Judge Bolle and Eric Abramson Senate Hearing HB 5456
Sen. Shirkey: Next, I’d like to bring up Eric Abramson from the Michael Serling Professional Corporation. Eric wishes to speak in opposing the bill. Take your time; you were very patient in waiting for us, so take your time.
Abramson: The only question I had was a question of procedure. There was a judge who also had testimony by video. Would you rather do that before me, or would you rather me go?
Sen. Shirkey: That’s your call. He’s part of your testimony. You can do it now, or you can do it after. Your call.
Abramson: Thank you, sir. I’d like to play for you the videotape statement of Judge William Bolle. If you give me just a quick second to pull it up here.
Judge Bolle: Senator Shirkey, and Senators of the committee, thank you for allowing me to appear today by video. My health would not allow me to appear in Lansing today. My name is William Bolle, and since June of 1969, I have served as a municipal judge, a district judge, and chief judge of the 52nd district court in the cities of Troy and Clawson. I am the longest-serving judge in Oakland County and the second-longest in the state of Michigan. In 2017, I retired from the bench after I was diagnosed with malignant mesothelioma, which was caused by my exposure to asbestos decades ago. I continue to battle the disease and underwent extensive thoracic surgery a few weeks ago as part of my treatment plan.
I understand the Michigan Senate is considering a bill intended to increase transparency in the handling of asbestos personal injury cases. A part of that bill requires plaintiffs to provide defendants with copies of all bankruptcy claims and supporting materials submitted to asbestos trusts within 30 days after the initial filing of an asbestos personal injury lawsuit. I understand that under current procedures in Michigan courts, information about bankruptcy claims does not have to be provided to defendants until 180 days before trial. The proposed Bill shortens that time to a mere 30 days after filing the complaint. I believe it will be impossible to gather all of the information and documentation necessary to support bankruptcy claims for all of the trusts where claims can be filed within such a short time period. Since the proposed Bill provides that a plaintiff’s case will either be stayed or dismissed for not giving this information to defendants within 30 days, a plaintiff such as myself will be deprived of due process. Since my terminal disease will continue to run its course while I am prevented from moving my case forward. Plaintiffs like me would be precluded from preserving our own testimony about our cases since dismissals or stays will halt any proceedings such as depositions or other discovery. By the time the required disclosures and Trust certifications are completed, it is likely my disease will have progressed to the point where I will no longer be able to assist in the handling of my case, or to be around to see it settled or tried.
The current system of requiring bankruptcy disclosures 180 days before trial gives me and others in my circumstances a reasonable opportunity to obtain the necessary information to provide transparency in the litigation process, while at the same time allows me the chance to exercise my right to prosecute my claim in a timely fashion. I urge you to consider using the 120-day before trial time limit that has been adopted in similar statutes in the states of Utah, South Dakota, Texas, and West Virginia, as that will provide fairness and due process to victims like myself here in Michigan. Even the National Conference of Insurance Legislators adopted a 120-day before trial disclosure time in its transparency model act approved in July 2017. Thank you.
Sen. Shirkey: Eric, can we count on you conveying to the judge our thanks for his video testimony, please?
Abramson: You certainly can. All right, thank you, Senator, and I’m sure he’s watching you today. In the words of Yogi Berra, I want to begin, before I begin talking, let me just say this: I want to thank the members of the committee, Senator Shirkey, for hearing us today, members of the committee for allowing me the opportunity to speak. I’m sure that what we’ve had to say, you will weigh it accordingly, and I appreciate your consideration.
A little background: my name is Eric Abramson, and I’m from the Law Offices of Michael Serling in Birmingham, Michigan. In 1975, Mr. Serling filed the first mesothelioma lawsuit in Michigan. Our firm has represented asbestos victims for over 40 years, and I have been a member of the asbestos steering committee in Wayne County for the past 15 years. The committee is made up of plaintiffs’ lawyers and defense lawyers. I’m here today to talk to you about one thing, and that’s the proposed 30-day rule and why it is a denial of due process.
For over 40 years in asbestos litigation in Michigan, five Wayne County judges, numerous out-county judges, and federal court judges throughout the state of Michigan have all scheduled discovery of cases to allow plaintiffs to have an appropriate amount of time to investigate their cases. We search for asbestos product exposures, obtain Social Security printouts which often take 6 to 9 months to get, gather evidence on asbestos used in defendants’ products, we interview witnesses about asbestos products at multiple job sites. Some we have some information about, some we have little or no information about, and most importantly, we work with the plaintiff to work around their treatment schedule to help them preserve their own testimony so that their case can proceed if they should die before trial, which is often the case. Indeed, most mesothelioma victims will not survive more than a year or two following diagnosis.
The courts have allowed adequate time to gather up the medical records, the pathology reports, x-ray findings, and to hire experts. It’s not just a matter of plaintiffs’ counsel doing a more efficient job of managing their cases. Without the ability to conduct discovery using the tools the court case provides, the plaintiff is unable to gather the evidence that’s necessary to file and complete the full proofs of claim forms. It’s impossible to do all of that discovery within 30, 60, or even 90 days from the filing of a complaint. It’s my understanding that there is some discussion being had about triggering this, possibly working backward from a trial date, which makes an awful lot more sense because that will allow the discovery process to go forward. Plaintiffs will be able to give all of the information in its most complete form so that everybody has transparency. Nobody disagrees that transparency is important. What we’re asking you to do is to balance transparency with the rights of due process, and there is a serious debate about due transparency. We can all agree transparency is important, but equally important are those considerations of due process. You heard from the American Legions, the firefighters, the first responders, Judge Bolle, Mr. Pascarella, and others. Due process not only protects the dying plaintiff, it also assures fairness to all parties in the litigation, including codefendants.
