August 9, 2006
  
  
  ADM File No. 2003-47
  
  Administrative Order No. 2006-6
  Prohibition on "Bundling" Cases
                           
  
       On order of the Court, the need for immediate action having been found, the
  following Administrative Order is adopted, effective immediately.  Public comments on this
  administrative order, however, may be submitted to the Supreme Court Clerk in writing or
  electronically until December 1, 2006, at:  P.O. Box 30052, Lansing, MI  48909, or
  MSC_clerk@courts.mi.gov.  When filing a comment, please refer to ADM File No. 2003-47. 
  Your comments will be posted, along with the comments of others, at
  www.courts.mi.gov/supremecourt/resources/administrative/index.htm. 
  
       The Court has determined that trial courts should be precluded from "bundling"
  asbestos-related cases for settlement or trial.  It is the opinion of the Court that each case
  should be decided on its own merits, and not in conjunction with other cases.  Thus, no
  asbestos-related disease personal injury action shall be joined with any other such case for
  settlement or for any other purpose, with the exception of discovery.  This order in no way
  precludes or diminishes the ability of a court to consolidate asbestos-related disease personal
  injury actions for discovery purposes only.  
  
       For purposes of this Administrative Order, "asbestos-related disease personal injury
  actions" include all cases in which it is alleged that a party has suffered personal injury
  caused by exposure to asbestos, regardless of the theory of recovery.
  
       Staff Comment:  This Administrative Order prohibits the practice of "bundling," or
  joining, asbestos-related personal injury actions in order to maximize the number of cases
  settled.  The order does not, however, preclude consolidation for discovery purposes. 
  
       The purpose of this order is to ensure that cases filed by plaintiffs who exhibit
  physical symptoms as a result of exposure to asbestos are settled or tried on the merits of that
  case alone.  Bundling can result in seriously ill plaintiffs receiving less for their claim in
  settlement than they might otherwise have received if their case was not joined with another
  case or other cases.  
  
       The order is designed to preclude both the practice of settling cases  in which
  plaintiffs with symptoms and plaintiffs without symptoms are settled together, as well as the
  practice of settling cases in which the plaintiffs are similarly situated (either with or without
  symptoms allegedly related to asbestos exposure.) 
  
       The staff comment is not an authoritative construction by the Court.
  
  Markman, J. ([concurring]).  This Court, having conducted two public
  administrative hearings on asbestos litigation, and having considered for more than three
  years whether, and how, to respond to such litigation, I join fully in this administrative order
  for the following reasons: (1) unlike other remedial proposals, such as the establishment of
  an inactive asbestos docket, I believe that this "antibundling" administrative order
  indisputably falls within the scope of our judicial powers; (2) this administrative order will,
  in my judgment, 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; (3) this administrative order will,
  I believe, advance the  interests of the most seriously ill asbestos plaintiffs whose interests
  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, Behrens & Lopez, [Unimpaired asbestos dockets], 24 Rev
  Litig 253, 259-260 (2005); (4) at our most recent public administrative hearing on May 6 of
  this year, all who spoke agreed that each claim should be decided on its own merits and that
  serious claims should not be used to leverage settlements in less serious cases; and (5) this
  administrative order will better enable the Legislature, which is considering asbestos
  litigation, to undertake an assessment of the true costs of asbestos litigation.  At present,
  these costs have been camouflaged by the "bundling" process, at the expense of fundamental
  due process rights.
  
  Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.
  
       Cavanagh, J. ([dissenting]).  For some time this Court has had on its
  administrative agenda consideration of the adoption of a docket-management system for
  asbestos-related litigation.  We are also well aware that the Legislature is considering
  legislation in connection with this area.  Today, before knowing what long-range plan or
  system, if any, is appropriate for this area of litigation, the Court, putting the cart before the
  horse, reaches out and meddles with the settlement practices currently in place.  The
  comments the Court has thus far received do not evidence any crisis-proportion problems
  and the true resulting costs to the system of today's order remain unknown.  Accordingly, I
  cannot agree with this order.
  
  Weaver, J. ([dissenting]).  I dissent from the precipitous adoption of this
  "antibundling" order, which precludes "bundling" of asbestos-related cases for settlement and
  trial purposes.  This haste, without sufficient information, is unrestrained and unwise.
  
  "Bundling" refers to the trial court procedure of grouping asbestos cases together for
  trial and settlement purposes, using stronger cases as leverage to settle cases grouped
  together.
  
  The Court does not know enough about how this "antibundling" order will affect
  current trial court operations, particularly in Wayne County and other counties from which
  asbestos-related cases originate. The Court needs to be certain that the attempted solution to
  due process concerns does not create even greater due process concerns and other problems.
  
  It is undisputed that adopting this "antibundling" order will increase the number of
  asbestos cases that are litigated, as opposed to settled.  Judge Robert J. Colombo, currently
  the only circuit judge in Michigan who hears asbestos-related cases, has informed this Court
  that, in his opinion, adopting any "antibundling" order will require 10 additional judges to
  handle the increased caseload.
  
  If the "antibundling" order does require 10 additional judges, it would represent a
  significant financial burden on the state and on Wayne County.  The majority has not
  addressed how the increased caseload will be financed, or who will bear the increased
  financial burden.
  
