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In Re: Asbestos Products Liability Litigation (No. Vi) Consolidated Under v. Various Defendants

August 13, 2012

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI) CONSOLIDATED UNDER
VARIOUS PLAINTIFFS
v.
VARIOUS DEFENDANTS



The opinion of the court was delivered by: Eduardo C. Robreno, J.

Docket ("MARDOC"), listed in Exhibits "A" and "B," attached

C O R R E C T E D MEMORANDUM*fn1

TABLE OF CONTENTS I. INTRODUCTION..............................................2 II. BACKGROUND................................................3 III. LEGAL STANDARD........ ...................................9 A. Motion to Dismiss....................................9 B. Applicability of Maritime Substantive Law...........10 1. Locality Test..................................12 2. Connection Test................................12 C. Applicability of Federal Procedural Law.............13 IV. DISCUSSION...............................................15 A. Non-Cognizability of Asymptomatic Conditions........16 1. Connection Between the Jones Act, Maritime Law, and FELA..................................16 2. Requirement of an "Injury" under the Jones Act, Maritime Law, and FELA....................18 3. The Trend Among the States.....................22 4. Public Policy Considerations...................24 B. Alternative Vehicles Suggested by Defendants to Dispose of the Claims...............................25 1. Ohio Asbestos Litigation Reform Act............25 2. Administrative Order No. 8.....................28 C. Applying Maritime Law to Instant Claims.............30 V. CONCLUSION...............................................31 : Certain cases on the Maritime

I. INTRODUCTION

Before the Court are 5,464 motions to dismiss in approximately 2,672 cases that are part of MDL 875,*fn2 the consolidated asbestos products liability multidistrict litigation pending in the District Court for the Eastern District of Pennsylvania.

All of the Plaintiffs*fn3 whose cases are subject to the present motions to dismiss are or were merchant marine seamen during the time of their alleged exposures to asbestos. Some claims are Jones Act claims under 46 U.S.C. §§ 30101-30106 (2006),*fn4 while others sound in general maritime law.

Defendants in these cases fall into three categories: "(1) ship owners or ship operators of the vessels on which the injured parties were employed; (2) product manufacturers whose asbestos-containing products were used aboard those vessels; and

(3) railroad companies whose railcars were transported on those vessels." Pls.' Resp. in Opp'n at 3, No. 02-875 (E.D. Pa. Feb. 8, 2012), ECF No. 729.

II. BACKGROUND

These motions to dismiss have been filed in cases that are on the Court's MDL 875 maritime docket ("MARDOC"). The MARDOC cases account for approximately 3,500 cases in MDL 875, the largest group of cases that still remains on this multidistrict litigation docket.

On June 27, 2011, the MARDOC cases were referred to the Honorable Elizabeth T. Hey, U.S. Magistrate Judge, for oversight and supervision. On October 4, 2011, both Judge Eduardo C. Robreno and Magistrate Judge Hey signed Administrative Order No. 25 ("AO 25"),*fn5 with the goal of "facilitat[ing] the expeditious movement of pending cases on the MDL 875 (MARDOC) docket[,]" some of which had been pending for more than twenty years.*fn6

AO 25 was created with the goal of streamlining the MARDOC litigation in light of the vast number of cases on the MARDOC docket, and in designing AO 25, the Court used as a model the relevant parts of Amended Administrative Order No. 12 ("AO 12").*fn7 AO 25 sets forth not only procedural and filing requirements, but also ordered that by October 17, 2011, Plaintiffs' counsel were to file a "certification in each plaintiff's case that they have provided all defense counsel in that case (1) a copy of the medical report or opinion containing a physician's diagnosis of the plaintiff with the asbestos-related disease or injury alleged in the complaint." Admin. Order No. 25 at § B(2), No. 02-875 (E.D. Pa. Oct. 5, 2011), ECF No. 552 [hereinafter "AO 25"]. Therefore, Defendants in the present cases have been in possession of Plaintiffs' medical reports or opinions since October 17, 2011, or earlier.

Section (B)(4) of AO 25 is entitled, "Defense Motions as to Choice of Law and Compensability of Claims." Under this section, Defendants could argue by way of motions to dismiss that the asbestos-related injuries alleged by Plaintiffs are non-cognizable as a matter of law. Defendants were instructed to, in any motions to dismiss, address the law that applies to each Plaintiff's claim against each Defendant, in addition to discussing the law that applies to cognizable injuries.*fn8

Defendants have done just that. These motions to dismiss are presently before the Court.*fn9

There are two overarching issues before the Court. First, the Court must determine which law applies to the present maritime docket cases: maritime law or a given state's law (for example, Ohio law). For reasons discussed herein, the Court finds that maritime law, rather than a given state's law, applies to all of these cases.

Second, the Court must decide when, under maritime law (including the Jones Act), a seaman is deemed to be "injured" as a result of his alleged exposure to asbestos, such that he has a cognizable claim. The Court today decides that a seaman without physical impairments resulting from asbestos exposure, including one who manifests only pleural changes,*fn10 has not suffered an "injury" under maritime law, and therefore has no cognizable claim.

As set forth in Exhibits "A" and "B" to the accompanying Order, the Court will grant Defendants' motions to dismiss the claims of Plaintiffs who have suffered no physical impairments*fn11

-- including those who manifest only pleural changes. See Ex. "A." The Court will deny Defendants' motions to dismiss the claims of Plaintiffs who have asbestos-related malignant or symptomatic physical injuries, such as lung cancer. See Ex. "B." The Court has incorporated Defendants' case lists into Exhibits "A" and "B," as Plaintiffs failed to provide any case lists to the Court in connection with their opposition to Defendants' motions to dismiss. See supra n.9. To the extent that Plaintiffs believe that the cases of symptomatic Plaintiffs -- for example, Plaintiffs who suffer from physical impairments and do not have solely pleural changes -- are included in Exhibit "A," but should properly be included in Exhibit "B," Plaintiffs shall have thirty days following the date on which the order accompanying this opinion is entered in which to show cause why the medical records and evidence that they previously have submitted pursuant to AO 25 support reopening the cases of those specific Plaintiffs and classifying their injuries as symptomatic and related to asbestos exposure. Defendants shall then have fifteen days in which to contest or challenge such medical records and evidence.

III. LEGAL STANDARD

A. Motion to Dismiss

A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering such a motion, the Court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007) (internal quotation marks omitted). To withstand a motion to dismiss, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff's legal conclusions are not entitled to deference and the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In deciding a Rule 12(b)(6) motion, the Court is to limit its inquiry to the facts alleged in the complaint and its attachments, matters of public record, and undisputedly authentic documents if the complainant's claims are based upon these documents. ...


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