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In re Asbestos Litigation

Supreme Court of Montana

September 13, 2018

IN RE ASBESTOS LITIGATION, Consolidated Cases. MacDonald
v.
BNSF Railway Company, Cascade County Cause No. DV-16-549

          Roger M. Sullivan (Attorney) Representing: Adams, et al Service Method: eService

          Allan M. McGarvey (Attorney) Representing: Adams, et al Service Method: eService

          Jon L. Heberling (Attorney) Representing: Adams, et al Service Method: eService

          John F. Lacey (Attorney) Representing: Adams, et al Service Method: eService

          Ethan Aubrey Welder (Attorney) Representing: Adams, et al Service Method: eService

          Dustin Alan Richard Leftridge (Attorney) Representing: Adams, et al Service Method: eService

          Jeffrey R. Kuchel (Attorney) Representing: Accel Performance Group LLC, et al, MW Customs Papers, LLC Service Method: eService

          Danielle A.R. Coffman (Attorney) Representing: Accel Performance Group LLC, et al, MW Customs Papers, LLC Service Method: eService

          Gary M. Zadick (Attorney) Representing: Honeywell International Service Method: eService

          Gerry P. Fagan (Attorney) Representing: CNH Industrial America LLC Service Method: eService

          G. Patrick HagEstad (Attorney) Representing: Crane Co., United Conveyor Corporation, Riley Stoker Corporation et al Service Method: eService

          Rachel Hendershot Parkin (Attorney) Representing: Crane Co. Service Method: eService

          Mark Andrew Thieszen (Attorney) Poore Roth & Robinson, P.C. Representing: The William Powell Company, Atlantic Richfield Company, et al Service Method: eService

          Patrick M. Sullivan (Attorney) Representing: The William Powell Company, Atlantic Richfield Company, et al Service

          Method: eService Jennifer Marie Studebaker (Attorney) Representing: Goulds Pump LLC, Grinnell Corporation, ITT LLC, et al, International Paper Co. Service Method: eService

          Joshua Alexander Leggett (Attorney) Representing: Goulds Pump LLC, Grinnell Corporation, ITT LLC, et al, International Paper Co. Service Method: eService

          Vernon M. McFarland (Attorney) Representing: Goulds Pump LLC, Grinnell Corporation, ITT LLC, et al, International Paper Co. Service Method: eService

          Jean Elizabeth Faure (Attorney) Representing: Goulds Pump LLC, Grinnell Corporation, ITT LLC, et al, Borg Warner Morse Tec LLC, International Paper Co. Service Method: eService

          Jason Trinity Holden (Attorney) Representing: Goulds Pump LLC, Grinnell Corporation, ITT LLC, et al, Borg Warner Morse Tec LLC, International Paper Co. Service

          Method: eService Chad E. Adams (Attorney) Representing: Weir Valves & Controls USA, Cyprus Amex Minerals Company, Fischbach and Moore, Inc. et al, American Honda Motor Co., Inc., Harder Mechanical Contractors, Nissan North American Inc. Service Method: eService

          Katie Rose Ranta (Attorney) Faure Holden, Attorneys at Law, P.C. Representing: Borg Warner Morse Tec LLC Service Method: eService

          John Patrick Davis (Attorney) Representing: Atlantic Richfield Company, et al Service Method: eService

          Stephen Dolan Bell (Attorney) Dorsey & Whitney LLP Representing: Ford Motor Company Service Method: eService

          Dan R. Larsen (Attorney) Dorsey & Whitney LLP Representing: Ford Motor Company Service Method: eService

          Peter L. Helland (Attorney) Representing: Ford Motor Company Service Method: eService

          Kelly Gallinger (Attorney) Representing: Maryland Casualty Corporation Service Method: eService

          Charles J. Seifert (Attorney) Representing: Ford Motor Company, Maryland Casualty Corporation Service Method: eService

          Robert J. Phillips (Attorney) Garlington, Lohn & Robinson, PLLP, Representing: BNSF Railway Company Service Method: eService

          Emma Laughlin Mediak (Attorney) Garlington, Lohn & Robinson, PLLP, Representing: BNSF Railway Company Service Method: eService

          Daniel Jordan Auerbach (Attorney), Representing: Weir Valves & Controls USA, Cyprus Amex Minerals Company Service Method: eService