  Further, the majority has not addressed how the increased caseload will be managed.
  Judge Colombo has asserted that 10 new judgeships would be needed.  The majority has not
  addressed how 10 new judgeships would be created and funded.  Even if the 10 new
  judgeships are created, the majority has not addressed how the increased caseload would be
  managed during the minimum of at least one year that it would take to create and implement
  new judgeships.  Finally, the majority has not addressed how the increased caseload will be
  managed if those new judgeships are not created.
  
  Currently, the asbestos docket represents one quarter of one judge's docket.  The
  dockets of the other 68 judges in Wayne Circuit Court and Wayne County Probate Court
  handle the civil, criminal, and child and family cases.
  
  The majority order cites "fundamental due process rights" in asbestos cases as a
  reason to immediately implement the "antibundling" order.  But determining whether
  asbestos litigants' due process rights have been violated requires a complex and in-depth
  analysis, rather than simply stating, as the majority does, that rights have been violated.
  
  Further, the immediate increase in the asbestos docket will affect the distribution of
  court resources, including the trial judges' time spent on all other cases.  There will be fewer
  resources available for civil, criminal, and child and family cases, because the resources will
  be diverted to manage the new increased asbestos docket.  Depriving civil, criminal, and
  child and family cases the proper resources to adjudicate them could create its own new set
  of due process problems.
  
  It is true that this Court has had an administrative file on the asbestos docket open for
  more than three years.  However, the information submitted by Judge Colombo, that, in his
  opinion, precluding bundling would increase the caseload so as to require ten additional
  judges, was only recently made available.
  
  This Court should have further investigated the issues surrounding, and the potential
  effects of, any "antibundling" order before issuing this order.
  
  Even though this Court has had the file on asbestos issues open for over three years,
  by immediately adopting this "antibundling" order, this Court is acting precipitously, without
  restraint, and therefore unwisely.
  
  Kelly, J. ([dissenting]).  Today's decision to outlaw the bundling of
  asbestos-diseases cases in Michigan courts is both ill-advised and indefensible.  The
  decision purports to restore due process to litigants.  It does not.  Instead, it makes 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 case
  resolved.  It promises to force a sizable and needless increase in the funds required to
  operate the circuit courts at a time when the state's economy is far from robust.   And, until
  new funds have been raised, unbundled asbestos-diseases cases will clog our courts'
  dockets.  The congestion will bring with it years of delay to individuals sick and dying of
  work-related lung diseases.  
  
  It is not merely plaintiffs who will be burdened by the newly created problems.
  Unbundling will increase the cost to Michigan businesses of defending asbestos-diseases
  claims that they believe to be baseless.  Reliable expert information and unrebutted
  statements to this Court project that unbundling in Michigan will require the addition of at
  least ten new circuit court judges.  The cost to taxpayers will be in the millions of dollars. 
  And delays of four to six years will occur in resolving asbestos-diseases cases pending the
  addition of these new judges.  Given the benefits of the current system to both sides and to
  the taxpayers of the state, I would retain it.
  
  The current system functions in this manner:  A judge groups asbestos-diseases
  cases on the basis of a commonality among them.  For instance, cases in which the plaintiffs
  claim harmful exposure to asbestos in one workplace are grouped together.  The judge then
  tries one claim that is representative of the group.  The results of the trial are extrapolated
  to the rest of the claimants.  The extrapolation provides a remedy for all deserving claimants
  in the group, not just the most seriously ill.  The effect is that almost all claims in the group
  are settled without the time and expenses engendered if each were to receive a full trial.  It
  efficiently allows the court to resolve large numbers of cases in a short time.  Claimants
  obtain a recovery more quickly than traditionally, and defendants save the expense of
  numerous trials.  
  
  Critics of this system claim that bundling can result in seriously ill plaintiffs
  receiving less for their claims in settlement than they might have received in an individual
  trial.  Proponents of the system respond that, in traditional settlements or trials, most
  plaintiffs, especially those suffering from serious injuries, recover only a fraction of their
  actual losses.  Critics insist that the current system permits part of the finite amount of
  funds available for diseased claimants to go to the less seriously injured.  Proponents
  respond that the amount of settlement monies going, perhaps needlessly, to those less
  seriously injured is more than offset by the savings in litigation expenses occasioned by
  bundling.    
  
  Critics also assert that bundling violates due process requirements.  But the Ninth
  Circuit Court of Appeals has reached the opposite conclusion.  It approved bundling,
  finding that it complies with due process requirements.  In fact, some legal scholars
  believe that, in the handling of these cases, claimants will lose, not regain, their due process
  rights if judges are unable to bundle them. Nonetheless, today the Michigan Supreme
  Court has apparently rejected the Ninth Circuit's reasoning.  Justice Markman explicitly
  concludes that this administrative order helps to restore "traditional principles of due
  process."   
  
  One can only express dismay at the majority's decision to prohibit the bundling of
  asbestos-diseases cases in Michigan.  Rather than restore due process as it pretends, the
  order seems designed to precipitate a crisis.  The existing system has functioned reasonably
  well for years.  And there is no indication that future problems will arise with it.  Asbestos-
  diseases cases are not increasing in number and are not expected to increase in our state. 
  But today's Supreme Court order will create an inability of the courts to resolve them
  expeditiously.  For what purpose?