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Asbestos Lawyers Balking at Court's Plans to Erase General Orders

SAN FRANCISCO — Lawyers from both sides of the asbestos bar are balking at San Francisco Superior Court's plan to do away with most of the general orders that have governed asbestos suits for decades.               

"It's a shot from the blue," said Stephen Tigerman of plaintiff firm Harowitz & Tigerman. In a letter to the court, Tigerman wrote that general orders — setting in place rules for discovery and a host of other procedural issues — have helped the asbestos docket move efficiently for more than 20 years. The orders need to be updated, in light of a shrinking caseload, Tigerman wrote the court, but there is "little cause for throwing out the baby with the bath water."

Judge Harold Kahn, who ran the asbestos department until recently, said many of the orders are out-of-date and that members of the bar have been discussing the need for changes with him for many years. He'll hold a hearing on the proposed changes on Nov. 15.

Defense attorney Eliot Jubelirer, a partner at Schiff Hardin, said that some of the existing general orders are "probably anachronistic," but proposed in a letter to the court that, instead of doing away with them all, the court appoint a committee that could evaluate the orders and fashion updated ones as needed.

"Some of the general orders should be saved or modified, but left in place," he said, adding that some defendants do want them all repealed. "The best thing for the parties to do is to sit down and talk about what works and what doesn't work, make some recommendations to the court, and try to get a better understanding of the court's thinking."
Kahn said the lawyers are welcome to try to work out an agreement. "If there's broad consensus as to a new set of general orders, then perhaps the attorneys should go out and prepare them," he said.

Among the orders slated for axing is one that names Oakland firm Berry & Berry as the firm that collects and distributes medical reports on individual plaintiffs. Kahn said that doing away with that general order is not meant as an attack on the firm.

"The goal is not to harm Berry & Berry, or to benefit Berry & Berry," he said. "The goal is to come up with a system for the efficient handling of asbestos cases."
Without general orders, Kahn said, the Code of Civil Procedure would apply. But some lawyers say those aren't well-suited for the unique challenges of asbestos litigation.

As Sedgwick associate Allison Low, who represents General Electric Co., put in a letter to the court: "Complex asbestos cases are an anomaly, and — as the court knows all too well — can become unruly if left to their own devices."

Plaintiff lawyers are concerned that they weren't consulted about making changes. Some of them said they sought a meeting with Kahn, but he denied their request because he "thought it was inappropriate to have a private meeting when there's a public process" in place.

Kahn handed the asbestos department over to Judge Teri Jackson earlier this month. But court spokeswoman Ann Donlan said Kahn would handle the general orders proposal because the ball began rolling toward change prior to his move to law and motion.

From Cynthia Foster The Recorder October 31, 2011