IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April 30, 2009
IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)
The opinion of the court was delivered by: Eduardo C. Robreno, J.
MDL DOCKET No. 875
THIS DOCUMENT RELATES TO ALL ACTIONS
MDL no. 875 involves claims relating to personal injuries allegedly caused by asbestos products. In 1991, the Judicial Panel on Multidistrict Litigation (the "Panel") transferred and consolidated these cases in the Eastern District of Pennsylvania as MDL 875. According to the January 1, 2009 Panel report, there were 58,625 cases, encompassing 3.3 million claims, pending in MDL 875.*fn1
To manage this complex case, over the course of the litigation, the Court has issued 17 administrative orders. To complement this administrative architecture, the presiding Judicial Officer has instituted several new policies and procedures*fn2 that expanded upon the case management system put in place by Judge Weiner and Judge Giles.*fn3 As a result, a significant number of pending claims have been resolved in the past several months.*fn4 Plaintiffs' motion requests amendments to six of these administrative orders. For the reasons set forth below,*fn5 the Court declines to adopt Plaintiffs' proposed amendments.
II. DISCUSSION OF THE MERITS
A. Procedure for Remand of Appropriate Cases to Transferor District Courts
Plaintiffs' first request that the Court remand: (1) the 151 malignancy cases listed in Exhibit "J" of their motion; and (2) any case in which a motion for remand has already been filed. (Pls. Mot. at 17, Ex. J.) This request for a wholesale remand does not include specific information regarding the circumstances or procedural status of any individual case. The motion simply lists the respective Plaintiff's name, civil action number, case style and disease. (Id. at Ex. J.) Previously, the Court declined a similar wholesale disposition of cases suggested by defendants in connection with enforcement of Administrative Order no. 12. In re: Asbestos Prods. Liab. Litig. (No. VI), 254 F.R.D. 266, 268 (E.D. Pa. 2008).
Remanding cases to the transferor court at an early date remains an important administrative goal of the Court. Remand of individual cases, however, should occur only in a manner consistent with the goal of the efficient administration of the case,*fn6 and in the interest of justice in the individual case being remanded.*fn7 In order to promote these goals the Court will implement a procedure whereby requests for a suggestion of remand in individual cases may be brought to the attention of the Court.*fn8
By order on this day, the Court will issue Administrative Order no. 18, which provides that Plaintiffs may file a motion requesting the entry of a suggestion of remand with the Court. This motion must include, at a minimum, the following information:
1.) The civil action number of the case in the district where it was originally filed;
2.) The civil action number of the case in the Eastern District of Pennsylvania, if the case has been assigned an E.D. Pa. civil action number;
3.) The name of the plaintiff in the case;
4.) The diagnosing report or opinion relied upon by the plaintiff in compliance with Administrative Order no. 12;
5.) The identity of defendants that are still viable*fn9 in the case;
6.) A certification that the motion requesting the suggestion of remand has been served upon counsel for all other parties to the action; and
7.) The specific reasons why remand is appropriate in this case. In particular, Plaintiff should specify:
a.) Whether Plaintiff has complied with Administrative Orders 12 and 12A;
b.) Whether the injured Plaintiff is alive;
c.) Whether the parties have submitted a Rule 26(f) report to the Court;
d.) Whether all relevant discovery has been completed or has been substantially completed. If not, identify the discovery still to be completed;
e.) The extent to which settlement conferences have been held in the case and the status of settlement negotiations;
f.) Whether there are any outstanding motions in the case. Counsel seeking remand should be able to certify that there are no outstanding motions remaining in the case;
g.) Whether, if the case is remanded, the Plaintiff is prepared for trial without delay once on the transferor court's normal docket; and
h.) The status of congestion in the transferor court docket.
Once a motion requesting a suggestion of remand has been filed with the Court and served on all other parties to the action, any party opposing the motion will have fourteen (14) days in which to file a response. If a response is filed, then the Court will decide whether to suggest remand based on the contents of the motion and the response, or schedule a hearing on the matter. If there is no response within fourteen days, the other parties to the action are deemed to have consented, and the Court will decide whether to suggest remand based on the content of that respective Plaintiff's motion.*fn10
Under these circumstances, Plaintiffs' request to remand the 151 named malignancy cases, and the numerous other cases in which a motion to remand has been filed previously is denied. If Plaintiffs believe that remand is appropriate in any individual case, the Plaintiff in such case may file a motion for suggestion of remand that conforms to the requirements of Administrative Order no. 18.
