THE LATEST DEVELOPMENTS IN MDL 875: A PRACTITIONER S EXPERIENCE

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1 THE LATEST DEVELOPMENTS IN MDL 875: A PRACTITIONER S EXPERIENCE Janet Ward Black, Esq. M. David Rhodes, Esq. Ward Black Law 208 West Wendover Avenue Greensboro, NC jwblack@wardblacklaw.com drhodes@wardblacklaw.com The Asbestos Product Liability Litigation MDL (MDL 875) has been an ongoing multidistrict litigation action since July 29, In 2008 the Honorable Eduardo C. Robreno was named presiding judge for MDL 875. Since that time there has been a significant increase in the level of activity in MDL 875. That activity has helped to identify what viable claims remain and to set settlement conferences and/or discovery schedules for those claims. Judge Robreno s revised Administrative Order No. 12 and Administrative Order No have been central to the increased activity in MDL 875. Judge Robreno s revised Administrative Order No. 12 and subsequent orders 2 built on a foundation put in place by the Honorable James T. Giles. Administrative Order No. 12 requires plaintiffs to submit to the Court a report that includes: a) the plaintiff s identifying information; b) a listing of any related court actions; 1 Attachment A and Attachment B 2 All Administrative Orders may be found at Parties with cases pending in MDL 875 are urged to read all administrative orders with care, particularly Administrative Order No. 11 and following.

2 c) a submission of the case status (a listing of each resolved claim, a listing of each claim against a bankrupt defendant, a listing of each claim that the plaintiff wishes dismissed and a listing of each claim remaining against a viable defendant); and, d) the medical reports on which the plaintiff now relies to prosecute his/her claim so as to withstand a dispositive motion. Administrative Order No. 12 incorporated dates by which the required disclosures must be made for cases pending in MDL 875. The Court noted that pursuant to F.R.C.P. 41(b) it could dismiss the case of any plaintiff who failed to comply with the requirements of Administrative Order No. 12. Initially, Administrative Order No. 12 required the plaintiffs to make paper submissions. Administrative Order No. 12 was subsequently amended and Administrative Order No was filed. Now the required information must be entered into an online database found at Administrative Order No was entered to fund the costs associated with Administrative Order No. 12 and plaintiff s counsel is required to contribute one dollar ($1.00) for each plaintiff who makes a submission under Administrative Order No. 12, paragraph 4. Defendants are also required to contribute one dollar ($1.00) for each plaintiff in whose case it is designated a non-bankrupt and viable defendant. Following the Administrative Order No. 12 deadlines, many defendants filed motions requesting the Court to issue orders requiring the plaintiffs to show cause why plaintiffs cases should not be dismissed for failure to comply with Administrative Order No. 12 s requirements. The result of these motions was that the Court held hearings organized by state of filing to consider the motions of the defendants. For many 3 Attachment C 4 Attachment D

3 plaintiffs, the only claims remaining were claims that were previously resolved and thus the claims were appropriately dismissed. Many more plaintiffs had remaining claims only against bankrupt defendants and those cases have been transferred to an inactive bankrupt only docket. When the plaintiffs have made the required Administrative Order No. 12 submissions and adequately responded to the defendants motions requesting the Court to issue an order to show cause, the Court has shown that it will work actively to ensure that cases are prepared for trial and positioned for remand. As a result of Administrative Order No. 12 and the motions related to that Order, the number of cases in MDL 875 is greatly reduced. The irony of the defendants motions is that if a defendant did not file a motion requesting the Court to enter an order to show cause why a case should not be dismissed, that case may still be languishing in MDL 875 without a discovery scheduling order. If a plaintiff wishes to obtain a discovery scheduling order for such cases, the plaintiff may contact the Court and inquire when a discovery scheduling order for the case may be put in place. Judge Robreno has enlisted the help of several magistrate judges to assist him with settlement conferences, discovery scheduling and discovery supervision. If the plaintiffs complied with Administrative Order No. 12, Judge Robreno has, in some instances, transferred the cases to a magistrate judge to oversee pretrial discovery and settlement conferences. 5 The orders transferring a case to a magistrate judge have required the plaintiffs to identify for the magistrate judge all remaining viable defendants in each case along with the contact information for the counsel of record. The transfer orders also require the plaintiffs to provide to the viable defendants a copy of the 5 Attachment E

