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MDL-875: Past, Present and Future
Eduardo C. Robreno, Presiding JudgeUnited States District Court for the
Eastern District of Pennsylvania
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© June 12, 2009As Amended February 17, 2012
Available at: http://www.paed.uscourts.gov/mdl875a.asp
Asbestos: A Health-Legal Crisis [?]
• Former Third Circuit Chief Judge Edward R. Becker described the social effect of Asbestos in Georgine v. Amchem Prods., Inc., 83 F.3d 610, 618 (1996):– The use of asbestos “is a tale of danger known
about in the 1930s, [with] exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s.”
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• Asbestos is a naturally occurring, fibrous, silicate-based mineral.
• Asbestos is extracted through conventional mining, much like coal.
• Asbestos fibers are present in the ambient air, but are not concentrated enough to cause harmful health effects.
• Inhaled in significant doses, asbestos fibers are known to cause significant negative health effects.
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What is asbestos?
• Asbestos was particularly useful because:– It has a high tensile strength.– It has the ability to be woven into other
things.– It has a tremendous resistance to heat and
most chemicals.
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Qualities of Asbestos
• Asbestos was used as:– Insulation– Pipe Covering (notably on ships, including Naval
ships)– Roofing shingles and sealants, ceiling and floor
tiles, paper, cement, textiles, car brakes, railroad brakes, gaskets and packing
– Anything requiring a flame retardant covering
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Uses of Asbestos
• Building tradesmen• Sailors on ships• Home renovators• Automotive repair technicians
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Who Was Often Exposed to Asbestos
• Diseases caused by asbestos exposure are divided for administrative purposes into malignancies and non-malignancies.– Malignancies: Mesothelioma, Lung Cancer, Colon
Cancer, Throat and Mouth Cancer.– Non-Malignancies: Pleural plaques, Pleural
Thickening, Pulmonary Asbestosis
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Diseases Linked to Asbestos Exposure
• Asbestos related diseases have latency periods ranging from 10-15 years for asbestosis, 15-20 years for lung cancer, up to 40-50 years for mesothelioma.
• Nicholson Study: Predicted 228,795 deaths between 1985 and 2009 based on asbestos exposure.
• Although the use of asbestos was largely discontinued in the 1970s, its effects continue through the present.
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The Consequences of Asbestos Use
• 1991 – Transfer to the Eastern District of PA by the Judicial Panel on Multidistrict Litigation– Five previous applications were denied by the Panel– “[the asbestos docket had] reached a magnitude, not contemplated in
the record before us [previously], that threaten[ed] the administration of justice and that require[d] a new, streamlined approach.” In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 418 (J.P.M.L. 1991).
• Approximately 26,000 initially transferred involved personal injury claims resulting from asbestos exposure.
• Ultimately grew into largest (190,000+ cases) and longest-running case in MDL history.
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History of MDL-875
• Brought by plaintiff(s) in state court• Removed by defendants and transferred to E.D. Pa.• One or more plaintiffs suing as many as 50
defendants in a single case• MDL-875 is not a class action• Involves cases from each judicial district in the
United States• Involves a product that was used in many industries• Long latency period of asbestos-related diseases
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MDL-875: A Typical Personal Injury Lawsuit
• 1993: Attempted class action settlement• Group of twenty asbestos product manufacturers
and suppliers (“CCR”) were defendants.• Putative class to include all persons exposed
occupationally to asbestos or asbestos containing products supplied by defendants.
• 1997: Supreme Court affirmed the Third Circuit Court of Appeals, ruling that the proposed class did not satisfy the requirements of Fed. R. Civ. P. 23. Georgine v. Amchem Prods., Inc., 83 F.3d 610 (1996)
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MDL-875 Phase I: Class Action Effort
MDL-875 Phase II: Legislative Effort
• Opportunities for mass settlement through legislative action did not materialize– Fairness in Asbestos Compensation Act (1999)– Asbestos Compensation Act (2000)– Asbestos Claims Criteria and Compensation Act
(2003)– Fairness in Asbestos Injury Resolution Act (2006)
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Status of MDL-875 as of 10/1/2008
LAND DOCKET•About 90,849 plaintiffs, each of whom had sued an average of 50 defendants.•Estimated number of open claims – 4.5 millionMARITIME DOCKET•The Maritime Docket (MARDOC) originally consisted of about 48,000 cases and millions of claims.
