Asbestos MDL stops taking new cases in Philadelphia federal court; Robreno predicts Illinois SC will find pleural plaques non compensable

By Steve Korris | Dec 21, 2011


WASHINGTON - Asbestos litigation that stacked millions of flimsy claims in a single court and lasted 20 years died quietly on Dec. 13.

A panel of multi district litigation judges decided to stop transferring "tag along" cases from district courts to District Judge Eduardo Robreno of Philadelphia.

Robreno volunteered to shut down in short order in November, after presiding over resolution of more than 90 percent of a backlog he inherited in 2008.

Panel chairman John Heyburn wrote, "This litigation has presented huge challenges to all concerned."

He wrote that "continued transfer of asbestos personal injury and wrongful death actions to the MDL would no longer serve the purposes of our governing statute."

Heyburn wrote that almost all pending cases are proceeding toward adjudication, settlement, or remand by the end of next year.

He wrote that about 400 new asbestos cases are brought in federal courts per year.

He wrote that parties in new actions can avail themselves of MDL discovery, and judges will find guidance in MDL rulings.

Robreno had suggested Jan. 1 as the effective date for ending transfers, but the panel ended them effective immediately.

He retains jurisdiction over about 17,000 cases, not a tenth of his original docket.

With dozens of defendants in an average complaint, his original docket carried roughly eight million separate claims.

Robreno broke the logjam with dynamite, ordering plaintiffs to provide facts that their repetitive complaints seldom provided.

He required medical diagnosis reports, a detail his predecessors skipped for 17 years, and required specific allegations against each defendant.

Suits started vanishing by thousands a week, through settlement or abandonment.

This February, lawyer Daniel Wang of Baltimore foresaw the demise of the MDL on Law 360 website.

Wang wrote that "plaintiffs with claims without any medical basis have simply not been able to sustain their cases.

"No more can defendants rely on a transfer to the MDL docket to serve as a reprieve from litigating actions.

"At the same time, plaintiffs bringing asbestos related personal injury claims must do so in good faith, as they can no longer rely on mere allegations to file a claim."

Robreno hammered that point on Nov. 14, when he dismissed more than 70 cases of the Cascino Vaughan firm in Chicago.

The firm pursues about 2,000 cases, having settled about 3,000 since May 2009.

Robreno dismissed 38 because the firm hadn't sent X-rays to a private depository as a magistrate judge had ordered.

"Missing in plaintiffs' averments is any explanation why the order was not complied with, or why plaintiffs did not seek an extension of time to comply prior to the deadlines," he wrote.

"It is not clear that plaintiffs are even available now to prosecute these cases or that counsel has made any attempt to schedule a medical appointment for each plaintiff," he wrote.

Robreno dismissed nine plaintiffs with X-rays from N & M Inc., a defunct business that earned notoriety through mass screenings that led to mass diagnoses.

He wrote that doctors who wrote reports from X-rays of N & M can't authenticate the reports because they pleaded their right against self incrimination.

"In the absence of authentication, the reports are not valid," he wrote.

"That the practices of N & M have been questioned should not come as a surprise to learned counsel, experienced in asbestos litigation, who should have recognized these deficiencies and should have moved to obtain new reports long ago."

Robreno dismissed four cases that lacked evidence due to what Cascino Vaughan called excusable neglect.

He quoted their plea that, "With so many cases, it is virtually impossible to get 100 percent compliance."

"The court categorically rejects the proposition that, because counsel chose to represent a large number of plaintiffs in these cases, counsel is entitled to a margin of error in complying with the court's order," he wrote.

"The entry of appearance by counsel constitutes a representation that counsel is ready, willing and able to represent each party for whom counsel has entered an appearance fully and adequately.

"Each plaintiff and the court are entitled to no less."

He dismissed 19 for lack of exposure history.

He finished with a flourish, predicting the Illinois Supreme Court will rule that courts can't compensate pleural plaques and pleural thickening.

"The Supreme Court of Illinois has never squarely addressed this issue," he wrote.

Robreno wrote that in 2002, the Court found a plaintiff can obtain compensation for a future injury that is not reasonably certain to occur.

He wrote that the Court approved an instruction to jurors that they must find a breach of duty caused a present injury resulting in greater risk of future harm.

"In other words, a plaintiff must already have a present injury in order to recover for an increased risk of future harm," he wrote.

Robreno wrote that the Court restated the point in 2008, finding that while the increased risk of future harm is an element of damages, the risk itself is not a compensable injury.

He wrote that local practices in Madison and Cook counties indicate that pleural plaques and thickening, without symptoms, are not considered present injuries.

In Cook County, plaintiffs with no impairment are automatically placed on an inactive docket, he wrote.

In Madison County, they are placed on a deferred registry.

Robreno wrote that only if they develop symptoms do they return to the active docket.

"This deferral system was not unilaterally imposed by the court but was developed jointly by the plaintiff bar and the defense bar in Illinois," he wrote.

Robreno wrote that a Madison County order recognizes that a substantial number of claims involve plaintiffs who are not now physically impaired.

He quoted from the order that, "in many cases, the disease process will not progress to physical impairment."

"Therefore, many of the instant cases, had they remained in the Illinois state court system, would not have been able to proceed to the merits unless and until plaintiff developed symptoms of asbestos exposure beyond pleural plaques and pleural thickening," he wrote.

"The emerging trend in asbestos litigation around the country is not helpful to plaintiffs."

"All signs in this mature litigation point to the treatment of pleural plaques and pleural thickening as non compensable, unless and until plaintiffs exhibit physical impairments or malignancies."

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