B. Motley Rice's Role as Plaintiffs' Steering Committee Liaison Counsel for the MDL 875 Submissions Database
Next, Plaintiffs' request that the Court relieve Motley Rice ("Motley Rice") of its duties regarding the MDL 875 submissions database. (Pls. Mot. to Amend at 17.) The database was created by Administrative Order no. 13 as a tool for the Court to manage the information submitted by Plaintiffs pursuant to Administrative Order no. 12.*fn11 (Administrative Order no. 13, doc. no. 5040, Jan. 29, 2008.) The law firms of Forman, Perry, Watkins, Krutz & Tardy, LLP ("Forman Perry") and Motley Rice were appointed to assist the Court in managing the database by Defendants' steering committee and Plaintiffs' steering committee, respectively. Id. Forman Perry was also tasked with uploading to the database any paper Administrative Order no. 12 submissions that had been submitted prior to the creation of the database. When Forman Perry last updated the Court on the progress of uploading paper submissions, Forman Perry indicated that the database included 80% of such submissions.
The continuing assistance of counsel from each steering committee is important in maintaining the functionality and impartiality of the database. The Court is very appreciative of the many hours that both Motley Rice and Forman Perry have spent assisting with the administration of the MDL 875 submissions database.
With that said, the Court has no particular preference as to which member of the Plaintiffs' steering committee is liaison counsel in charge of the MDL 875 submissions database. Nevertheless, Motley Rice has not provided the Court with the name of another member of the steering committee that is ready, willing and able to fill their role. The Court is reluctant to appoint another law firm sua sponte to fill this important position. If Motley Rice reaches an agreement with another steering committee member to take over these duties, the Court will entertain a motion to relieve Motley Rice at that time. Meanwhile, Motley Rice's obligations as Plaintiffs' steering committee appointee for the database, pursuant to Administrative Order no. 13, shall continue until further order of the Court.
C. Filing Dismissal Orders on PACER/ECF in the Eastern District of Pennsylvania
The third request made by Plaintiffs is that the Court allow Plaintiffs to file dismissal orders and/or orders for transfer to the "bankruptcy only" docket on PACER/ECF. (Pls. Mot. to Amend at 17.) The Clerk of the Court is in the process of transferring all electronic files in all cases to this judicial district and assigning each individual plaintiff in the MDL 875 litigation from across the country an Eastern District of Pennsylvania civil action number.*fn12 If the case involves multiple plaintiffs, the Court is severing the cases and requiring such Plaintiffs to file an amended complaint and pay a filing fee. Each Plaintiff who files an amended complaint is then assigned an E.D. Pa. number.*fn13 Once a Plaintiff is assigned an E.D. Pa. civil action number, either by transfer of the file from the transferor district or by the filing of an amended complaint in this district, these motions may be filed electronically in the E.D. Pa. using the PACER/ECF system. Until Plaintiff is assigned an E.D. Pa. civil action number, any motions filed on behalf of that Plaintiff must be filed in the transferor district court and a separate copy must be sent to the clerk in the E.D. Pa. This policy is reflected in the recently amended Administrative Order no. 11. (Administrative Order no. 11, doc. no. 5936, Mar. 16, 2009.)
Once all of the cases are transferred from the various district courts to the E.D. Pa., which the Court expects will occur in the next few months, PACER/ECF filing on the E.D. Pa system will be available to all Plaintiffs and Defendants in the entire MDL 875 litigation.
D. Grouping Non-Malignant Claims for Settlement Conference
Finally, Plaintiffs request that the Court allow them to group non-malignant cases for settlement conferences. (Pls. Mot. to Amend at 17.) The Court is scheduling settlement conferences, both in individual cases and groups of cases, on an ongoing basis. Four Magistrate Judges and at least one District Judge are also conducting settlement conferences in appropriate cases on an ongoing basis. With these available resources, the Court is able to schedule many individual and group settlement conferences simultaneously. If Plaintiffs' counsel wishes to request a settlement conference in a case or group of cases, the procedures making such request are available on the MDL 875 website. See "Settlement Conference Procedures," MDL 875: In re: asbestos website, available at www.paed.uscourts.gov/mdl875.asp.
The Court's case management procedures are not arbitrary. These procedures are designed to help manage a large and diverse docket and to accommodate fairly the many diverse interests present in the litigation. The request by certain Plaintiffs to alter it wholesale will neither improve efficiency nor promote the interests of justice.
An appropriate order follows.