*1 WILLIAMS, ex rel. Marvin STATE C. al., Relators,
et MAUER, F.
Honorable William
Judge, Respondent.
No. 68107. Missouri,
Supreme
En Banc.
Dec.
Rehearing Denied Jan.
297 argument, preliminary made its rule abso- granted respondent’s application lute. We transfer; jurisdiction. to we have Mo. Const, Y, Preliminary art. rule or- § quashed. dered I. Supreme
“The establish rules relating practice, procedure plead- to and ings for all courts and administrative tribu- nals, which shall have the force effect law_” Const, V, Mo. art. 5. Rule § permits 50.01 courts to trial “make rules governing judicial the administration of business the rules are not inconsistent Court, with the rules of this the Constitu- statutory tion or law force....” argue portions respon- Relators that dent’s order are inconsistent with Rules Relator contends Civil Procedure. that is, respondent’s therefore, in order excess respondent’s jurisdiction prohibition Sweeny, Thomas A. City, Kansas re- for appropriate remedy. Respondent is an lators. urges that his order is not inconsistent with Borthwick, James Eldridge, Truman K. Procedure; respondent the Rules of Civil Jr., City, for respondent. Kansas claims further that relators have ade- quate remedy appeal prohibi- on and that ROBERTSON, Judge. properly tion does not lie in this case. 4, September 1985, respondent, On appropriate compel Prohibition is Mauer, William Presiding Honorable F. judge comply a rules of trial with the Judge Circuit, of the Sixteenth en- Judicial adequate this Court where there is no rem (the tered management a case “or- order edy by appeal. Bullington ex State rel. v. der”) relating to sixteen pending civil suits Mason, 1980). (Mo. 593 224 S.W.2d banc alleging injuries. rel- asbestos-related appropriate a is also where trial Prohibition portions evant the Order are set out judge permit discovery seeks to which is Appendix By terms, A. its also order expressly forbidden statute. State ex applies asbestos-related filed actions Hospital v. Enright, rel. Faith 706 S.W.2d subsequent pur- entry. its The order (Mo. 1986). 852 banc ports procedure “to establish uniform dis- orderly conduct and coordination Here, respon relators claim that covery pre-trial procedures ... order dent’s order is forbidden Rule 50.01. pre-trial proceedings facilitate proper remedy to Prohibition is the test duplication, avoid ex- undue burden and respondent’s authority in such a circum pense possible....” whenever Corp. stance. State rel. ex Oil Gulf Weinstein, petition (Mo.App. Relators filed a a writ 379 S.W.2d prohibition however, 1964). caution, prelimi in the Appeals, Court of We that West- District, claiming ern nary prohibition or- rule in will be made abso contrary only der is the Rules of Proce- lute where there is a clear excess Civil jurisdiction. dure of this Court and ex is therefore null State rel. Public Defender Bonacker, pre- void. The Western District issued its Commission v. S.W.2d 1986). liminary prohibition, following (Mo. rule banc Relators claim that these con- II. 55.05, provides Rule that a tradict portions Those order that “(1) only petition need contain a short and authority relators claim exceed his can be showing plain statement of the facts dealing require- into issues divided relief, pleader is entitled plaintiffs’ petitions in as- ments for initial judgment demand for for the relief to (the issues”) “petition bestos-related cases *3 which he deems himself entitled....” (the relating discovery and issues to “dis- Paragraphs that 12 Relators also contend issues”). covery purposes discus- For of process and 13 relators’ due violate separately. sion we address these issues equal protection rights, unlawfully amend Procedure, and constitute the Rules of Civil A. impediment courts in to access to the requiring argue Relators Const, I, of Mo. art. 14. For violation § persons claiming injury from asbestos-re follow, do not reach the reasons which we file, products petitions: their lated to with regarding the merits of relators’ claims petition issues. (1112(a)), A list master identification of the relators in this action filed a Each physicians facilities a list of and medical petition damages prior entry for to plaintiff any at which the was treated of these relators respondent’s order. None 12(b)), (¶ illness the courts has been denied access to opinions indicating copies medical respondent’s None of these relators order. plaintiff that a or decedent had an asbes- petition dismissed for failure to has had his (If12(c)), tos-related disease 12 and 13 of the comply Paragraphs a list of lawsuits or workers’ com- order. pensation by plaintiff claims filed both for apparent that inspection, close it is On injuries asbestos and non-asbestos-related attempting protect to these relators are (¶ 12(d)),and rights plaintiffs may who file a of future
authorizations for defendants to obtain: claiming injury. petition an asbestos-related records, records, Security tax em- Social justiciabili principles of Prudential records, compensation ployment workers’ adhered, long ty, this Court has to which records, hospital physician medical standing bring require party have to that a records, records, military union records requires Standing that a an action. and Veterans’ Administration records arising personal stake from a have a (¶ 13), imposes injury. Harrison v. respondent’s order unfair threatened or actual (Mo. 263 banc County, 716 S.W.2d arbitrary on asbestos victims Monroe burdens 1986). institution of their in connection with the challenge also Para-
lawsuits. Relators injury Here, a threatened relators claim requires 11 that: graph of the order which allege may asbes- plaintiffs future who to include, to the petitions All future shall They personal have no injuries. tos-related known, diagnosis of the challenge Paragraphs then 12 extent to stake their disease, Relators alleged respondent’s the date order. asbestos-related and 13 of disease, therefore, standing to chal- are, the al- diagnosis without respon- requirements of lenge petition exposure, plain- and the leged period of dent’s order.1 security number. tiff’s social respondent’s or- whether urge respondent’s We do not determine order con- 1. Relators also do we decide or a rule. Nor der is an order adopted a rule was without stitutes a apply, applies, or could whether this order majority judges circuit vote the circuit yet of action for persons have to file causes who of the Circuit Court in violation of Rule 100.2.3 injury. asbestos-related provides: County. of Jackson Rule 100.2.3 scope in its decision is limited This majority a These rules be amended respondent’s rela- applicability order these purpose. judges meeting circuit for that all requirements justiciability Because of tors.
