attestation that all application provisions of the Court's Standing Order concerning pre-trial deadlines have been satisfy and the case is prepared for trial in all other respects;
(3) A listing of all expert reports that have been filed;
(4) Attestation that discovery is complete or will be complete 30 days before trial or otherwise by agreement of the parties."
Standing Order, Section II.A.3
In addition, "30 days prior to trial, a list of priority cases shall be filed and served." Id. "Cases that allege the disease of mesothelioma, having living plaintiffs with a shortened life expectancy attributable to asbestos exposure as shown by a qualifying diagnosing physician report or are over the age of 70 years shall generally receive priority." Id. "Any case not on the priority list cannot be called out to trial except for good cause shown with the remaining defendants." Id. "Any party may object to a case being designated trial ready or eligible to be considered a priority case on a particular trial docket." Id.
Predictably this new provision has potential "loopholes" and invites questions on application. For example, what is good cause shown to go to trial without listing a case as priority? What does it mean "the case is prepared for trial in all other respects"? What happens when more than 19 cases are identified as priority from two different Plaintiffs' firms on a single trial date? Will defendant's need to object to the identity of "priory cases" on all grounds including, if a Plaintiff has not fully answered Standard Interrogatories or Requests for Production?
Again, it is hard to tell at this point what the new provision will mean in practice and only time will tell how this rule is applied in practice.
III. New Medical Criteria Showing for Non-Mesothelioma Malignancies
The Revised Standing Order adds a condition precedent in order for a Plaintiffs' firm to obtain a trial setting for a plaintiff alleging a non-mesothelioma malignancy. Under the new provision, a plaintiff must provide either a diagnosing medical report or expert opinion that includes the following:
a. The plaintiff/ decedent's diagnosis and that exposure to asbestos was a substantial cause of plaintiff's/decedent's disease;
b. That the diagnosis and causation opinion are based on medically accepted principles and practices; and
c. The diagnosis and causation opinion are made by or based on statements made by reputable medical organization(s) that require at least, occupation, para-occupational or environmental exposure histories to find asbestos exposure as a cause of the disease;
d. Date of diagnosis of the disease.
Standing Order, Section II.B.2(d). Moreover, subsection (f) allows defendants to file motions to remove cases from any current trial setting that fail to meet any of the requirements of subsection (d).
IV. Settlement Conference and Settlement Demands
The Revised Standing Order states that "in all cases set for trial, forty five (45 days) before the trial date plaintiff shall provide written settlement demands to all defendants from which he/she seek indemnity, if not previously provided." Standing Order, Section V.
Moreover a mandatory settlement conference shall occur on the Wednesday prior to a given trial week at 1:00 p.m. The person or attorney attending the settlement conference must be familiar with facts of the case and must have settlement authority to have access to someone who has full immediate settlement authority.
V. Additional Changes
The Revised Standing Order also incorporates several other important changes. The Revised Standing Order recognizes the establishment of competitors to the Central Records Depository ("CRD") such as Pohlman USA. A Plaintiffs' firm must select the document and material depository ("DMD") of their choice as a precondition to bringing a motion to have case set for trial. Defendant can use the DMD as well to effectuate service of "Plaintiff-specific items" that are deposited in DMD.
In addition the Revised Standing Order will now require service of a stipulation list of expected product/premises testimony five business days (rather than three) before any Plaintiff deposition. In addition, the time limitation on evidence depositions has been removed entirely.
Last the Revised Standing Order re-defines "specially closed" status. For example, the Court may utilize "special closed "status in its discretion unless good cause is shown for any cases in which: 1) a Pre-Trial Report is not timely filed as required by section II.A.3; 2) a case where medical criteria of section II.D.(d) is not met within 1 year of filing date or 3) any case on the cleanup docket which is not set for trial by January 31st the year following the "clean up" docket. Standing Order, Section III.C.3.
In addition, if a Defendant is not dismissed when a case is designated by a plaintiff as "specially closed," a defendant may provide written notice to a plaintiff to have a dismissal without prejudice entered no sooner than six months after the date the case is ordered "special closed." Within 7 days of such notice, a plaintiff may respond certifying that the case to that defendant should not be dismissed but remain in "special closed" status because of a settlement pending or bankruptcy trust submission being made.
VI. Summary
The new Standing Order certainly appears beneficial for defendants in several respects such as establishing a theoretical cap on filings, a requirement for Plaintiffs' firms to identify priority cases 30 days before a trial date, and medical criteria as a precondition for a trial date of a non-mesothelioma case. The Revised Standing Order also will now require settlement demands 45 days prior to a trial date and a mandatory settlement conference the Wednesday before a trial date. However, until the provisions are implemented next year, it is hard to tell if in practice the Revised Standing Order "means what it says" or will be undermined by exceptions and ambiguities as in the past.
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