Moving Forward: Asbestos Litigation

WDC Journal Edition: Summer 2011
By: Elissa M. Bowlin, Jacobson Legal Group, S.C.

Introduction

For years, the filing of a federal asbestos lawsuit and subsequent transfer to Multi-District Litigation 875 (MDL-875) in the Eastern District of Pennsylvania meant an effective halt to litigation. In recent years, the implementation of case management systems has successfully allowed the court to work through the backlog of filings and has allowed litigation to proceed towards either settlement or trial. The court had a self-imposed deadline of August 2011 by which it hoped to clear the backlog of filings. It is now anticipated that by the end of 2011, the backlog of asbestos lawsuits in the Eastern District of Pennsylvania will be cleared and new filings will be able to proceed through pretrial discovery, motion practice, and settlement conferences without delay. This article will provide a brief history of MDL-875, an overview of some of the procedures set forth in the Administrative Orders the EDPA has adopted to address the backlog, and MDL-875 statistics demonstrating that these measures are meeting with success.

I. A Brief History of MDL-875

In 1968, Congress created a judicial panel to transfer civil actions involving one or more common questions of fact to any district for coordinated or consolidated pretrial proceedings.[i] The transfer of a case pursuant to this federal statutory provision, 28 U.S.C. § 1407 (Section 1407), is for the convenience of the parties and witnesses and is intended to promote the just and efficient conduct of such actions.[ii] The transfer of actions to a single federal district for coordination or consolidation is known as “multi-district litigation” (MDL). On July 29, 1991, the judicial panel for multidistrict litigation entered an order transferring all asbestos personal injury cases pending in federal court to the Eastern District of Pennsylvania (EDPA).[iii] The asbestos litigation MDL is commonly referred to as MDL-875.

The judicial panel initially transferred the asbestos caseload to the Honorable Charles R. Weiner. Judge Weiner presided over MDL-875 until he passed away in November 2005. The Honorable James Giles succeeded Judge Weiner and presided over MDL-875 until he left the bench in October 2008. Since 2008, the Honorable Eduardo Robreno, who was appointed to the Eastern District of Pennsylvania in June 1992, has presided over MDL-875 and has made significant strides in moving the litigation forward.[iv]

It has been nearly twenty years since the judicial panel determined that the actions in asbestos products liability litigation involve common issues of fact and that centralization under Section 1407 in the EDPA would serve the convenience of the parties and witnesses and promote the just and efficient conduct of asbestos litigation. Over that twenty year period, MDL-875 has been broken down into three phases: Phase I, the Class Action Effort; Phase II, the Legislative Effort; and Phase III, the claim by claim resolution of each case.[v] The current phase, Phase III, is proving to be successful in reducing the backlog of asbestos cases and in allowing the parties to move forward with pretrial litigation.

II. Overview of Selective Administrative Orders Implemented to Reduce the Backlog

Phase III’s success can be attributed to Judge Robreno’s aggressive case management procedures, some of which are set forth in a series of administrative orders. From a procedural aspect, perhaps most noteworthy are: Administrative Order 11, which relates in part to management of cases transferred to the EDPA; Amended Administrative Order 12, which requires specific information to be submitted by plaintiffs; Administrative Order 12A, regarding dismissal for failure to comply with Administrative Order 12 requirements; and Administrative Order 18, regarding counsel’s request for remand. A brief overview of these administrative orders is set forth in this section.

If an asbestos case is filed in federal court, it will most likely be transferred to the EDPA to be consolidated in MDL-875. After an asbestos action is filed in federal court, a Transfer Order is typically signed by Judge Robreno ordering the clerk of the EDPA to initiate the procedures for the transfer of MDL-875 cases from the originating court in accordance with the terms of Administrative Order 11.[vi] All parties will be notified by the clerk of the originating court that all future pleadings are to be filed with the clerk of the EDPA.[vii] However, the Transfer Order must be entered in the originating court before documents may be filed in the EDPA.[viii] All motions pending in the originating court at the time of transfer are denied without prejudice and must be re-filed on the EDPA docket.[ix]

Once the case is in the EDPA, within 30 days of the final date of transfer, plaintiff’s counsel must comply with Administrative Order 12, which requires the submission of information about the case.[x] The plaintiff is required to identify all prior or pending court or administrative actions brought regarding plaintiff’s alleged asbestos-related injury.[xi] Additionally, for each named defendant, Administrative Order 12 requires the plaintiff to identify: (1) those defendants with whom the plaintiff has achieved resolution of his or her claim, whether the resolution has been achieved through settlement, agreement to dismiss without payment, or by payment of a claim through bankruptcy court; (2) each defendant the plaintiff agrees to voluntarily dismiss; (3) each defendant that is currently in bankruptcy; and (4) each non-bankrupt unsettled defendant.[xii] In addition, if the plaintiff is claiming an alleged asbestos-related malignancy or a claim based upon an alleged non-malignant injury or condition, Administrative Order 12 requires the plaintiff to submit a copy of the medical report or opinion upon which the plaintiff relies for the prosecution of his or her claims.[xiii] The report or opinion must be based upon objective and subjective data and that data must be described within the report or opinion.[xiv] The information submitted pursuant to the Order can assist the parties in identifying those cases which need to be removed from MDL-875 as resolved or which have only bankruptcy claims remaining.[xv]