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MDL-875 Phase III: Changes in Law & Culture
• The aging of exposed asbestos population• State tort reforms• Recognition of problems with the mechanisms used to
resolve large numbers of asbestos cases in the 1990s• Discovery of widespread fraud in the medical diagnosing
of silicosis• Development of new litigation strategies by corporations• Bankruptcy of all major manufacturers• Rise of Trusts for former manufacturers of asbestos• Litigation shifts to peripheral defendants
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Foundations for Resolving the Case
• The Court issues Administrative Orders 11 and 12.
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Administrative Order 11
• Transfer of all electronic dockets in MDL-875 to the E.D. Pa. CM/ECF system.
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Administrative Order 12
• Requires each Plaintiff to submit to the Court the diagnosing report or opinion upon which they rely in pursuing their personal injury action. (Lone Pine Order; see Lore v. Lone Pine Corp., No. L-03306-85, 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986)).
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Management Plan
• Operating Principles
• Personnel
• Procedures
• Communication
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Operating Principles
• Deconstruction of cases – “one plaintiff, one claim;”• Each case on a scheduling order;• A commitment to hands-on management of cases;• Systematic differential diagnostics – all cases cannot
be treated similarly; and• Reasonable but fixed deadlines and benchmarks.
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Personnelas of 2/1/2012*
• Judge Eduardo C. Robreno, Presiding Judge• Magistrate Judges M. Faith Angell; Thomas J. Rueter; David
Strawbridge; & Elizabeth Hey• Clerk of the Court Michael Kunz• E.D. Va. Case Administrator Bruce Lassman, Esq.• MARDOC Case Administrator Christopher Lyding, Esq.• Deputy Clerk Jeffrey Lucini• Law Clerks Heather Dixon and Michele Ventura• Clerk’s Office Personnel
* Senior Judge Lowell Reed until his retirement in Spring, 201120
Procedures
• Motions
• Settlements
• Summary Judgment
• Trials or Remands
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Communication• MDL-875 website provides easily accessible information to
litigants. The website includes:– Updates – any activity in the litigation is logged.– Master Calendar– Opinions– Case Listings– Steering Committee– Regular Updates– Statistical Breakdown of the MDL– Contact Information
• Steering Committees (Plaintiffs, Defense, and MARDOC)• Public Speaking at Asbestos Forums
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Website statistics
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Website statistics (cont’d)
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Land Cases:Integration of Principles & Procedures• The Flow Chart on the following slide illustrates how
the Court is implementing its Case Management principles and procedures.
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Voluntary /Involuntary Dismissal of Viable Defendants
CASE IS LISTED FOR HEARING
Involuntary Dismissal
Contested Compliance with Admin. Ords.
Plaintiff has complied with Admin. Ords. 11 & 12.
Non-Viable Defendants Bankruptcy docket
Daubert Hearing/ other Evidentiary Hearing
NOTE: A non-viable defendant is a party that is in bankruptcy proceedings
Rule 26(f) Report/ Rule 16 Conference
Settlement Conference
Summary Judgment Motions Hearing before District Judge or three judge panel of Magistrate Judges
Malignancy & Non-Malignancy Tracks
Trial in E.D. Pa. or Remand to Transferor District (pursuant to Admin. Ord. 18)
Settlement/Final Pretrial Conference
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Summary Judgment Procedure
• As of the response date for motions for summary judgment, the Court can ascertain the number of cases/claims that may be remanded.
• If some or all of the motions in a case are opposed, a hearing on those motions will be scheduled within 30 days.
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Summary judgment motions filed
No answer – case/certain defendants subject to
dismissalAnswer is filed
Hearing
30 Days
Summary Judgment Granted – Certain
Defendants Dismissed.