299 Rules, B. with our adopt we shall that inter- pretation. regard issues, With the discovery rela- urge
tors that:
(1)
Paragraph
order
violates Rule
imposing
57.03
additional
prohibits
50.01
a circuit court
Rule
procedure
taking
a
from
a
adopting
rule that is inconsistent
deposition;
with the
this
Douglas
rules of
Court. In
or-
(Mo.1956),
Thompson,
S.W.2d
requires
provide
der
addition-
question
Court addressed the
of wheth
deposition,
al information in his notice
er
requiring
rule
a plaintiff
circuit court
56.01(b)(4)
57.03(b);
violation Rule
petition
list his address on the
was con
trary
impose
code
the civil
which did not
(3) Paragraph 14(h)(12)(i) contrary
requirement.
such
This Court said:
57.03(a)
Rule
imposes
because it
on critical-
*4
ly
plaintiffs
obligation
ill
the
to furnish the
say
requiring
We
cannot
rule
the
required
information
in
Paragraphs
plaintiff’s address conflicts
the
[Civ-
of respondent’s
prior
taking
order
the
require-
Code
an
or is
unreasonable
il]
deposition
ill;
critically
cities,
large
ment for
it could
where
have
important
an
purpose to facilitate investi-
21(b)
Paragraphs
(d)
contrary
& are
gations
discovery pro-
and the use of the
to this Court’s decision in State ex ret
cedure of the code....
The additional
Gray
Jensen,
(Mo.
At the outset we note that relators have litigation—problems plex discovery of presented respondent’s ap- no of evidence logistics range attend the plication in broad of of this order a manner which is volume inconsistent with our of issues sheer of evidence which Rules. Our review large parties in support the order is thus limited to facial validi- number raise its ty. positions. Where order is their susceptible to an various It would be interpretation improvident guess which is not inconsistent this Court to second relators, assuming, arguendo, paragraphs met applicability these we address decline to Even that the litigants. the order confusing, grounds to future are confusion is not making must be the writ absolute. There an 18, 19, urge Paragraphs Relators also jurisdiction excess of shown before writ can 21(b) confusing and dictory of the order are and contra- be made absolute. together. prohibition. when read This is Jensen, require- decision as to the 395 S.W.2d extension contrary In litigation.
ments of relators’ to Rules 56.01 and 57.01. Jen- sen, proper this Court held that it is not circumstances, Under these we believe inquire by interrogatory persons as to the provisions Paragraph 14 of re- whom adverse intends to call as a important spondent’s pur- order “have an testify witness to at the trial. pose investigations and the use to facilitate present discovery procedure_” Id. We This case does not the issue de- Respondent’s in order does circum- cided Jensen. further believe that under these require not the disclosure of a list provisions paragraph 14 witness stances the are burdensome, part discovery process. as a In- unreasonable, unduly stead, respondent’s requires par- order inconsistent with the Rules.3 designate
ties to the witnesses who will testify person by deposition spe- trial, discovery prior cific time after is 14(h)(12)(i) respon completed. inquiry The relevant here dent’s order states that the information may require the dis- whether trial court required Paragraphs 12 and 13 of the closure of witness lists as a device to assist plaintiff’s order as well as the answers to the conduct of the trial matters interrogatories must be submitted standard complex litigation after the close of dis- depo days expedited ten advance covery. critically plaintiff, of a ill “unless sition applica court on otherwise ordered discovery designed Our rules are to avoid *5 plaintiff.” Again, no tion of the we have trial, Hezel, surprise at Hilmer v. 492 respondent’s that order has been evidence 395, thereby (Mo.App.1973), S.W.2d interpreted deny critically to ill fostering orderly jus- administration of the opportunity preserve testimony the to his recognize sanctity of tice. also We comply concept upon because of a failure to with Para product, a counsel’s work are, therefore, 14(h)(12)(i). limit graph litigation, We Complex relies. Jensen respondent’s nature, for reviewing requires ed to order these very its that two validity. its facial principles be balanced. face, permits the trial properly
On its
the order
The rule announced
Jensen
Paragraph
compliance
pro-
to
must
recognizes
court waive
that work
be
14(h)(12)(i)upon application
plaintiff.
phase
litiga-
during
discovery
tected
II, B,
require
at
purpose
For the reasons discussed
little
tion. It serves
§
Paragraph
supra,
say
during
cannot
that
dis-
we
disclosure of trial witnesses
14(h)(12)(i)
respondent’s jurisdic-
complex
exceeds
covery, even in the most
cases.
day
discovery completed
tion.
is
and
Once
however,
policy objec-
approaches,
trial
efficiently managed trials
orderly,
tive of
disclosure of
Paragraphs
tips
in favor of
urge that
the balance
Relators next
(d)
used at trial.