Plaintiffs are not required to file the Administrative Order 12 submission with the court, but are required to serve all viable defendants.[xvi] If defense counsel does not receive the submission or believes the submission to be incomplete, counsel may move for a rule to show cause to challenge the sufficiency of the submission.[xvii] The motion must include: (1) the civil action number of the case in the district where it was originally filed; (2) the name of the plaintiff in the case; (3) the specific defendant or defendants on whose behalf the motion is being brought; (4) the claim or claims for which dismissal is sought; (5) the deficiencies which fail to satisfy the requirements of the Order; and (6) a certification that the motion has been served upon counsel for the party against whom the rule to show cause is being sought.[xviii] If a motion for rule to show cause is filed, the court may then require the plaintiff to submit proof of service and/or submit the Administrative Order 12 submission to the court.[xix] Failure to comply with the requirements set forth in the Order may result in dismissal pursuant to Federal Rule of Civil Procedure 41(b).[xx]

Also worth mentioning is that Administrative Order 12 states that the court intends on “stepping up” the pace of settlement conferences.[xxi] If a settlement conference is unsuccessful, the case may be referred to mediation or, if the court finds that the parties have negotiated in good faith without success, the court may suggest the case be remanded.[xxii]

Administrative Order 18 outlines the procedure if a party’s counsel decides to seek remand of a case back to the originating court. The motion for remand must minimally contain the following regarding each claim: (1) the civil action number of the case in the district where it was originally filed; (2) the civil action number of the case in the EDPA, if the case has been assigned an EDPA civil action number; (3) the name of the plaintiff in the case; (4) the diagnosing report or opinion relied upon by plaintiff in compliance with Administrative Order 12; (5) the identities of the defendants that are still viable in the case; (6) a certification that the motion requesting the suggestion of remand has been served upon counsel for other parties; and (7) the specific reasons why remand is appropriate in the case.[xxiii]

The above selections of the procedures and requirements set forth in the recent Administrative Orders are not meant to be all-inclusive but are meant to illustrate how the court and parties' responsibilities can be efficiently executed, thereby allowing the pending cases on the MDL docket to move forward without delay. Additionally, although many of the requirements are imposed on plaintiffs, the Orders do provide opportunities for the defense, which should be known and utilized. The opportunities may even result in dismissal in some instances.



III. Statistics Confirm that the Backlog of Cases Is Diminishing.

Thanks to Judge Robreno’s aggressive case management plan implementing the above Administrative Orders, among others, MDL-875 statistics now confirm that the EDPA has succeeded in reducing the number of claims and cases currently pending. In fact, MDL-875 statistics document that from August 1, 2006 through April 30, 2011, of the 128,057 asbestos cases transferred to the Eastern District of Pennsylvania, 115,986 cases were terminated and only 12,071 pending cases remain. Of interest to Wisconsin practitioners, of the 1,248 asbestos cases originally filed in the Eastern District of Wisconsin and subsequently transferred to the EDPA, 886 were terminated over the same period, and only 362 cases remain pending. As for the Western District of Wisconsin, of the 652 cases originally filed, 531 cases were terminated, and only 121 cases remain pending.[xxiv]

Conclusion

As confirmed by the statistics, asbestos litigation in MDL-875 is changing. No longer can practitioners expect to sit back while their cases slowly proceed through the enormous backlog. After nearly twenty years, it appears that by the end of 2011, centralization in the Eastern District of Pennsylvania will finally serve the convenience of the parties and witnesses and promote the just and efficient conduct of asbestos litigation. Better late than never!


[i] 28 U.S.C. § 1407.

[ii] 28 U.S.C. § 1407.

[iii] Administrative Order 11, (click "Administrative Orders").

[iv] http://www.paed.uscourts.gov/mdl875.asp

[v] Id.

[vi] Transfer Order No. 922.

[vii] Administrative Order 11, (click "Administrative Orders").

[viii] Id.

[ix] Id.

[x] Administrative Order 12, (click "Administrative Orders").

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Administrative Order 17, (click "Administrative Orders").

[xvi] Administrative Order 20, (click "Administrative Orders").

[xvii] Administrative Orders 12A, 17, (click "Administrative Orders").

[xviii] Administrative Order 12A, supra note 17.

[xix] Administrative Order 20, supra note 16.

[xx] Administrative Order 12, supra note 10.

[xxi] Id.

[xxii] Id.

[xxiii] Administrative Order 18, (click "Administrative Orders").

[xxiv] http://www.paed.uscourts.gov/mdl875.asp