Asbestos lawyers want thousands of cases remanded from MDL to state courts

By Steve Korris | Feb 26, 2009



PHILADELPHIA – Now that federal judge Eduardo Robreno has ordered asbestos lawyers to state a specific claim against every business that each of their clients sued, the lawyers plead to escape his jurisdiction.

Motley Rice of Mount Pleasant, S.C., has asked Robreno to remand tens of thousands of asbestos suits to state courts where they started.

Robreno presides over about 58,000 asbestos suits from all around the nation by special assignment of the U.S. Judicial Panel on Multidistrict Litigation.

The average suit names 56 defendants, so the suits contain more than three million distinct claims.

Robreno ordered solid information behind all three million claims, but so far asbestos lawyers have provided no basis for about half the claims.

Motley Rice wants him to reconsider the order and rule that defendants shouldn't have removed the suits from state and federal courts for multi district litigation, or MDL.

"When a plaintiff is dying of mesothelioma, lung cancer or even asbestosis, the delay attendant to the MDL process creates a particularly strong incentive for defendants to use removal as a weapon," John Herrick of Motley Rice wrote on Dec. 1.

"Since removal and transfer to the MDL will almost always mean that the plaintiff will die before his trial date, defendants have a powerful reason to pursue them, or at the very least to extort a dismissal," he wrote.

He recommended giving priority to malignant cancer cases.

"If the malignancy cases are remanded, the numerous district courts could absorb the remanded cases into their respective dockets and more closely attend to any discovery issues that develop," he wrote.

"No statute prohibits this court from remanding cases for discovery to be conducted at the trial court level," he wrote.

He recommended granting all pending motions to remand cases to state courts.

He recommended grouping cases from mass screening sessions for prompt settlement conferences.

In a footnote he wrote that if Robreno dismisses every case that relied on a diagnosis from a doctor who has asserted the Fifth Amendment right against self incrimination, he should declare that the diagnosis didn't trigger the statute of limitations.

In response, Marcy Croft of Jackson, Miss. called Herrick's motion "a thinly veiled ploy to force defendants to consider for settlement thousands of meritless, and likely fraudulent, non-malignant, screened claims."

She wrote that it would "effectively dispose of any requirement that screened plaintiffs' claims be supported by a valid and legitimate diagnosis."

"[T]his court has taken enormous strides toward eliminating the tens of thousands of non-meritorious, fraudulent, stale, and/or abandoned asbestos claims that litter its docket," she wrote.

She wrote that plaintiffs seek to avoid at all costs the court's review of litigation doctors and screening companies.

"The majority of plaintiffs with nonmalignant claims pending before this court have yet to justify whether they had an adequate basis for filing their claims in the first instance," she wrote.

"Moreover, no meaningful settlement conferences can be held unless and until a plaintiff is able to prove that he or she has a credible diagnosis of an asbestos related disease and has actually suffered an injury as the result of asbestos exposure," she wrote.

Croft moved last year to dismiss cases that lacked specific claims, but Robreno ruled that he wouldn't sign a blanket order.

He invited defendants to tell him exactly which cases he should dismiss, and he set 12 hearings from April through June to hear their motions.

Magistrates under his direction have set 10 conferences in April to assess qualifications of plaintiff experts.

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