21(b)
contrary
are
to witnesses
be
of the order
Rendlen,
challenge pleading requirements.
Judge
Given
argue,
to
conclusion,
as does
3. One can
12(a)
appropriate
applied
Paragraph
to these relators
do
believe it is
we
12(e)
discovery provision. Rela-
Paragraph
ais
reach the merits.
tors, however,
complain
about
Second,
are not found
argues
one
that the information
no
order;
required
their
12(a)
the information
Paragraph
provided
these
be
under
12(a)
Paragraph
informa-
complaint
that the
is
Paragraph
Does
relators is not discoverable.
petition.
required
of a
with the
tion is
12(a)
burden on
constitute an unreasonable
First, Judge
are in order:
Two observations
discussed in
these relators? For the reasons
12(a)
Paragraph
primary
is
attack on
Rendlen’s
12(a)
II, B.l,
Paragraph
we do not think that
§
"inconsistency"
perceived
with Rule 55.05.
its
circumstances, un-
is unreasonable under
pertains
to the
Rule 55.05
burdensome,
necessarily
or inconsistent with
agrees,
only
Judge
if
pleadings.
Rendlen
As
our Rules.
standing
reluctantly,
without
these relators are
discovery rules,
establish,
Under our
ted.
52.06
an adverse
Rule
does not
as rela-
party
sought
information,
par-
argue,
right
has
tors
each
seem
absolute
ty
persons
will have disclosed the names of
join
parties.
party
additional
A
who cannot
having knowledge of
opinions
facts and
joined under
Rules 52.04
52.05 can-
v. Gar-
relating
litigation.
Garrison
to the
Oil
joined
not be
under Rule 52.06.
Gulf
rison,
(Mo.App.1982).
640 S.W.2d
Corp.,
Instead,
S.W.2d
Rule 52.06
person
potential
Each such
disclosed is a
provides the trial court with discretion to
witness.
trial
The witnesses
be used at
52.05,
implement Rules 52.04
within
persons already
are but a
of those
subset
lawsuit,
particular
the context of a
“on
party.
revealed to an an adverse
Disclo-
just.”
such
as are
terms
sure,
(and
prior to the trial
close
after the
respondent’s
23 of
order does
discovery),
of those witnesses a
joinder
parties;
not forbid
of additional
trial,
intends to
call
makes eminent
joinder
specified
it makes
after a
time in
complex litigation.
sense in
matters
litigation
judge’s
a matter
trial
preparation
Such
fosters
disclosure
good
showing
discretion
cause.
examination,
management
cross
of ex-
facially
Paragraph 23 is not
inconsistent
hibits,
focusing
issues,
the or-
with Rule 52.06.
derly and
trial.
efficient conduct of the
practice
The
respondent’s
embodied in
III.
order is
in the
followed
federal courts. See
outset,
As
at the
a preliminary
stated
Engi-
16(c)(5),F.R.Civ.P.;
Brennan v.
Rule
prohibition
order in
made
will be
absolute
Products, Inc.,
neered
(8th
4. RENDLEN, J., part concurs in and Respondent urges next Para that opinion part separate filed. dissents graph contrary 23 of order is Again, to Rule 52.06. our on focus is the WELLIVER, J., separate dissents order, validity being facial the there no opinion filed. evidence that trial applied the court has the order in a manner inconsistent our APPENDIX A rules.
