Last quarter, I attended Perrin Conference’s half-day summit in New Orleans prior to the DRI Asbestos Medicine Conference. The opening panel focused on 2016 national asbestos litigation trends and included my colleague, Michelle Potter, KCIC Vice President, who presented some of KCIC’s complaint statistics through the third quarter of 2016.
One of the other panel speakers, Thomas W. Tardy, III, of Maron Marvel Bradley Anderson & Tardy LLC, presented recent verdict trends. After Michelle and Tom presented, I couldn’t help wondering if there was a correlation between states where cases were tried, versus states where cases were filed. I found that while one might logically expect a positive correlation between the number of cases tried and the number of cases filed by jurisdiction or plaintiff firm, the data doesn’t always support this theory.
I discovered this after the conference when I took the data that Mr. Hardy presented and compared it with KCIC’s data over the same time period:
What I found is that asbestos defendants won a greater percentage of cases tried to verdict in 2016 (46%) compared to 2014 (37%). While the number of asbestos plaintiff verdicts and total awarded damages has decreased over the last few years from 73 ($392 million) in 2014 to 48 ($198 million) in 2015, and finally to 39 ($183 million) by October 2016, it’s interesting to note that the average amount awarded per verdict has not decreased. The average verdict amount in 2014 was about $8.5 million compared to $8.7 million in 2016. So, we see that while defendants are not losing as much total money or trying as many cases compared to previous years, one plaintiff verdict will hurt just as badly financially. During this same time, the number of new filings also decreased slightly, but not at the same rates as verdicts.
Since 2014, 62% of all cases tried to verdict were tried in five states: California, New York, Pennsylvania, Florida and Louisiana. In that same period, the top five states for new filings — Illinois, Maryland, New York, Pennsylvania and Michigan — account for 65% of total filings. One of the biggest differences is Illinois, which had 29% of new filings — yet cases hardly ever go to trial there. Only 5% of new filings came from California, yet this is the state where the most cases are tried (26%). It’s interesting to note that of the top five states for verdicts, California is the only one where defendants won more than 50% of cases tried to verdict. Defendants have only won 17% of cases in New York, where most cases are tried in the NYCAL jurisdiction. Through the first three-quarters of 2016, we have noticed that from a new filings perspective, some of the top plaintiff firms for mesothelioma have expanded to New York.
Plaintiff Firm Trends
Over 250 plaintiff firms have filed a complaint since 2014. However, only 60 plaintiff firms have tried a case to verdict during that same period. We see that 11 plaintiff firms have accounted for 60% of total verdicts and 78% of awarded damages, while the top 11 plaintiff firms for new filings account for 59%. The plaintiff firms on each list are quite different; only Weitz & Luxenberg is on the Top 11 list for both verdicts and new filings. So, the question becomes: Why aren’t firms that file the most claims — like Angelos, Gori or Simmons — going to trial as frequently?
It’s probably not surprising to see that most cases that go to verdict are for malignant diseases. Since 2014, plaintiff verdicts were awarded in 64% of mesothelioma cases, compared to 38% of lung cancer cases. It is interesting to note that through three-quarters of 2016, 51% of mesothelioma cases were filed in Illinois, primarily in Madison County. As we saw earlier, cases hardly ever go to verdict in Illinois, so while most mesothelioma cases are filed in Illinois, they are tried elsewhere.
Looking ahead, it will be interesting to see if some of these trends continue. Are plaintiff firms reaching more settlements with defendants earlier in the process in order to avoid verdicts? Will we continue to see a decline in trials reaching verdict? Will defendants continue to win a greater percentage of cases tried to verdict? Will we continue to see a shift in where complaints are filed, and then potentially tried?
KCIC will continue monitoring and reporting on industry trends. With 2016 now fully behind us, we are starting to work on our “Asbestos Litigation: 2016 Year in Review” report, which will be available for download in March and include expanded new analysis. Stay tuned!