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Mdl-875): Black Hole Or New Paradigm?

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THE FEDERAL ASBESTOS PRODUCT LIABLITY MULTIDISTRICT LITIGATION (MDL-875): BLACK HOLE OR NEW PARADIGM? Hon. Eduardo C. Robreno*+ I. The Black Hole ..................................................................... 101 A. What is Asbestos? ........................................................... 101 B. How Did the Asbestos "Health Crisis" Arise? ................ 102 C. What Have Been the Medical Consequences? ................ 103 D. What Have Been the Legal Consequences? .................... 105 E. The Federal Courts' Response to the Crisis ..................... 107 1. Individual Courts' Efforts ............................................. 107 a. Standard Pretrial and Trial Management ................. 107 b. Consolidation ........................................................... 108 c. Class Actions ............................................................ 109 d. Collateral Estoppel ................................................... 110 * The author was sworn in as a United States District Judge in the Eastern District of Pennsylvania on July 27, 1992. Judge Robreno has presided over the Federal Asbestos Multidistrict Litigation MDL-875 since October 2008. + Over the past five years that I have presided over MDL-875, the court has been the beneficiary of substantial assistance by judicial and non-judicial personnel in the adjudication and administration of thousands of cases. Among those whose assistance has been extremely valuable are: District Court Judges Lowell A. Reed and Mitchell S. Goldberg; Magistrate Judges Thomas J. Rueter, David R. Strawbridge, Elizabeth T. Hey, and M. Faith Angell; Special Master Bruce Lassman; Case Administrators Christopher Lyding and Joel Lang; the Clerk's Office personnel in the Eastern District of Pennsylvania under the supervision of Michael Kunz; Asbestos Administrative Law Clerks Nolan Tully, Emily Breslin Markos, Michele Ventura, and Christopher Lucca; and Asbestos Summary Judgment Clerks Mary Pat Stahler and Heather Dixon. Also of assistance to the court has been the work of summer interns Sarah Bily and Emily Kraus, and law extern Nicholas Romeu. Without their faithful contributions, the court could not have achieved any positive results in MDL- 875. I have also relied upon their contributions in putting together this article. Of course, all errors of law and fact are totally mine. To all, my most sincere appreciation for their assistance. I am also thankful for the work of my predecessors, Judges Charles Weiner and James Giles for laying the foundation upon which resolution of the cases in MDL-875 has become possible. 97 98 WIDENER LAW JOURNAL [Vol. 23 e. Alternative Dispute Resolution ................................ 110 2. MDL-875 ..................................................................... 110 3. National Class .............................................................. 112 4. The Legislative Fix ...................................................... 114 II. NEW PARADIGM ............................................................. 117 A. Changes in Law and Culture ........................................... 117 1. State of Tort Reform .................................................... 118 2. Aging Asbestos Population, Latency of Illness, and Resulting Bankruptcies ....................................................... 119 3. Litigation Strategies ..................................................... 120 4. Fraud ............................................................................ 120 5. Peripheral Defendants .................................................. 121 6. Rise of Bankruptcy Trusts ........................................... 122 B. One Plaintiff-One Claim ................................................. 126 1. Operating Principles ..................................................... 126 2. Personnel and Resources .............................................. 127 a. Case Administration ................................................. 128 b. Other Judges of the Court ........................................ 129 c. Clerk of Court .......................................................... 130 3. Communications Module ............................................. 131 4. Court Procedures .......................................................... 133 a. Settlement Conferences ............................................ 133 b. Motion Practice ........................................................ 133 c. Trial Scheduling ....................................................... 134 d. Frequently Asked Questions .................................... 134 C. Steps to Resolution .......................................................... 