Rule PRE-TRIAL 52.06 states: ORDER COORDINATING PROCEEDINGS parties
Misjoinder ground is not may dismissal of action. be Parties that the appears It above actions are dropped order of court added the pending in the Circuit of Jackson any party on own motion of or of its Missouri; alleges suit County, that each stage and initiative at of the action injuries personal exposure or death due claim just. Any on such terms as are asbestos-containing products; many against pro- be severed and case of the defendants one are also separately. ceeded with in all the other ac- defendants or some of tions; vacuum; discovery will be it that considerable Rule 52.06 cannot be read case; parties in that other Rules 52.04 52.05. done the each must be read with and against many of the defendants are grounds Rules 52.04 and 52.05 establish the actions will joinder required permit- anticipated; preparation that extensive instituted or may hereafter be action which Court of Jackson conducted in the Circuit necessary in each of these cases and be Missouri, alleges claims County, and which orderly justice administration of exposure a result of injury or death as parties, and the interests of all both in time asbestos-containing products to asbestos or economy, to a determi- and lend themselves part of these Coordinated shall be made proceedings in pre-trial nation that these governed by Proceedings shall and cases should be coordinated. or- otherwise terms of the Order unless purposes coordinating these For the dered. proceedings purpose and for the of coordi- nating other procedures may be hereaf- [*] [*] [*] [*] [*] [*] Court, hereby it is ter determined include, petitions All shall future THAT: ORDERED known, diagnosis of the extent then disease, the date alleged asbestos-related GENERAL disease, alleged diagnosis of the and CV83-13186, 1. Civil Actions Nos. plaintiff’s so- period exposure, and the CV80-25953, CV79-2819, CV80-3804, CV- security cial number. CV82-6165, CV83-7841, 82-5333, CV83- 19927, CV83-21240, CY83-25273, CV84- subsequent In all cases commenced CV84-18252, CV84-27308, CV85- Order, plaintiff entry of this 2555, CV85-3413, pending and CV85-6325 parties, all on the date of the shall serve on County, in the Circuit Court of Jackson Petition, following: filing of the Missouri, hereafter other cases list, a) actions, consist- these shall be One master identification coordinated with Any ing following: governed by the terms of this Order. he, plaintiff contends asbestos-containing to which the (1) PRODUCTS known, name, and if exposed, brand identified was or the decedent
she specific application; unknown, by generic name and plaintiff which the specific DEFENDANT to (2) product, For each product; said attributes during specific DATES (3) product attributed defendant For each he, which, she or contends which, specific LOCATIONS exposed; was decedent date and corresponding attributed defendant product For each address, of each name, telephone number exposure, location date and for each knowledge of said of the use has who PERSON location. *7 following format: shall consist (i) list master identification The LIST IDENTIFICATION MASTER Date(s) Location Witness(es) Exposure Exposure Of Of Defendant Product plaintiff by by the be verified (ii) list shall master identification The under oath answer effect of an have the and shall or affirmation oath interrogatory. an (c) opinion opin- or Copies any medical (b) of of A list of the names and addresses has or the indicating plaintiff that the by facilities ions physicians and medical all disease. had an asbestos-related plaintiff or the dece- decedent or at which the whom available, a state- opinion If is The list no written any treated or illness. dent was by the any opinion received ment or oral the effect of an answer given shall have attorney, and the his or her plaintiff, or interrogatory. oath to an under represent the individual interests of his or long participation her as as client does not name and address of the doctor or doctors unnecessary duplication. involve Out-of- giving opinion. the designated may by state counsel be the (d) containing A style, list the full docket attorneys plaintiff’s attorney defense or number, lawsuit, filing any and date of depositions. participate in conduct or (in- any compensation or workers’ claim cluding against any governmental claims (b) depositions subject shall be All taken agency), by plaintiff filed any juris- the objections that all and motions the rule diction, (i) which sim- contains the or same strike, except objections as to the form allegations against any ilar of the same question, shall and shall the be reserved (ii) damages defendants or com- seeks or subsequent be stated and heard at a date. pensation any personal for injury prior to deposition objection during by An made a filing plaintiff's Complaint. the This list any any plaintiff by any or counsel given shall have the effect of an answer any shall con- counsel for defendant be interrogatory. under oath to an being sidered made on behalf of all
(e) In prior those cases instituted the plaintiffs respectively, except or defendant entry (listed of this in Paragraph Order any objec- counsel disclaim such above) plaintiff the stating. shall serve such master tions so parties identification list all on within 90 (c) During questioning the deponent of a days entry of this Order. question pending, and while a no counsel (f) In those cases commenced subse- shall deponent. confer with the quent entry of this Order in which (d) beginning any deposi- Prior to the plaintiff represented by attorney new tion, present counsel of each record shall has previously appeared who for some give party her name his or which plaintiff in other these Coordinated Pro- represents reporter he or court she ceedings shall serve such master identifica- transcribing deposition who is and to parties list of tion all within 90 days opposing counsel. copy of a service this Order the Court Administrator in accordance with Para- (e) Multi-jurisdiction depositions may be graph above. Proceedings noticed in these Coordinated Additionally, simultaneously with or case individual included therein the petition each shall prescribed depositions by manner provide defendants written authorizations Missouri Rules of Procedure and Civil allowing the noticing defendants to obtain social party multi-jur- The Order. security records, records, employment deposition tax isdiction shall state the notice records, compensation records, workers’ jurisdiction deposition such records, hospital physician medical un- has been will be noticed the extent records, records, military ion Veterans known to the at the time notice is given. Administration records. (f) taking any depo- notice of DISCOVERY expert sition of out-of-state witness Court, Except as ordered accompanied giv- shall with statement depositions shall be scheduled and conduct- ing the name and address the wit- following:
ed in accordance *8 ness; (2) the he or she is field which witness; (3) (a)Examination party being of a witness or as a the sub- a offered deposition, proposed the facts to the on oral whether such examina- stance of (4) by plaintiffs defendants, expected testify; is tion or shall be witness is to the sub- by primary backup opinions pro- and no the to which the attorney a attor- stance of any expected testify to ney. Nothing preclude posed herein shall is and a witness participating dep- summary grounds opinion; counsel of the for such other from the (5) necessary summary proposed to witness’ osition to the extent deemed and a of the
(6) The videotape itself will be available qualifications within the field in which he any for the Court and and all counsel in expected is testify. or she to order that the or counsel com- pare the stenographic transcript with the (g) party any Whenever shall the notice videotape. original videotape The will re- deposition witness, any par- the opposite possession reporter main the of the court ty shall not prior be allowed to take a stenographic who made the record. Said discovery deposition. In instances where reporter protect preserve court shall and discovery such deposition op- is the desired videotape entirety, the unaltered in its posite party accomplish shall the same pending further orders of the Court. prior the deposition noticed with the court subsequently ruling on all inadmissible (7) A copy any part or all of the matters. videotape deposition may by be made or for (h) Videotape depositions are to taken be any requesting counsel of a at said pursuant to Rule of the 57.03 Rules Civil requesting party’s expense. However, own Procedure, unless otherwise here- modified part videotape no of the deposition shall be 14(a) in. In paragraphs addition to released or any way made available in through (g) above, following the conditions any public member of prior entry the apply deposition: will the an order of the Court notice to all (1) record, videotaped In addition to the counsel right with object. the deposition the be stenographically shall (8) Any person making cameraman or transcribed and by qualified recorded a videotape recording the shall take oath reporter. court proceedings accurately to record the and in (2) attorneys attending All of record trustworthy a she manner. He or shall deposition, operators and the video certify accuracy completeness as to the reporter, identify court shall themselves recording orally visually of the both another, name for the record one after on deposition the conclusion in the of the same beginning at the deposition. camera of the stenographic reporter certify- manner as a (3) swearing affirming of the ing typed deposition. a record shall on witness be done camera. The oath (9) duty person It shall be the who or affirmation shall be administered to the stenographically deposition records the by person witness authorized to do so accurately during record the course law. deposition tape changed, as to when (4) beginning At the of the examination when examination each of the various counsel, by any identify counsel shall him- ends, counsel commences and whenev- self or herself by name within the camera’s interruption er there is an of the continu- field of vision. ex- The camera will focus tape exposure purposes for the of off- ous deponent on the clusively at all times dur- discussions, the-record mechanical failure ing deposition, except for identification machine, or other similar technical exhibits, zoom in on will not or out problems. Before video recorder is deposi- person witness or other at the reason, opera- off turned the video “pan” tion. The camera shall not other parties briefly tor shall allow all state exhibits, than to include and the field of positions, disagreement agreement, their or should, possible, consist view the extent that action the record. plain background. of a during (10) deposition equipment If the course of the The video shall be of suf- necessary quality produce it to have an earlier ficient an accurate and becomes question portion trustworthy videotaped depo- other answer or record of re-read, deposition shall If there deposition during record of sition. is a accomplished requesting person equipment, failure of the either visual or recording auditory, poor stenographically deposition is of such stenographic quality to read from the record. as to render the use of video-
death, in foregoing, plain- addition to the tiffs shall furnish to the tape any defendants’ any unfair to the interest of of the parties hereto, samples part available tissue or slides and the then no of the video- tape results, by any party autopsy any. shall be utilized in re- spect deposition parties to such and the will discovery period The for the made cases use, counsel, agreement absent an part Proceedings of these shall Coordinated stenographic transcription deposi- of the filing be nine months from the Peti- tion, provided complies the same otherwise tion. legal requirements. (11) any questions If or answers are PRODUCT/DEFENDANT Court, stricken copy then the of the IDENTIFICATION videotaped recording which is to be used in (7) filing 19. Seven months after court shall be edited to reflect such dele- petition, plaintiff provide each shall the de- However, tion. origi- no event shall the fendants a master identification list iden- videotaped recording nal any be altered in defendants, tifying products, dates and lo- except manner expressly approved by witnesses, exposure, cations of utiliz- this Court. ing the Paragraph format described in (12) The video prepare cameraman will plaintiff pre- of this Order and the will be index, log using the same format as the naming using cluded from at trial or in record, stenographic cross-referenced to any connection with motions additional ex- digital counter log on the camera. The posure already witnesses not named and index