PENNSYLVANIA RECORD

A federal appeals court recently sided with the trial judge overseeing the multidistrict

asbestos litigation playing out at U.S. District Court in Philadelphia, determining that the jurist properly dismissed a dozen cases from the MDL for failure to comply with an earlier court order.

In an opinion filed on May 31, the U.S. Third Circuit Court of Appeals affirmed an earlier ruling by U.S. District Judge Eduardo Robreno, who oversees the asbestos MDL pending in the Eastern District of Pennsylvania, to dismiss the claims of 12 plaintiffs due to non-compliance with pre-trial Administrative Order No. 12.

Robreno had ruled that the plaintiffs submissions were fatally flawed in that they failed to include specific histories of the plaintiffs’ asbestos exposure.

Lawyers for the plaintiffs, however, argued that the trial court’s order, which was originally issued in 2007 by the judge who previously presided over the litigation, did not impose this requirement, and even if it did, the omission regarding asbestos exposure history wouldn’t warrant dismissal with prejudice.

According to the Third Circuit’s opinion, the purpose of Administrative Order No. 12 was to assist the court with managing the large number of cases – the MDL once included more than 150,000 plaintiffs alleging 8 million-plus claims – and complex issues involved in the litigation; to allow meritorious cases to properly move to trial or settlement; and to avoid unnecessary burdens on defendants by requiring plaintiffs to provide certain medical and exposure information at the outset of the case.

“Judge Robreno, with the assistance of dedicated magistrate judges, has continued to oversee discovery and pretrial proceedings, allowing meritorious claims to advance and weeding out unsupported claims,” the Third Circuit’s opinion states.

The appeals court noted that soon after the MDL was assigned to him in the fall of 2009, Robreno amended Administrative Order No. 12, requiring plaintiffs alleging claims with regard to asbestos-related malignancies or non-malignant injuries to submit copies of the medical reports diagnosing their respective diseases.

The judge also amended the order to allow for the dismissal of any case filed by plaintiffs who fail to adhere to the terms of the order.

In the appeal over the dismissal of the 12 actions, the Third Circuit was charged with ensuring Robreno’s ruling was not “ordered arbitrarily,” and that it was done in compliance with Administrative Order No. 12.

In the end, the appeals court determined that Robreno ruled appropriately.

The appeals bench did not agree with the plaintiffs’ assertions that the pre-trial order did not require a complete exposure history; plaintiffs’ lawyers contended that simply indicating the nature and duration of a claimant’s work, as well as general allegations of exposure history, should suffice under the order.

While admitting that the language of Administrative Order No. 12 is “broad,” the panel wrote that it saw no reason not to defer to Robreno’s interpretation of the order that requires plaintiffs’ submissions to include asbestos exposure history.

“In this case, the District Court resolved any ambiguity as to the requirements of AO 12 in its November 2011 Order,” the Third Circuit ruling states, referring to the near two-year-old order issued by Robreno in which he dismissed 47 asbestos cases for failure to comply with the previous pre-trial order.

Of those 47 cases, the record shows, 19 were dismissed for failure to provide sufficient exposure history reports, and 24 were dismissed for failure to show an asbestos-related impairment, the record shows.

The Third Circuit wrote that as detailed in the November 2011 order, “the District Court believed that ordering plaintiffs to submit a ‘medical diagnosing report or opinion’ that was ‘based upon objective and subjective data which shall be identified and descriptively set out within the report or opinion,’ … meant that plaintiffs must include exposure history so as to comply with ‘generally accepted medical standards [that] call for information regarding duration, intensity, time of onset, and setting of exposure to asbestos.”

The appeals panel also wrote that while the “broad language” of the pre-trial order could support different interpretations, “it does not strike us as an abuse of discretion – especially given the District Court’s experience in overseeing these proceedings – to require a ‘complete occupational and environmental exposure history when asbestos-related disease is suspected.

“Presumably, the thousands of other AO 12 submissions for cases pending in the MDL are supported by more detailed, and thus satisfactory, exposure histories,” the ruling continued.

In the present appeal, the plaintiffs never denied that their submissions lacked exposure history, rather they focused their argument on insisting that Administrative Order No. 12 “did not require what the District Court said it did, advancing an argument … that dismissal was not warranted and that they should be permitted to amend their submissions,” the ruling notes.

The plaintiffs’ argument fails, however, because they could have supplemented their submissions to comply with the pre-trial order “at any time during the several months before the District Court’s issuance of its March 2012 Order,” the ruling states, referencing Robreno’s order dismissing the 12 actions at the heart of this appeal.

“Because we cannot conclude that the District Court abused its discretion by interpreting AO 12 to require a complete exposure history, and because Plaintiffs’ AO 12 submissions do not include complete exposure histories, Plaintiffs’ argument fails,” the ruling states.

The Third Circuit also affirmed Robreno’s decision to dismiss the 12 cases with prejudice, writing that it had “little difficulty concluding that the District Court considered and weighed the factors, viewing the dilatory and prejudicial aspects as outweighing all others.

“Moreover … the flaw in the submissions went to the very heart of the ‘meritorious’ aspect, making the weighing of that factor impossible,” the appeals court wrote.

The Third Circuit concluded by writing that Robreno’s ruling was “not the product of a clash of wills in a solitary case. Nor was it precipitous.”

Instead, the panel wrote, the ruling was typical in the context of managing multidistrict litigation as per Rule 41(b), which allows judges to enforce orders pertaining to the progress of their cases.

“Nowhere is this more important, in terms of degree of difficulty and the impact, than in multidistrict litigation cases, where the very purpose of the centralization before the transferee judge is the efficient progress of the cases in preparation for trial,” the Third Circuit held.

The appeals ruling follows oral arguments, which were held on April 3.

The Third Circuit Judges who heard the case were Anthony J. Scirica, Marjorie O. Rendell and Thomas I. Vanaskie.

The 12 plaintiffs/appellants in the case were as follows: Barry Wright, Joseph J. Repischak, Nancy Brix, Anthony J. Arendt, Luellen Dellenbach, Ronald J. Michels, Virginia M. Morris, Tracy Burzynski, Russell V. Ostrand, Michael R. Duffey, Roger Zerbel and Kathleen Stafford.

According to the court record, the plaintiffs were represented on appeal by lawyers Brian A. Schroeder, Michael P. Cascino and Robert G. McCoy, of the Chicago-based Cascino Vaughn Law Offices.