Summary Judgment Denied, Suggestion of Remand Pending
210 Days
20 Days
Suggestion of Remand Filed
Remand 14 Days
No Motions for Summary Judgment
filed
Final Settlement Conference
Conclusion of Discovery Period
Final Settlement Conference
Final Settlement Conference
Final Settlement Conference
Inter-Circuit Assignment
Remand to the Transferor Court
• A case stays in E.D. Pa. through the summary judgment phase. A case that survives summary judgment (or in which no MSJs are filed) gets a suggestion of remand.
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Suggestion of Remand Template: page 1 of 2
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Suggestion of Remand Template: page 2 of 2
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Suggestion of Remand
Memorandum: page 1 of 2
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Suggestion of Remand
Memorandum: page 2 of 2
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TestCase Totals Between November 2008 & December 2009: Land Docket (year one)
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Case Totals Between January 2010 & December 2010: Land Docket (year two)
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Case Totals Between January 2011 & December 2011: Land Docket (year three)
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Maritime Docket (MARDOC)
• Nearly all cases are from N.D. Ohio• Nearly all cases involve a single plaintiffs’ firm• Plaintiffs were merchant marines and repairmen on
ships• Two groups of defendants:
– Manufacturing Defendants– Ship Owners
• Both state law and maritime law apply
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Maritime Docket (MARDOC) Procedure
• Requirement of diagnostic report, or dismissal• Schedule of hearings on threshold issues• Scheduling conference to set discovery deadline in all
cases– Cases are divided into seven (7) groups, with each group getting a
scheduling order
• Dismissal of non-viable defendants
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Maritime Docket divided into 7 groups (common defendants & geographic locations):• Every case is on a scheduling order
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Case Totals Between January 2010 & December 2010: Maritime Docket (year one)
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Case Totals Between January 2011 & December 2011: Maritime Docket (year two)
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Case Totals (land + MARDOC) as of January 20, 2012
By Year
By docket
Year 1Year 2
Year 3
Year 4
MDL-875 Statistics as of January, 2012for both land and MARDOC
• Total pending cases (land + MARDOC): 10,800– E.D. Va. (subject to Kurns): 4,553– MARDOC: 3,537– Cascino Vaughan (7th Cir.): 1,001– Pipeline / other cases: 1,709, including:• 331 referred to Judge Strawbridge• 188 referred to Judge Angell• 277 referred to Judge Hey• 367 referred to Judge Rueter
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Statistics as of January 20, 2012, by jurisdiction
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Judge Robreno’s Suggestion
Concerning Future Tag-Alongs (or, “saying goodbye”):Page 1 of 3
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Judge Robreno’s Suggestion
Concerning Future Tag-Alongs:Page 2 of 3
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Judge Robreno’s Suggestion
Concerning Future Tag-Alongs:Page 3 of 3
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Order Adopting Judge Robreno’s
Suggestion Concerning Future
Tag-Alongs: page 1 of 3
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Order Adopting Judge Robreno’s
Suggestion Concerning Future
Tag-Alongs: page 2 of 3
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Order Adopting Judge Robreno’s
Suggestion Concerning Future
Tag-Alongs: page 3 of 3
List of Jurisdictions for Future Tag-Along Cases
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Legal Searches
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1. Opinions webpage on MDL-875 website– Downloadable PDFs of opinions by Judge Robreno
and Magistrate Judges2. Excel spreadsheet– Also can be downloaded from opinions webpage– Searchable, sortable list containing summaries of
Judge Robreno’s and Magistrate Judges’ opinions3. Westlaw and LexisNexis
1. Westlaw search example: (government contractor defense) & prelim(875 mdl-875)
2. Lexis search example: (government contractor defense) & notice(asbestos)
Denotes that this is an MDL-875 opinion / order
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MDL-875 Legal Architecture
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MDL-875 Legal Architecture Continued
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Lessons Learned:
• Legal Architecture of future asbestos litigation• Procedural paradigm• Need for strategy and resources• Win-win for plaintiffs and defendants