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3rd Circuit Affirms Dismissal of Asbestos Cases for Failure to Comply with AO 12

November 1, 2013 – Media Coverage

PHILADELPHIA –– The U.S. Court of Appeals for the 3rd Circuit has denied attempts by several asbestos plaintiffs to have an order dismissing their claims reversed, backing the national MDL court’s requirement that plaintiffs must submit sufficient exposure histories.

In the Oct. 17 opinion, the 3rd Circuit further opined that the plaintiffs could not assert challenges of improper retroactive application since they were put on notice of the requirement in a decision issued by the MDL court eight months before their own claims were dismissed.

Plaintiffs Harold Landes, George Conner, Walter J. Specht, and Thomas Streber contended in their respective lawsuits that they were injured as a result of asbestos exposure. All of the claims were pending in the national Asbestos Products Liability Multidistrict Litigation docket at the time of their dismissal.

Under Administrative Order No. 12, plaintiffs are required to “disclose medical diagnoses supporting his or her claims by submitting copies of the medical diagnosing report or the opinion upon which the plaintiff’s asbestos-related claim relied,” the 3rd Circuit noted.

In Nov. 2011, the MDL Judge Eduardo C. Robreno dismissed a number of cases for failure to submit several items in accordance with AO 12, including sufficient exposure history. Eight months later, the Judge Robreno reiterated his stance on the requirements of AO 12, and dismissed the instant cases.

The plaintiffs appealed.

On appeal, the plaintiffs argue that the MDL judge misinterpreted AO 12 and, further, erred by applying the “new” requirements retroactively.

The 3rd Circuit first rejected the plaintiffs’ interpretation argument, however, deferring to the Judge Robreno’s reading of his own order.

“While the broad language of AO 12 could support other interpretations, we find no reason not to defer to the District Court’s interpretation of its own order requiring plaintiffs to submit asbestos exposure history,” the 3rd Circuit wrote. “For the same reasons, we also find that the District Court did not abuse its discretion in imposing the asbestos exposure history requirement.”

The 3rd Circuit also found no merit with the plaintiffs’ retroactivity argument, noting that judges overseeing “massive” litigations have the authority to manage their own dockets.

“…[T]he District Court … reiterated the case management needs of asbestos multidistrict litigation and the objective of AO 12, including the need ‘to avoid unnecessary burdens on defendants,’” the appellate court said. “By not presenting the exposure history necessary to withstand a motion to dismiss, Plaintiffs delayed the progress of their cases and unduly burdened the Defendants.”

The 3rd Circuit also held that the MDL judge did not err by not providing the plaintiffs with an individualized analysis of their claims.

“Because Plaintiffs failed to provide the submissions necessary to withstand a dispositive motion, the Court was left with little to assess in terms of individualized analysis,” the court concluded.

“Plaintiffs’ argument also fails because they were put on notice in Nov. 2011 of the District Court’s view on the diagnostic information required for their cases,” the 3rd Circuit continued. “Rather than correcting their submissions to comply with AO 12, which they had ample opportunity to do so, Plaintiffs chose to argue that the District Court’s interpretation was flawed and that their submissions were sufficient. The consequences of taking this route were clear given the District Court’s previous dismissals in November 2011.”

The plaintiffs are represented by Michael P. Cascino and Robert G. McCoy of Cascino Vaughan Law Offices in Chicago.

The defendants were represented by R. Robert Stommel of the Stommel Law Group in Plainfield, N.J.; Douglas B. King of Wooden & McLaughlin in Indianapolis; Timothy L. Krippner, Jason Kennedy, Jonathan Lively, Adam Jagadich, Jill Felkins, Emily Zapotocny, and Mark C. Sampson of Segal, McCambridge, Singer & Mahoney in Chicago; Michael P. Bishop of Cohen Garelick & Glazier in Indianapolis; Susan E. Mehringer of Cantrell, Strenski & Mehringer in Indianapolis; Joseph P. Sullivan of Sanchez, Daniels & Hoffman in Chicago; Steven D. Hardin of Baker & Daniels in Indianapolis; Ollie M. Harton of Hawkins Parnell & Young in Atlanta; Dennis F. Cantrell of Cantrell, Strenski & Mehringer in Indianapolis; Edward M. Casmere of Schiff Hardin in Chicago; David M. Setter of Forman, Perry, Watkins, Krutz & Tardy in Denver; Jennifer M. Studebaker and Walter G. Watkins Jr., of Forman, Perry, Watkins, Krutz & Tardy in Jackson, Miss.; James K. Wheeler of Coots Henke & Wheeler in Carmel, Ind.; Knight S. Anderson of Tucker Ellis in Cleveland; and Richard Lauth of Evert, Weathersby & Houff in Atlanta.

In re: Asbestos Products Liability Litigation (No. IV), Nos. 12-3822, 12-3824, 12-3825 (3rd Cir.).

Document is Available Call (800) 496-4319 or Search Opinion Ref# ASB-1311-12

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