In an asbestos matter, 15 months after filing suit—after most of the deadlines for discovery and naming of witnesses had passed—the plaintiffs filed an amended complaint joining several tobacco companies on a theory of synergy. The plaintiff’s argued that their lung cancer was caused both by smoking and exposure to asbestos. The Circuit Court dismissed them as being improperly joined on the special asbestos docket but with leave to refile the case on the general civil docket. Sixteen months later, after all claims against the asbestos defendants had been resolved, the plaintiff’s moved to reinstate the tobacco companies in the asbestos case. The Circuit Court again denied the motion, the plaintiffs appealed, and the appeal was denied by the Court of Special Appeals. The case was then appealed to the Court of Appeals of Maryland, which agreed to review.
The Court of Appeals of Maryland held there was a final judgment in the case and the appeal was moot, as there were no longer any asbestos defendants left to join with. However, having taken the case, the Court of Appeals gave its own guidance regarding the propriety of joining asbestos and tobacco companies in a single action.
The court’s guidance on the joinder issue included the discussion that prior courts have explained that the purpose of Rules permitting the joinder of multiple parties and claims “was to remedy the procedural and substantive defects in the law which prevented the resolution in one action of the rights and obligations of all parties whose connection with the case arose out of the same source and occurrence and that courts have been liberal in utilizing such rules to permit the trial of connected issues in one action. More recently, it was confirmed that the purpose behind the joinder of parties is to simplify and expedite proceedings and to avoid the useless duplication, expense, and possible uncertainty of more than one trial. [Citation Omitted].
In a prior case, such as Gress, requests for joinder were denied as to tobacco and asbestos defendants because (1) those claims involve different kinds of products, methods of distribution, and uses, (2) the case against the asbestos defendants is governed by the special procedures that are reserved for asbestos cases, and (3) significant problems would arise either in subjecting tobacco companies to those procedures or having separate procedures for the two sets of defendants. In that last regard, the court noted that applying those procedures would be prejudicial to the tobacco companies if they were added “now to these cases.”
The Court of Appeals of Maryland further emphasized that at issue were lung cancer cases that have been removed from the inactive asbestos docket, and there was no real prospect of tobacco claims being placed on that docket. Additionally, two other legitimate concerns not fully addressed included (i) the fact that the plaintiffs did not attempt to join the tobacco defendants at the outset but waited 15 months to join them and (ii) they do not suggest that they were unaware of the synergy theory earlier. The plaintiff even noted in their second amended complaint that this theory was publicized more than 50 years ago. The court also noted that if a joinder was granted, it would create procedural inefficiency. By the time the plaintiffs decided to join the tobacco companies in this case, discovery was virtually complete, most of the deadlines set in the scheduling order had passed, all fact witnesses and experts had been identified, trial was to commence in five months when everything was thrown into disarray — not only new defendants, but new theories of liability against all defendants requiring expanded or wholly new expert testimony, reopening of discovery, really starting over.
The court finally summarized its opinion by explaining, more generally, joinder of asbestos and tobacco defendants raises the issue of the extent to which, if at all, the special procedures applicable to asbestos cases should extend to tobacco companies. However, there has yet to be any recorded analysis of how, or whether, the two different pre-trial procedures could be effectively and efficiently meshed. Although not applicable in this case, the court advised, in any future cases, at least those in which the proposed joinder is a timely one, it will be incumbent on the plaintiffs seeking to join tobacco and asbestos defendants to address these issues objectively and in detail and for the court to give fair consideration to all proposals and objections.