The proposed asbestos bankruptcy trust transparency bill, HB 5456, which you’re considering, eliminates due process currently provided by imposing that mere 30-day limit after the filing of the case for a plaintiff to accomplish all of what has for up to now taken 12 to 18 months of discovery to accomplish. Plaintiffs, defendants, and courts have worked hard to develop this fair system for asbestos personal injury cases. Clearly, this committee is working to codify transparency, and no one disagrees that you should do so. All I’m asking is that transparency be provided without harming the asbestos victim’s right to due process. Allowing discovery to occur prior to requiring plaintiffs to file their disclosed bankruptcy trust claims provides the due process the plaintiffs need to investigate their cases. Plaintiffs can then file their bankruptcy claims and disclose them to all of the defendants well in advance of a trial. This provides complete transparency without harming asbestos victims. Of the 12 states that have passed asbestos transparency bills, eight have declined the mere 30-day restriction from the time of filing of the complaint. In the states of Utah, Texas, South Dakota, West Virginia, and Tennessee, the legislators imposed the bankruptcy transparency provision to trigger 120 days before trial. That’s key.
This has been the trend in recent years and recent bills dealing with asbestos transparency. The National Conference of Insurance Legislators’ asbestos bankruptcy trust claims transparency model provides for this transparency while allowing for the necessary due process. You will note that this is the exact language of the West Virginia bill, the National Conference bill. These states and the National Conference have adopted a position which preserves due process and provides the transparency that we all agree is necessary.
If this committee and the Michigan Senate want to assure that complete and proper disclosures are made of bankruptcy submissions in asbestos litigation, they should provide asbestos victims with a reasonable amount of time to meet those goals of transparency and due process. I urge the committee members to look at the bills that passed in Utah, Texas, South Dakota, West Virginia, Tennessee, and study the National Conference bill. Transparency can be achieved by triggering disclosures of bankruptcy trust claims materials no later than 120 days before trial. I thank you for allowing me to make my statement.
Sen. Shirkey: Thank you, Mr. Abramson. Any questions from committee members? Senator Warren?
Sen. Warren: Thank you, Mr. Chair, and thank you for your testimony and for providing the judge’s testimony. We’ve heard some testimony last week and this week, and trying to sort out how this process actually works as a non-attorney who’s not had the chance to experience the things you’ve experienced. I guess it would be a little bit helpful for me to understand more sort of what is your client’s, so, we’re trying to figure out these timelines and what would be a typical client’s experience for you? Like, how would they walk through the steps? How long, what would you learn in the discovery process? And what timeline would be reasonable, do you think? You just said 120 days before trial, but is there something else that we should understand about that?
Abramson: Absolutely, thank you, that’s a great question, Senator Warren. The typical plaintiff comes in, and you have to understand that a mesothelioma patient is really bouncing between doctors. They have some time for their lawyers, but they’re dealing with surgery, as Judge Bolle went through, and they’re really mostly doctoring at this point. But they come in and they give you whatever information that they know of exposures that occurred 20, 40, 60 years ago.
Then we have to take the information that they gave us, like in Judge Bolle’s case, his exposure came through his father, which is one step removed, and at a site that we have little to no information about. We determine which defendants are typical in his case, so we have information on some of the places that he was exposed, and then we begin the discovery process. When you file the complaint, then it takes 90 days from the time you file the complaint to get service. Then from that point on, defendants have 21 days to respond to the complaint, and then it’s in that timeframe, so now you’re out 120 days, then the discovery progresses. We then move to get records from the places where he worked, and we’re able to look at those records. Sometimes you have to go back and forth to the court two or three times to get court orders to finally get them to give you the records, but when you look at those records, you’ll see the identity of products that were used. You take those products and you trace them – where did this company buy its asbestos from to use in its pumps, or to use on its boilers? And we have to trace them back to other defendants. And you’re constantly going back and forth to court to get court orders, sometimes. And sometimes it works on a phone call. I mean, in Michigan, we have a very good group of plaintiffs’ and defense lawyers that have worked through these, but it is not by any reason any faster than, literally it’s down to a science at a year and a half or even a year to a year and a half, because there is so much discovery that has to take place. There are so many records. Some of these job sites have tens of thousands of records that you’re digging through, and they just don’t come up that easily, you really have to go and press to get the records. So to require somebody to file those bankruptcy claims in full, some of the information that we would need, we would never get because the case would be stayed under the current version of the bill. But if you trigger the bankruptcy trust claim submission and certifications to occur 120-180 days before trial, that’s already given us that year and a half that we need to work up the case so that those claims can be fully completed. Everybody wants to be on the same page. Does that help? Thank you, ma’am.
Sen. Shirkey: Thank you, sir.
Abramson: Thank you, Senator. Appreciate it.