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Minnesota and North Dakota Asbestos Litigation
A Comparative Analysis
By: Kent B. Gravelle, Esq.
I have been defending small corporations in both Minnesota and North Dakota asbestos litigation for over five years. The differences between the two jurisdictions in this specialty area of the law are stark.
For instance, in North Dakota asbestos litigation, cases generally come before the court in groupings based on the county of filing. Thus, a number of plaintiffs (often anywhere between five and fifty) are grouped into sets entitled Cass 6, Grand Forks 17, or Morton M, for example. (The city of Fargo is the county seat for Cass County, Grand Forks is the county seat for Grand Forks County, and Mandan is the county seat for Morton County, across the Missouri River from Bismarck, North Dakota).
These sets come up for summary judgment hearings as a group, come up for trial as a group, and are settled as a group. In Minnesota, plaintiffs are not grouped into sets, and thus, cases come up for summary judgment hearings individually, are tried individually, and are settled individually (although a number of cases are often settled at the same time at court-mandated settlement conferences). Furthermore, all Minnesota litigation is venued in Ramsey County (St. Paul, Minnesota) even if the plaintiff and his worksites are located hundreds of miles away in another corner of the state.
Another stark difference is the number of defendants sued. In Minnesota, Plaintiffs’ counsel generally sues between five and thirty defendants and provides a Statement of Factual Basis which provides each defendant with a summary of the evidence which shows why that particular plaintiff may have been exposed to that particular defendant’s asbestos-containing product. Often, this consists of cites to deposition transcripts of other workers who previously stated under oath that they used a particular asbestos-containing product at a particular site. Partly because only five to thirty defendants are usually sued, the costs of settlement in Minnesota are generally much higher than in North Dakota. In addition, if a defendant believes that another unnamed outside defendant is also at fault, the original defendant must bring a third-party complaint against the outside defendant and possibly even bring a contribution action against that defendant after settlement or trial, if the court determined that it was too late to bring in the third-party before trial.
In North Dakota, Plaintiffs’ counsel generally sue over 130 defendants in every case, whether the defendant’s products were near the plaintiff’s work site or not. One exception appears to be friction cases (plaintiffs whose exposure was from asbestos in brakes), wherein Plaintiffs’ counsel generally sue a much smaller number of defendants. However, in all other cases, over 130 defendants are sued which leads to many defendants who are unsure whether they have exposure until after a particular plaintiff is deposed. While this uncertainty has its own costs, the large number of original defendants does prevent the need for third-party practice and also decreases settlement costs because the settlement pie is divided into much smaller slices.
Recently, one of the defense liaison counsel in North Dakota asbestos litigation has engaged in litigation in Grand Forks County seeking to force North Dakota plaintiffs’ counsel to convert his practice into something more similar to that in Minnesota. In other words, requiring that suit cannot be brought against a defendant without something akin to a MN Factual Basis Statement, showing that the individual plaintiff has a good-faith basis for bringing suit against each individual defendant. On May 19, 2008, the Grand Forks County District Court denied the motion and thus, unless the order is appealed, it appears there will continue to be wide differences between asbestos litigation in Minnesota and North Dakota.
See also: A Short Overview of Asbestos Litigation in Civil Law Countries; Asbestos Punitive Damages |
