May 10, 2019
President’s Message By Bryan Neft

When people ask me about my practice, I tell them that I’m litigator who handles a variety of commercial matters and toxic tort defense. For the last 25 years or so, a significant part of my practice has involved representing defendants in asbestos litigation in Western Pennsylvania. This makes me, among hundreds of other attorneys practicing here, a “Fiber Fighter.” It was a term I first heard when I worked for Judge Nora Barry Fischer prior to her ascendancy to the bench.

Asbestos litigation has been ongoing for nearly 40 years. The asbestos docket in Allegheny County is vibrant, and it’s probably the most active docket in the civil division. For those unfamiliar with the practice, I thought I would share a little insight about what the practice is like. Three judges are currently assigned to handle the docket: Arnold Klein, Patrick Connelly and Don Walko. Judges handling the docket over the last 15 years include Robert Colville, Michael Della Vecchia and Michael Marmo.

The asbestos docket has a case-management order unique to the practice. Lawyers representing plaintiffs have the ability to place cases on an expedited docket, which allows the case to be placed on a trial list within 10 months. Cases not placed on or removed from the expedited docket frequently go onto a backlog docket. After three years, those cases are set for trial. Once a case is placed on the expedited docket, there is a period of condensed discovery. Deposition of plaintiffs and coworker witnesses frequently take several days, with 20 or more attorneys present to ask questions on behalf of 50 to 100 (in some instances greater) defendants. Then there is a period of bifurcated summary judgment, first on product identification. Once the court rules on those motions, the remaining parties are permitted to file summary judgment motions for any other reason.

In any given trial term, there might be 10 to 15 cases placed on the expedited docket. For each case, the defendants file on average 50-80 motions for summary judgment for lack of product identification. Of those, maybe 20-25 will be argued. So, for 10 cases, 500-800 motions may be filed, of which 200-250 are argued. The numbers are staggering.

Both Judges Connelly and Klein set aside approximately 6-8 days each in non-trial term months (including summer) to consider the expedited motions for summary judgment. The two judges coordinate so that they are not scheduling arguments on the same day. They also set aside two days each month for all other motions. Once all summary judgment motions are resolved, the cases proceed to trial where the overwhelming majority are settled. In the past nine years, I can only think of three cases that actually went to verdict. In cases taken to trial, jury selection can involve 20-30 attorneys and may take two days or longer. Allegheny County has had both significant plaintiff verdicts and defense verdicts.

Judge Walko handles the backlog docket, which consists of 25 or more older cases to be worked up for trial in January of the year following their listing on the docket. These cases follow a track similar to the expedited cases.

The asbestos docket can be intense. Many of the defense attorneys represent multiple defendants in multiple cases. Management of the docket is paramount. Besides Allegheny County, there are active asbestos dockets in Cambria and Erie counties, as well as in West Virginia. Asbestos attorneys have to keep track of all of the evidence, which in some cases may include 10 or more 300-page transcripts. Plaintiff summary judgment responses consist literally of thousands of pages of evidence, some developed over many years. Despite all of the cases, all of the parties, all of the evidence and all of the deadlines, the attorneys and the court manage to work through all of them.

In recent years, a number of out-of-town lawyers have advertised in Western Pennsylvania and have begun to file suit in Allegheny County. Nonetheless, the lion’s share of cases still belong to local plaintiff attorneys who have practiced in asbestos litigation for years. They include D’Amico Law Offices; Law Office of Lee Davis; Goldberg Persky & White; Kapusta, Deihl & Schweers; The Nemeroff Firm; Robert Peirce & Associates; and Savinis, Kane & Gallucci. All of these firms approach their cases differently, yet they have one thing in common that their out-of-town competitors do not: they know where asbestos was present in Western Pennsylvania.

On the defense side, there are simply too many great lawyers in the asbestos bar to name them all. I have worked with many of them since our practices were just starting. Now we are watching a new guard of attorney enter the practice. The members of the defense bar also have one thing in common. They, too, know where asbestos was present (and where it was not), in Western Pennsylvania.

Over the years, the litigation has changed. New defendants are sued every day. Since 2012, employers in many instances have not been covered by Workers Compensation because of the latency of the diseases. Many cases from around the country are filed in Madison County, Ill. At one time, a number of cases from around the country were filed in Philadelphia. National firms have tried to make inroads in Allegheny County. To date they have not become much of a presence. It’s because of the strength of the local bench and bar that the practice remains primarily an Allegheny County practice.

To talk about these issues further, please contact ACBA President Bryan Neft at 412-325-3317 or BNeft@spilmanlaw.com.