digital will indicate the counter num- plaintiff supplemental identified every (25) ber for twenty-five pages of the days identification lists filed at least 60 stenographic party noticing record. The prior to trial. conducting the videotape deposition (7) 20. Seven months after the expense shall bear original video- Petition, in addition to the master iden- tape original and the deposi- transcribed list tion. tification described Order, plaintiff provide shall (i) expedited Before an deposition of a provided have to each individual defendant critically ill plaintiff may held, plain- all such other evidence which the provided tiff’s counsel must have defend- plaintiff rely intends to to establish the plaintiffs ants with answers to the Stan- particular identification of that individual Interrogatories, dard along with the oth- being defendant as a defendant to whose required er information Paragraphs products(s) plaintiff or the decedent was above, (re: I.D., and 13 physi- exposed. plaintiff cians, precluded from etc.) at days least ten in ad- presenting using at trial or connec- expedited vance of deposition unless any tion with motions additional evidence appli- otherwise ordered the court on exposure of identification of or to asbestos- cation of the application Plaintiff. Such containing products already parte. identified be made ex least one have 18.(a) Defendants shall be entitled to [******] specialist in medically each field of medicine examined supplemental identification lists at least 60 days prior to trial. quirements of this Order unless filed in presented in accordance with the re- applicable plaintiff's allegations. to that (b) parties cooperate All in making shall PRE-TRIAL DEADLINE party any biopsy
available to other results, Presiding Judge arrange 21.The samples, original tissue slides or shall results, x-rays, settings test all future trial of cases included in other available diagnostic Proceedings. Any medical results or tools which these Coordinated trial might diagnosis setting prior be used to establish established to the date of this opinion. wrongful medical In a case previously Order shall remain as set. Once *10 (d) through above, desig- defendants shall trial, such case is following set for the witnesses, nate their diag- state-of-the-art procedures deadlines apply. and shall witnesses, any nostic and treating physi- they reasonably cians who (a) anticipate trial, or will days prior On before 100 to plaintiff required actually testify Further, the at is to and re- trial. the narrow de- duce the expert number of required witnesses fendants are designate to which of designating expert plaintiff witnesses rea- these testify person witnesses will in sonably anticipates actually testify will at testify which by deposition; will any and if trial. expert testify by deposition, witness will required the defendants
(b) are to trial, state the days prior On or before 100 to place plaintiff required deposition the date and designate is to and wheth- testify person witnesses in deposition will and which er the was or will be video- testify by deposition; will and in the event tape. testimony by deposition, plaintiff the is Additionally, days within 55 after the required provide place to the date and defendants have been served with the deposition depo- and whether or not the plaintiff’s designation spe- of those exhibit by videotape. sition will be reasonably anticipates cific that he exhibits (c) party require Each shall party’s trial, along will be offered at with the diagnostic witnesses to have examined all designation as to which defendant or de-
x-rays, records, slides, medical tissue or fendants, such will offered exhibits be any other materials which serve as a basis against, designate the defendants shall testimony for the witness’ and which are they reasonably antic- those exhibits that party party’s known to the or attorneys ipate actually offered into evidence will be deposition; at the time of the witness’ trial. prepared give that each such witness opinion his final trial as of the date of (f) The Plaintiff and defendants will be taking deposition by opposing of his precluded listing calling from or at trial party to the extent that he can do so on witness, any offering or into evidence at such information and materials then avail- exhibits, designated trial not in accord- able. If new or additional information or ance Subpara- with the materials becomes or a known graphs (a) (e) through Upon above.
party’s attorneys after the date of a wit- showing good cause, party may re- deposition, opposing ness’ counsel will be quest justice the interest of immediately notified and will be allowed to be, depose, redepose, witness, be allowed to list and may as case call a expert respect exhibit, each such to the new designated offer an required not as information or materials the new infor- hereinabove. any way changes
mation or materials in (in- (g) by any party All other motions opinion witness. cluding summary judgment), motions for (d) days prior That on or before 100 except relating admissibility motions trial, required designate trial, of evidence at must be filed and specific reasonably exhibits that he an- trial; days prior served no later than 60 trial, including ticipates will be offered at responses opposition to such motions not other such trial exhibits which do days filed and must be served within appear plaintiffs on the master list which motions; service defendants; have heretofore furnished to rule all such motions as soon the Court will designated, and as each exhibit so state possible responses after are due. Mo- or defendants the which defendant exhibit relating admissibility tions of evi- against. will be introduced governed by trial dence at shall be (e) days Within 55 after defendants have applicable provisions Rules. Local plaintiff’s designa- served with the been 21(a) Subparagraphs tions included cooper- expects all counsel to The Court join 23. Plaintiff additional de- good respond promptly ate thirty days
