ANNAPOLIS – The Senate gave preliminary approval Tuesday to late-filed legislation that would require thousands of pending lawsuits alleging illness from asbestos exposure be referred for mediation within the executive branch.
The bill, which the Senate could vote on as early as Wednesday, is being pushed by the Law Offices of Peter G. Angelos P.C. and other attorneys for the alleged victims, who say the court’s massive backlog of asbestos cases will result in their clients dying before their claims are resolved and potential compensation awarded. But the Maryland Judiciary opposes the measure, saying that the Baltimore City Circuit Court — which handles all asbestos cases — has sharply reduced the backlog and that the legislation’s demand for mediation in the executive branch would usurp the authority of judges to manage their civil dockets.
Senate Bill 1049 would call for the creation of an Office of Asbestos Case Mediation and Resolution, whose director would be appointed by the governor with the Senate’s advice and consent. The director would adopt regulations and maintain a list of qualified mediators to hear the mandatorily referred cases from the circuit court’s asbestos docket.
The alleged victims and corporate defendants would be permitted to opt out of the mediation. Cases not resolved through mediation would be returned to court for trial.
If approved by the Senate, the bill would move to the House of Delegates, where its fate is uncertain and time would not be on its side. The 2019 General Assembly session ends Monday at midnight.
Sen. Jeff Waldstreicher, the bill’s chief sponsor, said attorneys for alleged asbestos victims urged him to introduce the measure after concluding that the Judiciary’s General Assembly-approved budget for the next fiscal year contains insufficient funds for the Baltimore court’s asbestos docket. The legislation’s mandated mediation would give alleged victims of asbestos exposure a quicker path toward compensation, he said.
“The bill makes a strong first step toward giving them access to justice,” said Waldstreicher, D-Montgomery.
Attorney Gary J. Ignatowski, of the Angelos firm in Baltimore, agreed with the senator in Senate committee testimony last week.
“It (mediation) is not a waste of time because we have had people interested in dealing with us in a good-faith basis, but there has to be some impetus,” Ignatowski told the Senate Judicial Proceedings Committee.
“There has to be some way of dealing with 32,000 cases; otherwise those 32,000 cases are stagnant, and it’s not fair to the individuals, it’s not fair to the companies who have to answer to their CEOs and it’s not fair to our clients,” he added. “So this is a method we believe works.”
But attorney Theodore F. Roberts, who represents corporate defendants in asbestos cases, told the committee that the circuit court’s efforts have reduced the backlog and that compelled mediation has historically failed to resolve asbestos litigation.
“If it ain’t broke, don’t fix it,” said Roberts, of Venable LLP in Towson.
“The current judicial program is doing exactly what the legislature requested: reducing the backlog in Baltimore City,” he said. “Forced mediation has failed in the past (and) it’s not presently needed given the practice of the parties to settle cases themselves. Meritorious cases have ample opportunities to mediate under the current system.”
The Maryland Judiciary stated in written Senate committee testimony that Waldstreicher’s concern about asbestos victims’ timely access to the courts is belied by the Baltimore court’s intense focus on the docket, which has “greatly increased the number of cases that will be resolved in the immediate future.”
The Senate bill would undermine this progress because it “interferes with the inherent ability of the Judiciary to control and schedule its dockets, in that mandatory trials would be triggered by an executive branch action,” the Judiciary wrote to the Senate committee.
The Judiciary also objected to the authority the bill would give an executive branch entity to promulgate regulations regarding the mediation of legal claims, including the use of neutral experts and discovery.
“There are extensive rules which govern discovery as discovery is a process that occurs under court supervision and is under exclusive jurisdiction of the judicial branch,” the Judiciary stated. “This process should not be left under the purview of the executive branch.”
The backlog of asbestos exposure cases goes back many years and has been a matter of dispute between counsel for the alleged victims and the defendant companies.
The victims’ attorneys number the backlog at about 32,000 cases, while the defense bar said that figure fails to consider the many claims that have settled but have not yet been removed from the docket, as well as those that lack sufficient documentation to proceed and those that lack merit.
To deal with the backlog, the Baltimore City Circuit Court has two judges dedicated to handling asbestos cases, including trials, status conferences and disposition of motions. A retired judge oversees the docket and assigns cases, and a magistrate judge conducts settlement conferences.
W. Michel Pierson, the Baltimore City Circuit Court’s administrative judge, urged the Senate Judicial Proceedings Committee to hold off on legislation in light of what he calls his court’s success at managing the asbestos docket.
But Waldstreicher said the court’s efforts have not relieved the backlog.
“I wish that were the case,” the senator said. “No real progress has been made.”
Baltimore has long been a hot spot for asbestos litigation. The Mergenthaler Linotype Co. and Porter Hayden Co., an insulation producer, once manufactured asbestos-containing products in the city, and blue-collar workers were also exposed to asbestos while working in the area’s shipyards, steel mills, power plants, automotive industry and construction sites.