          Leo Sean Ward (Attorney) Representing: Weir Valves & Controls USA, Cyprus Amex Minerals Company, Fischbach and Moore, Inc. et al, American Honda Motor Co., Inc., Harder Mechanical Contractors, Nissan North American Inc. Service Method: eService

          Robert B. Pfennigs (Attorney) Representing: Stimson Lumber Company, Zurn Industries, Inc., Mazda Motor of America, Inc. Service Method: eService

          Rick A. Regh (Attorney) Representing: Stimson Lumber Company, Zurn Industries, Inc., Mazda Motor of America, Inc. Service Method: eService

          Mark Trevor Wilson (Attorney) Great Falls MT 59403 Representing: Stimson Lumber Company, Zurn Industries, Inc., Mazda Motor of America, Inc. Service Method: eService

          Robert M. Murdo (Attorney) Representing: Mine Safety Appliance Company LLC Service Method: eService

          Murry Warhank (Attorney) Representing: Mine Safety Appliance Company LLC Service Method: eService

          Ben A. Snipes (Attorney) Kovacich Snipes, PC Representing: Backen et al, Sue Kukus, et al Service Method: eService

          Mark M. Kovacich (Attorney) Kovacich Snipes, PC, Representing: Backen et al, Sue Kukus, et al Service Method: eService

          Ross Thomas Johnson (Attorney) Representing: Backen et al, Sue Kukus, et al Service Method: eService

          Randy J. Cox (Attorney) Representing: A.W. Chesterson Company Service Method: eService

          Zachary Aaron Franz (Attorney) Representing: A.W. Chesterson Company Service Method: eService

          M. Covey Morris (Attorney) Representing: FMC Corporation Service Method: eService

          Robert J. Sullivan (Attorney) Representing: Ingersoll-Rand, Co. Service Method: eService

          Dale R. Cockrell (Attorney) Representing: State of Montana Service Method: eService

          Vaughn A. Crawford (Attorney) SNELL & WILMER, L.L.P. Representing: The Proctor & Gamble Company et al Service Method: eService

          Tracy H. Fowler (Attorney) Representing: The Proctor & Gamble Company et al Service Method: eService

          Martin S. King (Attorney) Representing: Foster Wheeler Energy Services, Inc. Service Method: eService

          Maxon R. Davis (Attorney) Representing: Continental Casualty Company Service Method: eService

          Tom L. Lewis (Attorney) Representing: Harold N. Samples Service Method: eService

          Keith Edward Ekstrom (Attorney) Representing: Brent Wetsch Service Method: eService

          William Rossbach (Attorney) Representing: Michael Letasky Service Method: eService

          Kennedy C. Ramos (Attorney) Representing: Maryland Casualty Corporation Service Method: eService

          Edward J. Longosz (Attorney) Representing: Maryland Casualty Corporation Service Method: eService

          Chad M. Knight (Attorney) Representing: BNSF Railway Company Service Method: eService

          Anthony Michael Nicastro (Attorney) Representing: BNSF Railway Company Service Method: eService

          Nadia Hafeez Patrick (Attorney) Representing: BNSF Railway Company Service Method: eService

          Kevin A. Twidwell (Attorney) Representing: Libby School District #4 Service Method: eService

          Jinnifer Jeresek Mariman (Attorney) Representing: Adams, et al Service Method: eService

          John Eric Bohyer (Attorney) Representing: Ziegler Lumber Company Service Method: eService

          Ryan T. Heuwinkel (Attorney) Representing: Ziegler Lumber Company Service Method: eService

          Stephanie A. Hollar (Attorney) Representing: Stimson Lumber Company Service Method: eService

          Michael Crill (Other) Method: Conventional

          Michael D. Plachy (Attorney) Representing: Honeywell International Service Method: Conventional

          Conor A. Flanigan (Attorney) Representing: Honeywell International Service Method: Conventional

          Fredric A. Bremseth (Attorney) Representing: Brent Wetsch Service Method: Conventional

          Walter G. Watkins (Attorney) Representing: International Paper Co. Service Method: Conventional

          Jason Eric Pepe (Attorney) Representing: BNSF Railway Company Service Method: Conventional