fendants after from the motions, re- interrogatories, faith to *11 taking plaintiff’s deposition, or after deposition, proce- quests produce, (150) fifty days one hundred from the to these adopted applicable in or dures action, first, of the except whichever comes actions, A and all orders of the Court. good cause shown. may result in a dismissal failure to do so expects defense, 24. The Court all counsel claim, to co- striking of a denial aof operate respond promptly in and in discover- right of use of materials of the good interrogatories, motions, faith to re- costs, ed, attorneys’ assessment of quests produce, deposition, procedures fees, forfeitures, damages, or other sanc- adopted applicable actions, in or to these provided by Supreme Court tions as all A orders Court. failure to do (Em- Rules, Rules, Local and case law. may claim, so result a dismissal of a added.) phasis defense, striking right of a denial discovery As with the provisions, relators discovered, use of materials the assessment personal have a arising stake costs, fees, from a attorneys’ damages, forfei- tures, threatened or injury actual provided by other sanctions as their chal- Supreme Rules, Rules, lenge 12(a). Paragraph Local Under Para- case graph 24, law. injury, threatened including
[******] dismissal, is the same whether relators fail comply with Paragraph 12(a) or the dis-
covery requirements. RENDLEN, Judge, concurring part Thus, recognizing standing relators dissenting in part. challenge 12(a) Paragraph and the dis- Although laudably concerned with the covery provisions “order,” respondent’s dealing needs of the circuit courts in prohibit I respondent enforcing would from exceptional problems “the are the provisions those which are inconsistent complex hallmark litigation,” princi- with our Rules of Civil Procedure and un- pal opinion, uphold respon- in its zeal to constitutionally impede access to the “order,”1 dent’s unfortunately confers courts.2 greater inferior courts far authority permissible than First, under the Constitution or challenged provisions in- are Procedure, our Rules of impedes Civil ac- consistent with the rules of this Court and courts, overly cess to restricts rela- may supreme therefore void. “The court standing. tors’ relating practice, proce- establish rules pleading dure and for all courts and admin- standing Relators challenge have tribunals, istrative which shall have 12(a) Paragraph respondent’s “order” as Const, force and effect of law.” Mo. art. discovery provisions well as the of the “or- V, judges 5. “The circuit of the circuit § County, der.” Harrison v. Monroe 716 may make rules for the circuit not incon- 263, (Mo. 1986); S.W.2d 266 banc Arsenal supreme sistent with the rules of the Giles, 918, v. 715 920 Credit Union S.W.2d Const, V, “[Tjrial court.” art. 15.1. (Mo. 1986). Mo. 12(e) Paragraph requires § banc governing make the ad- courts rules parties relators to serve on all the master judicial ministration of if the rules Paragraph business identification list described 12(a). Paragraph respondent’s 24 of “or- are not inconsistent with the rules of this provides: Court, statutory der” the Constitution or law Although principal unnecessary opinion finds it unnec- It is to address relators’ addition- issue, essary challenges validity to decide the there can be little al "or- doubt that on its face so-called der.” purports "order" is in fact a rule as it to control asbestos cases filed in Coun- all future ty- Jackson 308 telephone
force.” Rule 50.01. Rules or made orders number of each PERSON who power in excess of a court’s knowledge are void. has use of said Lasky, ex rel. v. State Geers S.W.2d for each date and location. 598, (Mo. 1970); Wade, banc Wade v. Clearly pleading require- these additional (Mo.App.1965). 395 S.W.2d As 12(a) Paragraph ments found in are incon- principal opinion, conceded it is clear sistent with Rule 55.05 and therefore void. from Douglas Thompson, 286 S.W.2d V, 15.1; Mo. Cont. art. Rule 50.01. As- § (Mo.1956), requirements im- suming arguendo respondent’s “order” is
posed by a trial court which are in addition 55.05, not inconsistent with Rule the added requirements imposed under this Court’s 12(a) are “un- they rules are invalid either: are reasonable, burdensome or difficult to com- *12 rules; (2) inconsistent with our or are un- with,” 835, ply Douglas, 286 S.W.2d at reasonable or burdensome. especially in view of the circumstances that 12(a) imposed victims, it is
Paragraph respondent’s upon of “order” asbestos some 55.05, pre- dying many is inconsistent with Rule which of whom are and who were plead- exposed working scribes what must be contained a to asbestos while in the ing setting building period forth a claim for relief. Our trade industries over a of requires only pleading rule that the contain years job at sites for countless numerous “(1) plain a short and statement of the employers, by Paragraph and that showing pleader 14(h)(12)(i) facts that the is entitled to respondent’s expe- of “order” an relief, (2) judgment and a demand for for deposition plaintiff dited of such cannot be the relief to which he deems himself enti- requirement held until this onerous is met. Running contrary tled.” re- simple to the Similarly, challenged discovery provi- 12(a) 55.05, quirements Paragraph of Rule respondent’s sions of “order” are inconsist- respondent’s “order” mandates ent with void.3 For our rules and therefore pleadings substantially enlarged must be 14, example, Paragraph regarding deposi- and burdened with a identification “master tions, is inconsistent with our Rule 57.- list,” including: 03(b)(1), requires only which that a notice (1) asbestos-containing PROD- deposition place state “the time and for he, plaintiff UCTS to which the contends taking deposition the name and and exposed, she or the decedent was identi- examined, person if address of each to be name, known, fied and if brand known, known, and, if the name is not unknown, by generic specific name and general description identify sufficient application; particular group or him or the class (2) product, specific DE- For each belongs.” Paragraph which he However plaintiff FENDANT to attrib- 14(f) additionally respondent’s “order” product; utes said requires:
(3)
product
For each
and attributed de-
taking
any deposi-
The notice of the
during
specific
fendant
DATES
expert
witness
tion of
out-of-state
which,
specific
at
LOCATIONS
accompanied
a statement
shall be
which,
he,
she or
contends
(1)
of the
giving
the name and address
exposed;
the decedent was
witness; (2)
he or she
the field which
witness; (3)
(4)
being
de-
is
offered as a
For each
and attributed
pro-
to which the
corresponding date and loca-
substance of the facts
fendant and
(4)
address,
testify;
name,
posed
expected
is
exposure, the
witness
tion of
Paragraphs
plain-
together,
petition.
