No reason for Maine asbestos case in Texas MDL, Supreme Court says

Steve Korris Dec. 10, 2008, 2:48pm

AUSTIN – The Supreme Court of Texas has released three companies from a lawsuit over asbestos exposure that occurred in Maine.

The justices ruled Dec. 5 that General Electric, Warren Pumps and Ingersoll-Rand would not have to defend themselves in Texas.

They held that District Judge Mark Davidson of Houston, responsible for asbestos cases statewide, improperly kept jurisdiction of a suit the late Austin Richards of Maine filed.

"Maine undoubtedly has an interest in ensuring that its citizens are not exposed to hazardous materials in the workplace," Justice Phil Johnson wrote.

"Absent some overriding consideration, the citizens of Texas should not be burdened with jury duty in a complex asbestos exposure case that has no relationship to Texas," he wrote.

Widow Gwendolyn Richards can pursue her Texas suit against defendants who did not challenge jurisdiction, or she can re-file the entire case wherever she chooses.

Her husband worked for more than 30 years as a mason at a paper mill in Maine.

When he learned he suffered from mesothelioma, he and his wife sued 21 companies in Dallas County.

Dallas County transferred the suit to Judge Davidson, who presides over asbestos cases by appointment of the state Multidistrict Litigation Panel.

Seven defendants moved to dismiss, arguing that Maine provided an adequate forum.

The plaintiff argued that if the suit was filed in Maine state court, defendants would remove it to federal court and transfer it to a federal multidistrict judge.

He argued that in federal multidistrict asbestos litigation, "virtually nothing happens."

At a hearing, Judge Davidson asked defendants if they would agree not to remove the suit to federal court if he granted the motion.

Several defendants said they would not waive their removal rights.

Davidson denied the motion, writing that he might have decided differently if they had waived their right of removal.

Defendants asked him to reconsider. After another hearing, he set aside his previous ruling and denied the motion without stating a reason.

General Electric, Warren Pumps and Ingersoll-Rand sought mandamus relief at the Supreme Court.

While the justices weighed the case, plaintiff Richards died.

Attorneys for his widow argued that transfer to a federal multidistrict judge would cause delay.

They quoted a Maine state court ruling that in the multidistrict litigation, "no asbestos trials or discovery takes place in deference to global settlement efforts."

They counted 32,892 cases in the federal multidistrict litigation as of 2000.

Defendants responded that judges had changed and cases were moving.

Their argument succeeded.

"Though Richards (and others) may be critical of the methods used and time taken to dispose of pretrial matters in the federal asbestos MDL scheme, the scheme is designed to resolve asbestos cases, not deprive injured parties of a remedy," Johnson wrote.

"The federal Constitution guarantees Richards the right to a jury trial and due process, and the Maine and federal courts are bound to afford those rights to Richards," he wrote.

He wrote that evidence and witnesses were outside the subpoena power of Texas courts.

"Reasonable access to witnesses and evidence is a fundamental need in regard to any trial – asbestos or otherwise," he wrote. "We conclude that on balance, the factors ... weigh strongly, if not conclusively, in favor of Richards's action being heard in a forum outside Texas."

Judge Davidson won't have to decide whether to dismiss the entire suit or only the defendants who obtained mandamus relief, because the justices left that choice to Richards.

Kurt Kuhn and Kay Andrews represented General Electric. Robert Thackston and Robert Gilbreath represented Warren Pumps. Laura Frase represented Ingersoll-Rand.

Charles Siegel and Jay Stuemke represented Richards.

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