The Michigan Supreme Court in a 4-3 decision ruled yesterday that lower courts must hear asbestos injury cases individually and may not bundle them for settlement or trial.

Justices in the majority said their decision meant cases would be resolved in a way that did not permit serious claims to be used as "leverage" for settlements in less serious cases.

But the minority justices issued spirited dissents decrying the decision and one forecast that the delay from an increased caseload will mean many plaintiffs will die before their suits are tried.

The court's order does not prevent consolidating of cases for the discovery of evidence process.

Justice Stephen J. Markman, in a majority concurring opinion noted that the court had held two public hearings and considered the bundling issue for three years.

He wrote that he believed the anti-bundling order will "help to restore traditional principles of due process in asbestos cases by ensuring that they are resolved on the basis of their individual merit, and that they do not serve merely as 'leverage' for the resolution of other cases..."

The court's action, he wrote, will "advance the interests of the most seriously ill asbestos plaintiffs whose interest have not always been well served by the present system, where available funds for compensation have been diminished or exhausted by payments for claims made by less seriously ill claimants..."

Justice Markman's opinion said the court's order will mean the state legislature can "undertake an assessment of the true costs" of such litigation, which have been "camouflaged by the 'bundling' process, at the expense of fundamental due process rights.

Justice Marilyn Kelly wrote that the decision was "ill-advised and indefensible" making "a mockery of due process and creates serious problems. It virtually ensures that justice will be so delayed for many diseased plaintiffs that they will never live to see their cases resolved."

She predicted that it would also mean increased cost for Michigan businesses defending claims they believe baseless and cost taxpayers millions to at least 10 new circuit court judges.

Justice Elizabeth A. Weaver found the court was making a hasty "unrestrained and unwise" decision without sufficient information.

The majority, she wrote, had not addressed "how the increased caseload will be financed or who will bear the increased financial burden" as well as how increased caseload will be managed while new judges are created or how it will be handled "if those new judgeships are not created.

Dissenting Justice Michael F. Cavanagh noted comments of an energy company lawyer, who had handled 180 asbestos cases, who suggested the change from bundling would create a "quagmire" and "if it ain't broke don't fix it."

Attorney Mark A. Behrens, with the Washington office of Shook, Hardy & Bacon, who wrote a legal analysis critiquing bundling that was cited by Justice Markman, wrote that "the practical effect of the order will be to discourage the filing of flimsy or meritless cases. These cases are not strong enough to stand on their own at trial; personal injury lawyers may not bring them in large numbers now that the economic incentive has been substantially reduced."

Special Reports /

Mich. High Court: Try All Asbestos Cases Separately

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