Clients who are new to asbestos litigation often ask why so many defendants are named in asbestos lawsuits. The person usually says to me, “it sounds like they just name every company which they believe used asbestos at some point and then they see what sticks. Isn’t this a huge cost on the system and a burden on companies that had no connection to the plaintiff?”
These questions and others were recently on the minds of Iowa legislators. The Iowa House and Senate passed a bill requiring that plaintiffs who are seeking damages relating to asbestos and silica exposures provide more information about their claims. The Senate version (SF2337) states that a sworn information form indicating the basis for the claim against each defendant must accompany the initial pleadings. The form requires the plaintiff to provide, among other things, basic background information and information related to the alleged exposures. Some examples of information required are the location and manner of such exposures; beginning and ending dates of each exposure; “identity of the manufacturer or seller of the specific asbestos or silica product for each exposure;” and supporting documentation related to the claims made. Essentially, it requires the plaintiff and his or her attorney to investigate the alleged exposures from each defendant before naming the defendant in the complaint.
These requirements shift the burden to make a case back to the plaintiff and cease the practice of requiring defendants to fight their way out of lawsuits in which they were named without evidence of exposures from their products.
One legislator, Representative Brian Lohse, said, “The over-naming of defendants can lead to the litigation moving more slowly and ineffectively.” Rep. Lohse went on to say that the over-naming “drives up the cost of defense” and ultimately “drives up the cost of insurance.”
Others opposed the bill stating that it would be unfair to veterans. Representative Brian Meyer tried to exclude veterans from the bill’s new requirements. Rep. Meyer said he believed 80% of mesothelioma cases involved veterans, and the provisions of the bill might preclude them from making their claims. Representative Karin Derry also opposed the bill but for personal reasons. Rep Derry’s father was diagnosed with lung cancer that she believed was from asbestos. She said her father did not know where he had been exposed to asbestos or when the exposures occurred.
In the Senate, some believed that previous asbestos lawsuits took a “shotgun approach,” creating too many lawsuits that named too many defendants. Senator Zach Nunn was among those. Sen. Nunn said that the previous over-naming of defendants created a situation where plaintiffs were taking this overbroad approach and thinking, “How many of these individuals might settle with my attorney?”
The bill was signed by Governor Kim Reynolds on June 1. The bill appears to be the first of its kind signed into law that specifically addresses asbestos litigation and the naming of defendants in those lawsuits. Other jurisdictions with a large number of asbestos cases are either currently looking at the issue or will begin to look at it following the action in Iowa. How this will play out and what long lasting effects it might have remain to be seen. One thing is certain: there is a clear balancing act between allowing people to properly bring their asbestos-related lawsuits and the over-naming of defendants in those lawsuits.
