Union Carbide Corp. v. Pittman, et al.

Case Updates

The U.S. Chamber joined with the American Tort Reform Association to ask the Maryland Court of Appeals to review a decision by a lower court that failed to sanction the asbestos plaintiffs’ attorneys for well-documented litigation gamesmanship that resulted in serious abuses of the discovery process, ultimately keeping the defendant blind until the eve of trial to important and material claim submissions made by the plaintiffs to asbestos trusts.

The Chamber’s brief argues that this case is a poster child for the type of gamesmanship that can, and too often does, take place in modern asbestos litigation. The brief explains that Congress established asbestos bankruptcy trusts to allow any company with significant asbestos liability to contribute funds to a trust that assumes the company’s asbestos liability while barring civil asbestos litigation against the company. Although the trusts were established by Congress to help ensure recovery for past, present, and future claimants, the trusts’ assets are rapidly being depleted by asbestos claimants who, in some documented instances, file questionable claims with multiple trusts while pursuing civil litigation claims against solvent defendants who are kept blind to the claims made against the trusts.

The failure of asbestos plaintiffs’ counsel to timely and accurately respond to targeted, material interrogatories and/or longstanding discovery orders regarding the submission of information regarding asbestos trust claims undermines the fairness of asbestos civil litigation. By depriving defendants of information about the totality of a plaintiff’s purported asbestos exposures deprives defendants of the opportunity to present every available defense, e.g. to show alternative causation of a plaintiff’s asbestos-related injury. This information can also be necessary to fairly value a case in light of potential set-offs or credits for moneys that have been, or are expected to be, recovered from asbestos bankruptcy trusts.

The brief discusses in detail examples of the rampant gamesmanship in asbestos litigation that is plaguing courts across the country. In addition to examples from the Maryland courts, the brief discusses examples from the courts of Delaware, Ohio, Oklahoma, New Jersey, Texas, and Virginia where asbestos plaintiffs failed to disclose claims made to asbestos trusts despite pointed interrogatories and court orders to divulge such information.

The brief argues that, in light of the rampant abuses, state appellate courts such as the Maryland Court of Appeals and others should become more involved in these cases in order to provide district court judges with the necessary support to police such abuses in the discovery process. This would help improve the fairness of civil asbestos litigation.

Christopher E. Appel of Shook Hardy LLP represented the U.S. Chamber as co-counsel to the National Chamber Litigation Center, Inc.