          Peter A. Moir (Attorney) Representing: International Paper Co. Service Method: Conventional

          John Parker, Judge

          ORDER RE: PLAINTIFFS' MOTION FOR DEFERRED DOCKET [1]

          Amy Eddy, Asbestos Claims Court Judge

         Pending before the Court is Plaintiff Jason MacDonald's Motion for Deferred Docket, filed April 12, 2018.[2] With the exception of International Paper, Defendants filed a Collective Response, and International Paper filed a separate Response on May 14, 2018. Plaintiffs filed a Reply on June 5, 2018. The Court received evidence and heard argument on July 24-25, 2018, when the matter came before the Court for an evidentiary hearing. Having reviewed the file and being fully apprised, the Court hereby finds as follows:

         ORDER

         Plaintiffs' Motion for Deferred Docket is GRANTED in part and DENIED in part, consistent with the below rationale.

         RATIONALE

         A. Factual and Procedural Background

         (1) Purpose and Mandate of the Asbestos Claims Court

         Pursuant to Mont. Code Ann. § 3-20-101, this Court presides only over those actions "brought for the recovery of monetary damages for personal injury, wrongful death, loss of consortium, or other injury arising out of an asbestos-related disease that is alleged to result from the mining of vermiculite, the processing of vermiculite, or the transfer, storage, installation, or removal of a product containing vermiculite." The Montana Legislature codified the Asbestos Claims Court Act at §§ 33-20-101 through -105 ("the Act") in 2001, because "it is imperative that asbestos-related claims be dealt with expeditiously in order to allow Montana citizens with life-threatening illnesses to receive a speedy resolution of their claims."[3] The Act's effectiveness was contingent on a determination by the Montana Supreme Court that, in light of the outcome of federal bankruptcy proceedings and other circumstances that the Court deemed advisable to consider, there existed a sufficient need to implement the Act's provisions.[4]

         In the aftermath of the W.R. Grace bankruptcy proceedings, and in response to an impending crisis in the state district courts, the Montana Supreme Court established the Asbestos Claims Court (ACC) in 2017.[5] In its decision to activate the ACC, the Court pointed to "the need of all parties to have asbestos-related claims timely resolved, the extraordinary complexity and cost of these cases, and the enormous detrimental impact on the resources of Montana district courts if required to litigate these cases on an individual basis."[6] While the ACC explicitly advances the interest of expediency and economy, the Montana and United States Constitutions protects parties' rights to equal protection, due process of law, and full legal redress.[7] Therefore, the ACC's purpose and mandate is to facilitate the speedy resolution of asbestos claims, while ensuring that parties' constitutional rights to fairness and process are not infringed.

         (2) The CARD Clinic and Diagnosing Nonmalignant Asbestos Related Disease

         At the Libby Asbestos Site, disease and death rate from asbestosis and asbestos-related disease (ARD) is significantly higher than the national average. In 2002, the Center for Asbestos Related Disease (CARD Clinic) was established in in Libby in response to raised awareness of widespread asbestos exposure. Since then, the CARD Clinic's stated goal has been to provide long-term screening, health monitoring, disease diagnosis, and counseling to people exposed to Libby Amphibole asbestos. The CARD Clinic also assists in ARD research. Since establishment, the CARD Clinic has mass screened approximately 5, 700 people for ARD; and, it continues to actively follow the status of 7, 700 patients.

         The CARD Clinic initially diagnosed virtually every person potentially impacted by the present motion. Many of those individuals' initial nonmalignant ARD has unfortunately progressed to other asbestos-related diseases, including asbestosis, mesothelioma and various cancers. Fortunately, the majority of these individuals have not progressed beyond the initial nonmalignant ARD diagnosis and are not suffering from any impairment, despite the fact that 95% of them experienced their initial exposure over 30 years ago.

