By Mark A. Behrens, Shook, Hardy & Bacon L.L.P.

Many defendants in asbestos cases today have no connection to the plaintiffs suing them. Often, these erroneously named defendants are eventually dismissed without payment to the plaintiff, but not before they are forced to spend thousands of dollars on legal fees. A number of states have addressed this problem by requiring plaintiffs to disclose the basis for each claim against each defendant. Defendants that are not identified in the required disclosures may obtain dismissal without prejudice. Texas should join this trend and protect innocent asbestos defendants against unsupported claims.

Over-naming

The first asbestos lawsuit filed over a generation ago named less than a dozen defendants. Asbestos plaintiffs’ claiming behavior began to change in the early 1990s, when most of the companies that comprised the “asbestos industry” filed bankruptcy and became immune from tort lawsuits. This “bankruptcy wave” led asbestos plaintiff lawyers to shift their focus towards formerly peripheral and new defendants. Asbestos litigation became an “endless search for a solvent bystander.” 

In 2023, there were “almost 12,200 unique defendant entities named on complaints,” according to consulting firm KCIC. This was “about 400 more than were named in 2022 and over 2,500 more than in 2014.”

When asbestos plaintiff lawyers cast a wide net to capture solvent defendants, they ensnare many innocent companies in the process. According to one insurer, “Very many defendants get dismissed 85-95% of the time from these lawsuits for zero dollars.” KCIC has said, “many defendants are named frequently with no proof of exposure.” This type of lawsuit abuse is known as “over-naming.” 

Some companies find themselves named in nearly every asbestos case without regard to the plaintiff’s exposure history. For example, in Madison County, Illinois, near St. Louis, “one company has been sued by the same law firm over 400 times . . . even though there were actual allegations against that defendant in only 4 cases….” In some cases, complaints appear to have been recycled from earlier cases or based on a general template.

Defendant companies can spend thousands of dollars in defense costs to be released from cases in which there was never proof of exposure. Litigation costs start on day one and may continue for years until an erroneously named defendant is dismissed. Commentators have also explained that frequently over-named defendants could have difficulty attracting investors: “Imagine trying to sell a company and explain that, while past experience indicates that the current docket will eventually be dismissed without payment, more filings are expected…. The cautious buyer simply looks elsewhere.”

Over-naming has contributed to some bankruptcies. For example, in the January 2020 bankruptcy filing of DBMP LLC, the holding company for the legacy asbestos liabilities of CertainTeed, DBMP notes that more than half of “claims filed against [CertainTeed] after 2001 were dismissed—usually because the plaintiff could provide no evidence of exposure to a [CertainTeed] asbestos containing product.” According to ON Marine, another company that filed bankruptcy related to asbestos liabilities in 2020, 95% of the over 182,000 asbestos personal injury claims filed against it were dismissed without payment to a plaintiff.

Texas

Civil justice reforms enacted years ago in Texas lowered the number of asbestos case filings, particularly by unimpaired claimants, but over-naming remains a problem. An analysis by the U.S. Chamber Institute for Legal Reform in 2021 looked at a sample (20%) of the almost 170 asbestos cases filed in Texas from 2015-2020. The data revealed 1,048 named defendants, including approximately 428 different companies. The average case filed in 2019, the last full year for which data was available, had 43 defendants. Some cases had more defendants. For example, the Robert Jenkins case filed in April of 2019 had 84 defendants. Small and mid-sized businesses are most likely to be over-named defendants.

High dismissal rates confirm the over-naming problem. Almost half (47%) of the companies named in the sampled Texas asbestos cases were dismissed without payment. At least 170 companies in the random case sample were dismissed from every asbestos case in which they were named.

Some more recent asbestos complaints filed in Harris County contain a shocking number of defendants. For example, among 2024 filings, the Vernon Shafer case listed 162 defendants, the James Johnson case listed 131 defendants, and the Ronald Ross case listed 116 defendants. Among 2023 filings, the Roy Kolojaco case listed 336 defendants, the Linda Hargrave case listed 250 defendants, and the Raymond Jones case listed 144 defendants. The Jesse McAdams case filed in 2022 listed 103 defendants. History suggests that most of these defendants will be dismissed in time because the claims against them are unsupported.

Require Disclosure

So far, eight states—Arizona, Alabama, Iowa, North Dakota, Ohio, Tennessee, Utah, and West Virginia—have enacted laws to curb over-naming in asbestos cases by requiring a plaintiff to disclose a plaintiff’s exposures to asbestos and their connection to each defendant. In these states, if the plaintiff fails to identify any connection with a particular defendant, that defendant is able to obtain an early dismissal. This approach reduces wasteful spending by over-named defendants. Dismissal of an over-named defendant is without prejudice, allowing the plaintiff to refile the claim if the plaintiff can show a connection to the dismissed defendant. Texas should adopt similar legislation.