From shotgun to rifle: Delaware docket shifting from mass tort to product liability

Steve Korris Jul. 27, 2005, 1:35pm

Delaware Superior Court. Judge Slights is pictured first in top row.

WILMINGTON, Delaware - On the fourth day of a nationally significant asbestos trial, the lawyers settled, the jury turned into a focus group and the judge decided to rewrite his case management order.

At the request of plaintiff's and defense attorneys in a consolidated case known as the "Dawson group," New Castle County Superior Court Judge Joseph Slights invited jurors to answer questions about the evidence on July 21. They all stayed an hour and a half--even Slights.

According to defense attorney Mark Reardon, Slights said he would write new asbestos case management orders based on the jury’s responses. Reardon, who defended boiler maker Weil-McLain, is a partner with Elzufon, Austin, Reardon, Tarlov & Mondell in Wilmington.

“This judge will be retooling certain case management orders and revising certain pretrial practices to address these cases as product liability cases with individual plaintiffs and individual defendants, rather than as mass torts,” Reardon said.

Pretrial procedures have been in place more than 10 years, he added.

“Since those orders were designed, the asbestos litigation landscape has changed."

Asbestos manufacturers have gone bankrupt and plaintiffs started suing manufacturers of component parts, Reardon continued, and some companies bought parts that contained asbestos but received no warning of the danger.

“Plaintiffs will need specific evidence of exposure to specific products,” he said. “It will be a rifle, not a shotgun.”

New orders would affect asbestos plaintiffs and defendants all over the country, as Delaware has suddenly turned into a national magnet for asbestos suits.

SimmonsCooper law firm of Alton, which has filed asbestos suits in Madison County on behalf of plaintiffs all over the nation, shifted 21 new cases to Delaware in May and June.

Each complaint named at least one Delaware corporation as a defendant and argued that no one could remove the suit to another jurisdiction.

None of the plaintiffs lived in Delaware.

Because an outside attorney cannot file a Delaware suit, SimmonsCooper filed through the Wilmington firm of Bifferato, Bifferato and Biden.

The third name belongs to Joseph R. Biden III, son of U. S. Senator Joseph R. Biden Jr.

SimmonsCooper attorney Mike Angelides signed each complaint as, “of counsel.”

The Bifferato firm had never filed an asbestos suit. Through April it had defended A. W. Chesterton, a manufacturer of pumps and seals, in asbestos cases.

Several new cases also came into Wilmington from Baron and Budd of Dallas, Texas. That firm has filed asbestos suits in Madison County for plaintiffs all over the nation.

Baron and Budd filed through the most experienced asbestos firm in Delaware, Jacobs and Crumplar of Wilmington.

The stream of cases fell on Slights, who recently took over the county asbestos docket. It held more than 700 active cases before the latest wave.

On July 18, Slights opened his first asbestos trial. The plaintiffs accused many companies of exposing them to asbestos that damaged their lungs.

The suits at trial had started before the SimmonsCooper cases started coming. Robert Jacobs, of Jacobs and Crumplar, represented the plaintiffs.

According to a report from the court’s record keeper, in the trial's fourth day, jurors returned from lunch to learn that the attorneys had settled and the trial had ended.

Slights began to dismiss the jury, according to the report, but attorneys on both sides asked him to invite jurors to stay.

“We asked dozens of questions," Reardon said. "The jurors were attentive, insightful and communicative.”

He said the attorneys asked if jurors heard enough to decide medical evidence to decide if it was dangerous to install or remove boilers, or to decide if asbestos from a boiler contributed to lung damage.

They also asked if jurors spent enough time with each plaintiff to separate them, or if their names blurred together.

Further, jurors were asked if they had heard enough to decide if the plaintiffs had lung disease.

Reardon said a juror answered that one X-ray reader told the jury that an X-ray showed injury and another X-ray reader told the jury it did not.

“And you ask us to decide?” one juror reportedly said.

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