135 1. Transfer All Cases to Eastern District of Pennsylvania 135 2. Severance of All Cases Into Single Plaintiff Motions . 136 3. Amended Administrative Order Number 12 ................ 137 4. Show Cause Hearings .................................................. 139 5. Scheduling Orders – Discovery ................................... 141 6. Summary Judgment ..................................................... 141 D. Trial or Remand .............................................................. 143 1. Administrative Order Number 18 ................................ 144 2. Suggestion of Remand Memorandum ......................... 145 3. Trial Judge and Appointment of Special Master on Remand ............................................................................... 146 E. Legal Architecture ........................................................... 147 1. Major Legal Issues in MDL-875 .................................. 148 2013] FEDERAL ASBESTOS PRODUCT LIABILITY 99 2. Issues of Federal Law .................................................. 152 3. Issues of State Law ...................................................... 154 4. Summary ...................................................................... 156 F. The MARDOC Litigation ................................................... 157 1. Ohio Connection .......................................................... 157 2. MDL-875 (1991-2005) ................................................ 157 3. Post 2009 Activity ........................................................ 162 G. CVLO Litigation ................................................................ 169 H. Railroad Brake Litigation ................................................... 174 I. Mass Screening Cases ........................................................ 177 J. Five Year Results ............................................................... 180 III. LESSONS LEARNED AND UNLEARNED ................... 186 A. If We Build It, They Will Come ..................................... 186 B. One Plaintiff–One Claim ................................................. 187 C. MDL Litigation is Part of a Continuum .......................... 187 D. Waiting for Superman: The Failure of Aggregation ....... 187 E. It Takes A Village: The Need for Judicial and Administrative Resources ....................................................... 187 F. Let the Lawyers be Lawyers: The Procedural Road Map 188 G. Let the Judge be the Judge: The Need for Legal Architecture ............................................................................ 188 H. No Agenda: A Win-Win for Plaintiffs-Defendants ........ 188 * * * Former Third Circuit Chief Judge Becker described the social effect of the use of asbestos in Georgine v. Amchem Products, Inc.,1 as follows: [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 1 Georgine v. Amchem Prods., Inc., 83 F.3d 610 (3d Cir. 1996). 100 WIDENER LAW JOURNAL [Vol. 23 take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s.2 This article traces the development of asbestos litigation in the federal courts for the past twenty-plus years.3 Part I rehearses how the crisis came about, its impact on the medical and legal system, and the ultimately unsuccessful efforts made by the federal courts to reach a global solution to the asbestos litigation, which grew to over 180,000 cases and more than 10 million claims. Part II describes and recounts the implementation by the Multidistrict Litigation Court (MDL-875) of a new paradigm in the litigation which, over a five year period, led to the resolution of the vast majority of cases. Part III seeks to draw lessons from the experiences of the largest and longest running active MDL4 in the federal courts and suggests that the asbestos paradigm developed in MDL-875 could well inform the resolution of future mass tort litigation in the federal courts. 2 Id. at 618 (quoting In re Asbestos Prods. Liab. Litig. (No. VI), 771 F. Supp. 415, 418-19 (J.P.M.L. 1991)). 3 The literature is extensive. An overall picture of the crisis is provided in STEPHEN J. CARROLL ET AL., ASBESTOS LITIGATION 22 (2005), available at http://www.rand.org/content/dam/rand/pubs/monographs/2005/RAND_MG162. pdf; REPORT OF THE JUDICIAL CONFERENCE AD HOC COMMITTEE ON ASBESTOS LITIGATION (Mar. 1991) [hereinafter AD HOC COMMITTEE REPORT]; and Paul D. Carrington, Asbestos Lessons: The Consequences of Asbestos Litigation, 26 REV. LITIG. 583 (2007). See also Deborah Hensler, As Time Goes By: Asbestos Litigation after Amchem and Ortiz, 80 TEX. L. REV. 1899 (2002); Linda Mullenix, Beyond Consolidation: Postaggregative Procedure in Asbestos Mass Tort Litigation, 32 WM. & MARY L. REV. 475 (1991). 4 MDL-875 is the largest MDL in terms of number of claims
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