and 20 limit
complain
19
Relators also
that read
18, 19,
21(b)
confusing
to make certain
Paragraphs
tiffs to seven months in which
20 and
are
disclosures, although they
provide
sup-
contradictory,
Paragraphs
for
also
and that
up
sixty days
upon
plemental
impose arbitrary
plaintiffs
identification lists
deadlines
complaints
fur-
imposed upon
These
offer
defendants. Para-
advance of trial.
that are not
discovery
our discretion and
graph
provides
ther reason for us to exercise
inter alia that
preliminary
period
make the
rule absolute.
shall be nine months from the
opinions
client,”
Jen-
tionship
attorney
substance of the
to which
between
sen,
proposed
expected
witness is
to testi-
simply
no
395 S.W.2d at
less
fy
summary
grounds
and a
of the
timing.
because of its
opinion;
(5)
summary
such
Finally, Paragraph
23 of
proposed
qualifications
witness’
within
imposes
“order”
time limitations
expected
field which he or she is
plaintiffs
joinder
of additional defend-
testify.
ants inconsistent with Rule 52.06. Under
Such
are inconsistent with
(30)
Paragraph
thirty
days
“after
from
57.03(b)(1),
56.01(b)(4)
Rule
as well as Rule
taking
plaintiff’s deposition,
pertaining
scope
discovery
to the
of ex-
fifty
days
after one hundred
from the
pert
Similarly,
witnesses.
Rule 57.-
while
action,
filing of the
whichever comes first”
03(a)
taking
deposition
authorizes the
of a
plaintiff may join additional defendants
time after commencement of an
cause;
only upon
showing
good
Rule
action,
court)
(by
prior
even
leave of
imposes
express
52.06
no such
on
burden
expiration
thirty days
after service of
plaintiff.
again, respondent
improp-
Once
petition upon any
the summons and
defend-
erly attempts
grant
right giv-
relators a
ant,
14(h)(12)(i)
only upon
en them
law
terms more
grants critically
“order”
plaintiffs
ill
Puckett,
onerous than
fixed
those
law.
*13
right
expedited deposition only upon
to an
WELLIVER, Judge, dissenting. promulgating setting guide- a rule forth I respectfully dissent. lines within which our trial courts can regarding make orders management question There is no but what Section multiple litigation. connection, case In this order, 12 and 13 of the as they relate to things appear three to me to be clear. lawsuits, up of future set addi- First, timely handling group of this tional over and above those *14 permit cases will not either the time for required by now our statutes and our rules consideration or the time for notice in- doing, for the In lawsuits. so rule-making process. volved in our usual proposed rule-making order invades the Second, there will be in each mul- variables power bestowed on this Court Section tiple management case situation that can Article V of the Missouri Constitution. To contemplated be never covered a sin- the extent that our Rules are exceeded can, most, gle single rule and the rule order, it constitutes an unauthorized third, guidelines. respect- I set And would upon limitation free access to the courts as fully suggest any special rule commit- guaranteed by the Constitution. Mo. Const, suggested as I I, tee selected have above duty art. 14. The is ours to § judge involve and would include both this assure that there free be access many already the attorneys involved standing courts of Missouri and no is re- quired in this case. anyone trigger our execution duty. of this view, my approval In of this order events, In the normal course of this Court at this time sets the entire order were rule, upon produce just effectively Court called concrete as if had such we assign original drafting adopted we would first the order as our rule after ex- special consisting hausting rule-making process. to a committee our normal knowledgable judges perceive overly most and the This rule I most now knowledgable specialist extremely expansive in the field of our ex- that we broad rules, will, isting my opinion, charge could select and them to consider become upon suggest and recommend a rule. I would minimal rule which all who follow are challenged expand process, upon experi- our to build and further that this based committees, upon overwhelming approval such rules be- ence with other based principal expected could be to take six month to a stowed the order
3H opinion in this case. Such a course of
action I precipitious deem to be both
dangerous. delegation Unbridled of this rule-making power
Court’s to trial courts only
can result a situation we will live to
regret.
There is an alternative course of action respectfully suggest
which I would best
preserve integrity of this Court’s rule-
making power serving expe- while best orderly
ditious and jus- administration of
tice.
We could make the preliminary rule ab-
solute to the extent that the order limits
access to the courts as I have above out- conditionally approve
lined and could then
the remainder of the order for use on an
experimental basis these cases. In the
meantime, Special this Court could create a recommending
Rule Committee to consider permanent setting general guidelines rule management
for the multiple of future litigation.
case ALEXANDER,
ALEXANDER &
INC., Appellant,
Rick C. KOELZ and William S.
Leber, Respondents.
No. 51384. Appeals,
Missouri Court of District,
Eastern
Division One.
Nov. Rehearing
Motion For and/or Transfer
Denied Jan.