Asbestos judge turns up the heat in MDL

By Steve Korris | Sep 10, 2009


PHILADELPHIA – U.S. District Judge Eduardo Robreno aims to purge the national asbestos docket of lawsuits that started in mass X-ray screenings.

"Current litigation efforts in this court and in the silica litigation have revealed that many mass screenings lack reliability and accountability," Robreno wrote on Sept. 3.

He wrote that failure of screeners to adhere to necessary medical standards and regulations creates "inherent suspicion as to their reliability."

"This court will therefore entertain motions and conduct such hearings as may be necessary to resolve questions of evidentiary sufficiency," he wrote.

Robreno laid down other new rules to sort valid claims from flimsy and forgotten ones.

He took charge of asbestos last October by appointment of the U.S. Judicial Panel on Multidistrict Litigation.

He ordered plaintiff lawyers to sever mass claims into individual ones and amend each complaint to state specific allegations against each defendant.

The rule would have multiplied about 90,000 suits into about three million, if every plaintiff had followed through on every claim.

Instead of filing three million suits, plaintiff lawyers started settling claims.

Robreno wrote in May that a half million claims had been resolved since January through settlement, dismissal or other means.

He holds regular hearings to dismiss plaintiffs who haven't severed and amended.

On Oct. 7 he will dismiss about 1,500 plaintiffs pursuing roughly 50,000 claims, if they don't show up with reasons to keep going.

As the asbestos glacier thaws, Robreno turns up the heat.

His Sept. 3 order not only scorns mass screenings but also seeks solid science behind claims that didn't start at mass screenings.

Each plaintiff must submit a medical report or opinion, Robreno wrote, and it must have enough weight to withstand a motion that would dispose of it.

Each report must set out the objective and subjective data on which it is based.

Robreno also wants to know if plaintiffs have pursued other asbestos claims.

Plaintiffs must identify each prior or pending claim, the parties involved, and the result.

"Each plaintiff shall identify each and every prior or pending court or administrative action brought with the intent of satisfying in whole or in part, the damages sustained by the plaintiffs' alleged asbestos related personal injury," he wrote.

Robreno also expects each plaintiff to identify each defendant that has resolved a claim by settlement or agreement to dismiss.

If no judge has entered an order of dismissal, the plaintiff must submit a proposed order.

Next a plaintiff must identify each defendant he or she desires to dismiss, with or without prejudice.

A plaintiff may not simply abandon a claim. Robreno expects a reason for dismissing each defendant and a proposed order.

A plaintiff must identify each defendant in bankruptcy and submit an order transferring the claim to a bankruptcy docket Robreno created.

After those steps, nothing would remain in the main docket but valid claims against solvent defendants.

For those cases Robreno promises to step up the pace of settlement conferences.

"All parties shall submit to the court at the time of the first settlement conference in any case a short position paper stating their position relative to disease, exposure and damages," he wrote.

Where settlement fails, he wrote, he might refer a case to mediation or suggest remanding it to the district court where it started.

He ordered lead counsel on both sides to stop calling Intercon Inc., software designer for the court's database.

He wrote that communications with Intercon "are now inappropriate as the contract between the court and Intercon Inc. does not allow for payment of such services."

The firm of Motley Rice in Mt. Pleasant, S.C., leads the plaintiff team.

The firm of Forman, Perry, Watkins, Krutz and Tardy of Jackson, Miss., leads the defense team.

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