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Ex parte Flexible Products Co.6/3/2005
PETITION FOR WRIT OF MANDAMUS
This petition for a writ of mandamus arises from a number of actions in which 1,675 plaintiffs, all individuals who claim that they were injured by exposure to isocyanate while employed as coal miners, have sued 11 defendants, including Flexible Products Company and Micon Products International, Inc., all of which are involved in the manufacture, use, and distribution of isocyanate. The defendants seek an order from this Court requiring the trial court to set aside its case-management order ("CMO"), which consolidates the underlying actions and sets out various guidelines for litigating those actions in the Bessemer Division of the Jefferson Circuit Court, or, in the alternative, requiring the trial court to modify its CMO so that the trials of the actions are consolidated according to terms the defendants deem appropriate. The defendants also challenge the trial court's determination that venue for all of the plaintiffs is proper in Jefferson County and seek an order requiring the transfer of certain of the actions to Tuscaloosa County. Finally, the defendants challenge that aspect of the CMO that envisions the appointment of a special master to try the plaintiffs' individual claims in groups of 25.
The underlying cases began with three actions brought by the plaintiffs: Bice v. Micon, Inc. (CV-01-1194), filed in September 2001; Abernathy v. Micon, Inc. (CV-01-1341), filed in October 2001; and Acklin v. Micon, Inc. (CV-02-1518), filed in October 2002. In all three cases, the plaintiffs asserted claims of negligence, wantonness, outrage, failure to warn, violation of the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"), misrepresentation, concealment, breach of warranties, and conspiracy. On August 24, 2004, the plaintiffs moved to consolidate the three cases pursuant to Rule 42, Ala.R.Civ.P., and on November 17, 2004, the trial court issued the CMO addressing the motion to consolidate. In pertinent part, the CMO states:
"2. Motion to Transfer
"The Court finds under the Alabama Code of 1975, ยง 6-3-7(c), that venue is proper where the cases sought to be venued together involve common issues of law or material fact and the action can be maintained more efficiently and economically for all parties if consolidated and tried here in the Bessemer Division of Jefferson County and the interest of Justice supports the joinder of the parties as Plaintiffs in one action as provided by [Ala. R. Civ. P.] Rule 42.
"3. Consolidation
"The above styled cases are consolidated for pretrial purposes, discovery, motions, and trial under [Ala. R. Civ. P.] Rule 42(a). This order constitutes a determination that these actions are consolidated for trial. They are consolidated because they contain common questions of fact and are sufficiently complex. The claims by the Plaintiffs in those cases are significantly the same and raise the common questions of fact.
"The Court has determined that these 3 cases and any other cases subsequently filed against these Defendants shall receive aggregated treatment to bring the claims and case together for pretrial management, settlement, or trial.
"These 3 cases in reality are 1600 or more cases involving mass tort litigation. Here there is an event or series of related events injuring a large number of people. The claims in these cases arise out of an identifiable event or product and it affects a very large number of people, it is alleged. The cases are consolidated even though more than one work site was involved, Plaintiffs had more than one occupation within the mines, and the exposures occurred over a fairly long period with different illnesses r
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