MDL-875: Past, Present and Future Eduardo C. Robreno, Presiding Judge United States District Court for the Eastern District of Pennsylvania 1 © June 12, 2009 As Amended February 17, 2012 Available at:

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.” 2

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. 3 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. 4 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 5 Uses of Asbestos

Building tradesmen Sailors on ships Home renovators Automotive repair technicians 6 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 7 Diseases Linked to Asbestos Exposure

Asbestos related diseases have latency periods ranging from years for asbestosis, years for lung cancer, up to 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. 8 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. 9 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 10 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) 11 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) 12

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 million MARITIME DOCKET The Maritime Docket (MARDOC) originally consisted of about 48,000 cases and millions of claims. 13

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 14

Foundations for Resolving the Case The Court issues Administrative Orders 11 and

Administrative Order 11 Transfer of all electronic dockets in MDL-875 to the E.D. Pa. CM/ECF system. 16

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 , 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986)). 17

Management Plan Operating Principles Personnel Procedures Communication 18

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. 19

Personnel as 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,

Procedures Motions Settlements Summary Judgment Trials or Remands 21

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 22

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Website statistics 24

Website statistics (cont’d) 25

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. 26

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 27

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. 28

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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. 30

31 Suggestion of Remand Template: page 1 of 2

32 Suggestion of Remand Template: page 2 of 2

33 Suggestion of Remand Memorandum: page 1 of 2

34 Suggestion of Remand Memorandum: page 2 of 2

35 Test Case Totals Between November 2008 & December 2009: Land Docket (year one)

36 Case Totals Between January 2010 & December 2010: Land Docket (year two)

37 Case Totals Between January 2011 & December 2011: Land Docket (year three)

38 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

39 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

40 Maritime Docket divided into 7 groups (common defendants & geographic locations): Every case is on a scheduling order

41 Case Totals Between January 2010 & December 2010: Maritime Docket (year one)

42 Case Totals Between January 2011 & December 2011: Maritime Docket (year two)

43 Case Totals (land + MARDOC) as of January 20, 2012 By Year By docket Year 1 Year 2 Year 3 Year 4

MDL-875 Statistics as of January, 2012 for 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 44

45 Statistics as of January 20, 2012, by jurisdiction

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48 Judge Robreno’s Suggestion Concerning Future Tag-Alongs (or, “saying goodbye”): Page 1 of 3

49 Judge Robreno’s Suggestion Concerning Future Tag-Alongs: Page 2 of 3

50 Judge Robreno’s Suggestion Concerning Future Tag-Alongs: Page 3 of 3

51 Order Adopting Judge Robreno’s Suggestion Concerning Future Tag-Alongs: page 1 of 3

52 Order Adopting Judge Robreno’s Suggestion Concerning Future Tag-Alongs: page 2 of 3

53 Order Adopting Judge Robreno’s Suggestion Concerning Future Tag-Alongs: page 3 of 3

List of Jurisdictions for Future Tag-Along Cases 54

Legal Searches 55 1.Opinions webpage on MDL-875 website – Downloadable PDFs of opinions by Judge Robreno and Magistrate Judges 2.Excel spreadsheet – Also can be downloaded from opinions webpage – Searchable, sortable list containing summaries of Judge Robreno’s and Magistrate Judges’ opinions 3.Westlaw and LexisNexis – Westlaw search example: (government contractor defense) & prelim(875 mdl-875) – Lexis search example: (government contractor defense) & notice(asbestos) Denotes that this is an MDL-875 opinion / order

56 MDL-875 Legal Architecture

57 MDL-875 Legal Architecture Continued

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59 Lessons Learned: Legal Architecture of future asbestos litigation Procedural paradigm Need for strategy and resources Win-win for plaintiffs and defendants