Litigation Management

SPECIFICALLY SPEAKING | ENVIRONMENTAL
Making WAVES
The impact of MDL 875 on Asbestos Litigation
By Michelle Leslie Stegmann and John C. McMeekin ii

The Federal Asbestos MDL, MDL 875, was established by the Joint Panel on Multi-District Litigation in 1991forthe express purpose of adjudicating millions of asbestos personal injury claims. MDL 875 became the model for subsequent state asbestos MDLs and has influenced the management of mass torts programs around the country. Asbestos litigation was already a mature tort. Over the past 20 years, the number of cases skyrocketed as did the financial impact to companies and insurers. Manufacturers of high-dose, thermal insulation products are bankrupt. The new defendants are not the household names of thermal insulation, but defendants that incorporated asbestos as a minor component in their product.

Initially maligned for the lack of progress, the MDL has transformed to a fast-paced, results-oriented docket tasked with sorting out cases that can be settled or dismissed and pushing meritorious cases to fruition. The MDL is now a forum of choice for both defendants and plaintiffs but for differing reasons.

Judge Eduardo C. Robreno assumed the role of presiding judge of MDL 875 in 2008. He took an inventory of the docket to determine which cases were active and needed a scheduling order to guide the parties to resolution or remand for trial. To facilitate this initial sifting and sorting, Judge Robreno issued Administrative Order 12 that required plaintiffs to produce basic information including initial medical criteria. Plaintiffs’ counsels were now compelled to critically assess whether to proceed and at what cost. New filings dropped significantly, and while some believe that the medical criteria of the order lacked enforcement, it undoubtedly played a role in the dismissal of approximately 500,000 claims.

Another significant
development in asbestos
litigation has been the
assignment of groups of
cases to magistrate judges
to handle pre-trial mat-
ters. Parties also have
the option of trying their
case in the USDC Eastern
District of Pennsylvania
by consent or before a
District Judge on remand.
Cross claims that may be
taken for granted in a state practice are
not automatically preserved. Counsel
should inquire how these claims are
to be preserved or addressed in initial
pre-trial conferences. The jury venire
is from Philadelphia and the sur-
rounding five counties and tends to
be diverse in terms of socioeconomic,
education and ethnicity. In the first
case tried to verdict, Schumacher v.
American Biltrite Inc, the jurors were
sophisticated enough to comprehend
the distinction between general and
specific causation and returned a ver-
dict in favor of the plaintiff on gen-
eral medical causation and in favor of
defendants on specific causation.

Significant Rulings Existing opinions, which can be found on the MDL 875 website, can have precedential value for comparison purposes of assessing a particular defendant’s potential motion or even as a concise summary of the various points of law in each jurisdiction. The opinions contain both a description of the type of motion and a brief summary of the opinion, which can be readily searched by key word function. Some of the most contested motions have focused on removal of otherwise non-diverse, exigent cases, which are less than a year from date of filing after the settlement or dismissal of the last non-diverse defendant. Judge Robreno has issued a series of decisions on the vol-untary/involuntary dismissal rule for establishing diversity and cautioned that, while sanctions may not yet be appropriate, removals that are improper strain limited judicial resources.