4 plaintiff s most current medical report relied upon and a synopsis of the exposure evidence against each defendant. The transfer orders state that the parties shall exchange information and complete such discovery as is necessary to be in a posture to negotiate settlement and they further state that (a)ll unresolved discovery issues shall be brought to the attention of the Magistrate Judge within twenty (20) days of this order, or immediately as such issue may arise in the future. However, at least one magistrate judge has interpreted this order as not permitting a party to serve formal discovery on the opposing party prior to a Rule 26 (f) conference, citing F.R.C.P. 26(d)(1). Once cases have been transferred to a magistrate judge, the magistrate judge may enter an order requiring the parties to participate in a settlement conference. 6 The parties are required to provide to the magistrate judge position papers prior to the conference. The position papers briefly detail the status of the litigation and the parties positions. The magistrate judges have been present at the settlement conferences and have actively assisted with settlement discussions. If the parties fail to resolve their issues at a settlement conference the magistrate judges have moved quickly to initiate formal discovery. Within approximately one to two months of the settlement conference, the magistrate judge can be expected to require the parties to participate in a Rule 26(f) conference and to submit to the Court a proposed discovery plan. 7 The Court has provided a discovery plan template available at Attachment F 7 Attachment G 8 Attachment H

5 The magistrate judges have allowed some modification to the proposed discovery plan 9 but they have not, to our knowledge, permitted the discovery deadlines to be extended much beyond those contemplated by the proposed discovery plan. They have permitted the parties to agree to shorter deadlines than the proposed discovery plan. As a result, fact discovery in cases generally must be completed within 120 days of the discovery initiation date. At least one magistrate judge has adopted standard interrogatories and requests for the production of documents to which the plaintiffs must respond 10, a standard set of authorizations that must be executed by the plaintiffs 11 and standard interrogatories and requests for the production of documents to which the defendants must respond. 12 At least one magistrate judge has not required the plaintiffs to provide the defendants with copies of documents related to filings with bankrupt companies because of the law of the transferor jurisdiction, but another magistrate judge decided to the contrary for another jurisdiction. 13 Pursuant to the standard discovery deadlines, the plaintiffs must provide expert reports to the defendants within 150 days of the discovery initiation date; defendants must provide their expert reports to the plaintiffs within 180 days of the discovery initiation date and dispositive motions are due within 210 days of the discovery initiation date. Responses to dispositive motions are due within 240 days of the discovery initiation date and replies to those responses are due within 255 days of the discovery 9 Attachment I 10 Attachment J 11 Attachment K 12 Attachment L 13 Attachment M. But see Lyman v. Union Carbide, 2:01-md ER, document number 6695.

6 initiation date. If a case survives dispositive motions, the court has indicated that it will permit the parties to agree to a trial in the Eastern District of Pennsylvania or the parties may request a remand of the case to the transferor court. 14 So. It is a new day in the land of MDL 875. The once obese and somnambulant giant is now in what could be called a courthouse version of the popular TV reality show, The Biggest Loser. No longer characterized as the black hole, MDL 875 is alive, well and getting stronger, smaller and more streamlined by the day. 14 See Attachment I

Heckel, Brian v. 3M Company et al Doc. 24 Att. 1

Heckel, Brian v. 3M Company et al Doc. 24 Att. 1 Case MDL No. 875 Document 9795-1 9789 Filed 10/24/14 11/03/14 Page 61 of of 15 10 Dockets.Justia.com Case MDL No. 875 Document 9795-1 9789 Filed 10/24/14