West Virginia has been at the forefront of asbestos litigation since its inception in the 1970s. Several “mass trials” were conducted in Monongalia and Kanawha Counties, with the last being in September 2002. The 2002 trial, dubbed by some as the “West Virginia Mass Trial” included thousands of claims asserted by plaintiffs prior to September 6, 2001. A limited number of defendants proceeded to trial on the bifurcated issue of liability alone and no damage trials were completed afterwards. Thus, aside from some remaining contested claims against a limited number of defendants, West Virginia theoretically “wiped the slate clean” and instituted the current trial system to resolve claims filed after the September 2001 deadline.

The current Master Case Management Order (“CMO”), entered by Judge Arthur Recht on March 25, 2003, presently governs all asbestos cases in which plaintiffs assert claims for personal injury or death as a result of exposure to asbestos or asbestos-containing products. The CMO presently mandates that three groups of twenty cases be tried every year and that the trial groups consist of cases involving the diagnosis of malignant mesothelioma and/or lung cancer. Pursuant to a supplement to the original CMO entered by Judge Ronald Wilson of the First Circuit, the trial judge assigned to handle the current trial group schedule, cases are designated for trial 240 days prior to the established trial date. Currently, trials are scheduled for the second or third week of January, May and September and are conducted in either Charleston or Wheeling. Pre-trial issues and deadlines, including discovery, lay and expert witness identification, deposition schedules, exhibit production and the production of pathology materials and medical records are set forth in the CMO and supplements. FELA (Federal Employer Liability Act) claims asserted against railroad entities or unfair trade practice claims against insurance companies are expressly excluded from the current trial scheme established under the CMO.

The CMO is designed to provide some form of certainty for the parties; however, several factors exist that serve to do exactly the opposite for both small businesses in West Virginia and defendants currently involved in the litigation. First and foremost, with corporate bankruptcies hastened by both potential asbestos liabilities as well as other factors, plaintiffs’ attorneys are “casting a much wider net” in an attempt to identify companies to include in their Complaints. More and more, claims are asserted against small West Virginia companies, including sellers and distributors of asbestos-containing products, including electrical components, automotive parts and household items. Small contracting companies, including those providing construction, electrical, insulating and other services to industrial worksites have also been brought into the litigation, with plaintiffs asserting negligence claims for the installation,  removal or merely the “disturbing” of asbestos-containing materials and deliberate intent claims for failing to provide a safe workplace for the plaintiff employee.  Any smaller entity that had any connection to the sale and/or use of an asbestos-containing product, or with work at an industrial facility, must be aware of the potential for a claim and be prepared in the event such a claim is asserted.

Another factor which may change the landscape of West Virginia asbestos litigation is the recent opinion of the West Virginia Supreme Court of Appeals in Morris v. Crown Equipment Corp., et al. issued on June 29, 2006. The West Virginia legislature, in an attempt to limit “forum shopping” by plaintiffs’ attorneys, enacted W.Va. Code § 56-1-1 (c) [2003] which provides:

Plaintiff’s product liability claims were dismissed by the Circuit Court of Kanawha County on the basis that plaintiff failed to satisfy the venue requirements as the injury occurred in Virginia and plaintiff was a Virginia resident. While the Supreme Court did not find the statute per se unconstitutional, they did hold that this statute could not apply to any plaintiff that sued a West Virginia entity under the Privileges and Immunities Clause of the United States Constitution. The Court reasoned that, with all facts being the same, a West Virginia resident could pursue a claim in the West Virginia court system, but a non-resident is categorically barred from doing so. Thus, because one defendant in the case was a West Virginia corporation, venue was appropriate in the Circuit Court of Kanawha County. The Court did not address the instance wherein an out-of-state plaintiff asserts claims against only out-of-state defendant(s) in a West Virginia court.

One of the defendants in the Morris case also argued that plaintiff must establish proper venue for each defendant in the case pursuant to the language of the aforementioned statute. However, the Supreme Court disagreed, noting that “[t]his court follows the venue-giving defendant principle, whereby, once venue is proper for one defendant, it is proper for all other defendants subject to process.” Thus, the Court’s opinion effectively means that if a plaintiff can pursue a colorable claim against any West Virginia company, claims against all other defendants can proceed in the West Virginia court system. While the effects of this ruling remain to be seen, traditional defendants wait to see if additional out of state claims may once again be filed in West Virginia. Further, the venue-giving provisions identified in the opinion will certainly provide plaintiffs’ counsel with the motivation to investigate, identify and pursue claims against West Virginia entities to ensure that their cases remain in the West Virginia system.

Yet another factor that may provide local, national and international businesses with some form of certainty regarding potential asbestos liabilities is the Fairness in Asbestos Injury Resolution Act of 2006, S. 3274, currently on the Senate Calendar. The fund, as proposed, would create a $140 billion trust fund providing an alternative to the current tort system. The fund, administered through the Department of Labor, would be fully funded by companies that manufactured asbestos-containing products, other entities subject to asbestos liabilities and their insurers. The fund, as proposed, would theoretically work similarly to no-fault workers’ compensation systems where victims qualifying through strict medical criteria would submit their claims through an administrative process designed to compensate quickly. Several entities on both sides of the issue are opposed to this fund, as designed, and it is unclear if this matter will even reach the Senate floor for vote.

West Virginia companies that have had any involvement with selling or supplying asbestos-containing products as well as those entities that have used, installed or removed such products must be prepared to be named as a defendant in a West Virginia asbestos suit. The same applies for entities involved in the installation, removal of such products as well as those that provided contract work to industrial sites, whether to provide materials or labor. All of these companies must be prepared for the ever-evolving threat of potential litigation and the concomitant asbestos liability. For newly identified and sued entities, insurance coverage issues typically will arise based on the exposure periods alleged and all companies should gather and store policies that may provide an avenue for coverage for these claims.

 If named as a defendant in an asbestos suit for the first time, the company should immediately put its insurer(s) on notice and advise that they would like experienced West Virginia asbestos counsel to represent their interests. If at any time, your company is sued or any form of demand is made, the products liability litigation professionals at Jenkins Fenstermaker, PLLC would be more than willing to meet with you to review the case and potential defenses to the claims asserted.