In Re Asbestos Products Liability Litigation (No. VI)

718 F.3d 236, 85 Fed. R. Serv. 3d 1108, 2013 WL 2364088, 2013 U.S. App. LEXIS 10991
CourtCourt of Appeals for the Third Circuit
DecidedMay 31, 2013
Docket12-2061, 12-2063, 12-2064, 12-2065, 12-2066, 12-2067, 12-2068, 12-2069, 12-2070, 12-2071, 12-2072, 12-3082
StatusPublished
Cited by89 cases

This text of 718 F.3d 236 (In Re Asbestos Products Liability Litigation (No. VI)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236, 85 Fed. R. Serv. 3d 1108, 2013 WL 2364088, 2013 U.S. App. LEXIS 10991 (3d Cir. 2013).

Opinion

OPINION

RENDELL, Circuit Judge:

This appeal comes to us from Multidis-trict Litigation case number 875 (“MDL 875”), otherwise known as the “Asbestos MDL,” involving asbestos cases from around the country, pending before Judge Robreno in the United States District Court for the Eastern District of Pennsylvania. The District Court, overseeing several thousand asbestos cases, dismissed the claims of twelve Plaintiffs 1 pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based on non-compliance with the District Court’s Administrative Order No. 12 (“AO 12”). Specifically, Judge Ro-breno determined that the Plaintiffs’ submissions were fatally flawed in that they failed to include specific histories of Plaintiffs’ exposure to asbestos. Plaintiffs contend on appeal, as they did in the District Court, that AO 12 did not impose this requirement, and urge, alternatively, that even if it did, under a proper balancing of the factors we outlined in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863 (3d Cir.1984), dismissal with prejudice was not warranted. For the reasons discussed below, we will affirm the District Court’s dismissal of the twelve cases at issue.

I. Background

The present cases — as well as several thousand others — were transferred to the Eastern District of Pennsylvania in 1991 as a result of a centralization of all asbestos-related cases, as ordered by the Judicial Panel on Multidistrict Litigation. See In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. 415 (Jud.Pan. Mult.Lit.1991). The Panel found that centralization would “best serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” Id. at 417. MDL 875 once included more than 150,000 plaintiffs and more than eight million claims. App. at 20. By the time Judge Robreno inherited the MDL in 2009, thousands of cases had been settled or otherwise resolved. Judge Robreno has been diligently overseeing the progress and resolution of the remaining cases since then.

To streamline the litigation of the thousands of cases in MDL 875, the original AO 12 was issued in 2007 by then-presiding District Judge Giles. Id. at 5-8. The purpose of AO 12, specifically, was to (1) assist the District Court in managing the large number of cases and the complex issues involved in the litigation; (2) to allow meritorious cases to move to trial or settlement properly; and (3) to avoid unnecessary burdens on defendants by requiring plaintiffs to provide certain medical and exposure information at the outset of the case. Id. at 41-42, n. 2. 2 Judge *241 Robreno, with the assistance of dedicated magistrate judges, has continued to oversee discovery and pretrial procedures, allowing meritorious claims to advance and weeding out unsupported claims. See generally Mark A. Behrens, 26 T.M. Cooley L. Rev 721, 747-55 (2009) (describing the progress in MDL 875 and Judge Robre-no’s efforts with respect to discovery, and the dismissal of fraudulent claims, especially where there were fabricated doctors’ diagnoses).

A. AO 12

In September 2009, soon after MDL 875 was assigned to him, Judge Robreno issued an amended AO 12. App. at 11-16. Amended AO 12 required plaintiffs to submit, inter alia, medical reports “upon which the plaintiff now relies for the prosecution of the claims as if to withstand a dispositive motion.” Id. at 12-13. Specifically, Amended AO 12 required that:

Each plaintiff asserting a claim based upon an alleged asbestos-related malignancy shall submit to the court a copy of the medical diagnosing report or opinion upon which the plaintiff now relies for the prosecution of the claims as if to withstand a dispositive motion.
Each plaintiff asserting a claim based upon an alleged non-malignant injury or condition shall submit to the court a copy of the medical diagnosing report or opinion upon which the plaintiff now relies for the prosecution of the claim as if to withstand a dispositive motion.
Each report or opinion submitted hereunder shall be based upon objective and subjective data which shall be identified and descriptively set out within the report or opinion.

Id. at 13 (emphasis in original). 3

Finally, Amended AO 12 (hereafter “AO 12”) provided that “[t]he court may dismiss pursuant to F.R.C.P. 41(b) the cases of any plaintiffs who fail to comply with the requirements set forth.” Id. at 14.

B. November 2011 Order

On November 14, 2011, Judge Robreno issued an order dismissing forty-seven CVLO cases for failure to comply with AO 12 (“November 2011 Order”). App. 19-39. Of those cases dismissed, nineteen were dismissed for failure to provide sufficient AO 12 reports with respect to exposure history and twenty-four cases were dismissed for failure to show an asbestos-related impairment. Id. at 29-39. In the November 2011 Order, Judge Robreno referred to the six Poulis factors that a court should consider before dismissing a case pursuant to Rule 41(b). Id. at 21-22.

Although the plain language of AO 12 does not state that plaintiffs must provide a complete exposure history, the District Court based its dismissal of eases that failed to include such information “on the language in AO 12 that emphasizes that *242 plaintiffs should submit medical diagnosis or opinions based on medically accepted principles and practices, and based on statements from reputable medical organizations that require occupational and environmental exposure history when screening for asbestos-related diseases.” Id. at 33. Accordingly, the District Court required AO 12 submissions to comply with “generally accepted medical standards [that] call for information regarding duration, intensity, time of onset, and setting of exposure to asbestos.” Id. at 31 (internal quotation marks and citation omitted).

Furthermore, the District Court interpreted AO 12 to require “the medical evidence presented by Plaintiff [to] contain a diagnosis of a symptomatic asbestos-related disease.” Id. at 34. The District Court therefore dismissed claims that were supported by AO 12 submissions that included only diagnoses of pleural plaques and pleural thickening. Id. at 34.

C. Rule 41(b) Motions to Dismiss and March 2012 Order

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718 F.3d 236, 85 Fed. R. Serv. 3d 1108, 2013 WL 2364088, 2013 U.S. App. LEXIS 10991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-asbestos-products-liability-litigation-no-vi-ca3-2013.