         The parties agree that the Official Statement of the American Thoracic Society, Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos, adopted December 12, 2003, represents the reliable standard of care for diagnosing nonmalignant asbestos related diseases. The ATS set forth the following criteria for making these diagnoses:

. Evidence of structural pathology consistent with asbestos related disease as documented by imaging or histology;
. Evidence of causation by asbestos as documented by the occupational and environmental history, markers of exposure (usually pleural plaques), recovery of asbestos bodies, or other means; and
. Exclusion of alternative plausible causes for the findings.[8]

         Significantly, "[functional assessment is not required for diagnosis but is part of a complete evaluation. It contributes to diagnosis in defining the activity of disease and the resulting impairment."[9] There are numerous ARDs, including pleural plaques, asbestosis, mesothelioma, and a variety of cancers. Pertinent to the present motion is pleural thickening, and specifically the diagnosis of lamellar pleural thickening (LPT), which appears to be unique to Libby.[10]

         Historically, ARD has been diagnosed through a chest x-ray and confirmed by a certified B-reader. Numerous widely accepted standards have been in place to accurately diagnose ARD in this manner. By contrast, LPT cannot be seen on an x-ray. LPT can only be diagnosed with a CT scan, and by experts trained to recognize LPT. Complicating the diagnosis is the fact that LPT does not cause a change in pulmonary function, and can be caused by numerous other conditions unrelated to asbestos exposure-making relevant the exclusion of alternative plausible causes.

         Further complicating the diagnosis is the fact that the latency period appears to extend well past 40 years, and even after a diagnosis, there is no way to predict whether the patient will develop symptoms and/or any impairment related to the disease. As such, and the parties concede, no one can establish to a reasonable degree of medical certainty which unimpaired Plaintiff's disease will or will not progress.

         (3) Test Case: Jason C. MacDonald v. State of Montana, et al., Cascade County Cause No. DV-16-549, Judge John Parker, presiding.

         In the course of organizing the ACC, it was determined there are currently 2, 117 individual Plaintiffs with cases pending before the ACC, involving approximately 40 individual Defendants. In an effort to give shape to the litigation before the ACC, the Court approved master discovery requests to the Defendants, continued the process of the Plaintiffs providing releases of information for the Defendants to gather relevant information, set five test cases for trial, and approved discovery requests for those Plaintiffs whose cases had been set for trial. In setting the individual cases for trial, care was taken to set cases involving different legal issues and injuries. Pertinent hereto, the Court set the case of Jason C. MacDonald v. State of Montana, et al., Cascade County Cause No. DV-16-549, before the Honorable Judge John Parker.

         MacDonald's case was selected as a test case because his situation is similar to that of many other Plaintiffs before the ACC. Approximately 1, 224 (55%) of the total number of 2, 117 Plaintiffs have a similar nonmalignant ARD diagnosis, which is rated at normal-to-mild for impairment purposes. The "mild/normal" range is the least severe category on the spectrum of asbestos-related diseases.[11] With this mild/normal level of severity, MacDonald is considered to be in the category of "unimpaired" Plaintiffs. As noted above, of these 1, 224 similarly situated unimpaired Plaintiffs, 1, 083 (95%) have exposures that began over 30 years ago.

         MacDonald claims that between 1977 and 2001 he was a Libby-area resident and injuriously exposed to Libby asbestos.[12] In the summers of 1995 and 1996, MacDonald worked for Defendant Stimson Lumber at its logging and manufacturing operation in Lincoln County, Montana. There, MacDonald claims that he worked in an environment that exposed him to asbestos, asbestos dust, and asbestos-contaminated materials.[13] Outside of his work at Stimson Lumber, MacDonald shopped, socialized, and recreated in the town of Libby and its vicinity. He also claims there was vermiculite in his home and that he was generally exposed to asbestos at several other Libby residences.[14] Additionally, MacDonald's father and grandfather worked for W.R. Grace, and he was exposed to asbestos by way contaminants they inadvertently took home from their jobsites.[15]

         MacDonald is 41 and currently lives in Anchorage, Alaska with his wife and twin daughters.[16] He is a physical education teacher and has no smoking history.[17] On July 8, 2013, he was seen at the Center for Asbestos Related Disease ("CARD Clinic") in Libby, Montana. There is no indication before the Court why MacDonald traveled to Montana to be screened at the CARD Clinic, other than he was "self-referred."[18] The medical record from his first visit at the CARD Clinic with Michelle Boltz, FNP-C, states in relevant part:

         HPI/ROS

CC: History of Libby amphibole asbestos exposure, self-referred for initial screening. PULM: The patient has a dry cough a few days per month, not chronic throughout the day. He does feel short of breath with activity such as running with his kids, he is a PE teacher. He also now reports that ...

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