PENNSYLVANIA RECORD

A federal judge recently granted 418 dismissal motions filed by attorneys

representing owners of shipping vessels who were defendants in the multidistrict asbestos litigation consolidated at the Eastern District of Pennsylvania.

U.S. District Judge Eduardo C. Robreno, in an Aug. 26 memorandum, dismissed the hundreds of cases from the MDL’s maritime docket, which he has overseen since 2008, although Robreno simultaneously refused to toss 147 actions in which defense lawyers argued improper service of process.

Robreno agreed with defendants in the 418 since-dismissed cases that the court lacked personal jurisdiction over the lawsuits.

According to court records, the maritime docket cases account for about 2,671 cases in the asbestos MDL, which is the largest group of cases that still remain in what is known as MDL 875.

The plaintiffs in the maritime cases include former merchant marines and their respective representatives, survivors and spouses.

The litigation dates back to the mid-1980s, when the Jaque Admiralty Law Firm began filing cases in the Northern District of Ohio on behalf of merchant marines who allegedly sustained injuries from exposure to asbestos-containing products on commercial shipping vessels, according to Robreno’s memorandum, which recaps the history of the litigation in great detail.

The defendants named in the lawsuits were the manufacturers and suppliers of the asbestos-containing products, as well as the ship owners themselves.

Each lawsuit named close to 100 individual defendants, Robreno’s memorandum shows, and by 2009 more than 50,000 cases had been filed involving millions of claims against hundreds of defendants.

At first, the cases remained in the Northern District of Ohio, but because the claims fell within the court’s admiralty jurisdiction they were ultimately assigned to a maritime docket titled “MARDOC,” a history of the litigation shows.

The maritime cases were consolidated and transferred to the U.S. District Court for the Eastern District of Pennsylvania in 1991.

Five years later, the judge overseeing the litigation dismissed all cases that were then pending, finding that the plaintiffs provided no real medical or exposure history.

The MDL court ended up allowing asymptomatic cases to be reactivated if plaintiffs became impaired and were able to produce evidence of an asbestos injury and evidence of exposure, the record shows.

In his recent memorandum, Robreno wrote that during the past quarter-century, the MDL’s maritime docket has reached “Dickensian proportions.”

While plaintiffs have died, new laws have been enacted, and lawyers and judges have come and gone, the one constant, Robreno wrote, is that the maritime docket “has grown in numbers, complexity and scope.

“Now, some 25 years later, the Court, with the assistance of counsel, is called upon to divine the meaning of less-than-pellucid orders entered long ago by prior courts, and to disentangle the parties from a web of procedural knots that have thwarted the progress of this litigation,” the judge wrote.

In deciding to dismiss the 418 cases from the docket, Robreno agreed with the defendants’ argument regarding lack of personal jurisdiction.

The defendants in the matter were split into two categories: those with no connection to Ohio, which is where the cases were originally filed, and those who have some contacts with Ohio that are unrelated to the plaintiffs’ injuries.

As to the first category, the plaintiffs no longer contend, as they had prior, that there is jurisdiction over the defendants under the “national contacts” or maritime jurisdiction theory, with the plaintiffs instead arguing that the defendants waived or forfeited their personal jurisdiction defense when they filed an answer to the complaints based on orders by the judge who originally oversaw the litigation.

The defendants countered that they had filed their answers “under protest,” meaning they didn’t waive any defense voluntarily.

They also noted that at the time they asked for leave to file a motion for interlocutory appeal regarding the issue of personal jurisdiction that the court never ruled on.

Those factors considered, the defendants maintained that there is no personal jurisdiction over them in these cases.

The other group of defendants, those with Ohio contacts, argued that they are not subject to personal jurisdiction in Ohio since Ohio doesn’t recognize general jurisdiction.

Addressing the second group, Robreno wrote that none of the nine categories of contacts under Ohio’s long-arm statute would create personal jurisdiction for these particular defendants.

“As these defendants’ contacts do not fall within the statutorily enumerated situations which give rise to personal jurisdiction … there is no personal jurisdiction over these defendants,” Robreno wrote.

As for the other group, the defendants with no Ohio contacts, Robreno noted that they were essentially being given their first chance to argue the issue of personal jurisdiction before the court since 1989.

Robreno wrote that it is apparent from the record that despite filing answers to the prior judge’s orders, the defendants did not intend to waive their defense, since they filed their answers “under protest.”

“By filing answers which clearly identified the defense … while at the same time seeking interlocutory review of [the previous judge’s] order, defendants preserved and did not waive the defense,” Robreno wrote.

In dismissing the batch of 400-plus cases, Robreno also noted that in addition to the fact that there is no personal jurisdiction over these defendants, transfer to other districts was also not permissible.

Addressing the 147 cases that he refused to dismiss from the litigation, Robreno wrote that there was proper service of process whereas the initial suits were concerned.

In the end, the judge determined that the complaints were, in fact, served upon the defendants in accordance with Ohio law.

The defendants had argued that service by counsel, instead of by the clerk of court in the state court, was ineffective under Ohio law and that only the certified mailing of legal papers was effective.

The plaintiffs maintained that they served the cases as directed by the prior judge under Ohio law, which they contended allows suits to be served via mail to defendants at their business addresses.