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