In a recent article, U.S. District Judge Eduardo C. Robreno offered a lengthy and scholarly review of his experience with MDL-875 and the history of the asbestos litigation in general in an article titled “The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?” 98 Widener Law Journal 97 (2013). He describes how “over 180,000 cases and more than 10 million claims” have been addressed over more than 20 years of litigation.
This judicial perspective on the evolution of the litigation is an interesting read and includes various observations of note, such as “the use of new asbestos in the United States essentially ceased in the early 1970’s.” The article touches upon a variety of subtopics within the broader topic, with some observations that will ring true with defense practitioners. These subtopics include tort reform, aging population and latency, litigation strategies, fraud (including some observations regarding U.S. District Judge Janis Graham Jack and screening doctors), and “peripheral defendants” (“Because these defendants could raise additional defenses, not otherwise available to manufacturers, merely naming them in a suit did not guarantee a plaintiff verdict or a prompt settlement”). In his discussion of bankruptcy trusts, Judge Robreno acknowledges the growing concern that the “potential for fraud and duplicate recovery for asbestos claimants may have risen.” He opines:
Recent cases in MDL-875 indicate that bankruptcy trust information that shows whether plaintiffs have made submissions to multiple trusts “is more analogous to a complaint than an offer of settlement or compromise” and is therefore subject to discovery
The article then reviews in detail the structure and operation of MDL-875, along with a plethora of substantive issues that the MDL has addressed. While Judge Robreno does not purport to set forth the law on these many issues, he does utilize massive footnotes with citations to all the controlling authorities that govern issues ranging from “Product Identification” to “Bare Metal Defense” to “Sham Affidavit Doctrine,” thus providing a handy road map for anyone wishing to ascertain the state of the law on these issues.
Judge Robreno reviews the success of MDL-875 in resolving a vast number of cases. “Since 2006, there have been 186,524 cases transferred to MDL-875.” Of those cases, 183,545 have been resolved, leaving 2,979 still on the MDL docket. He goes on to observe that the number of new cases brought nationwide in the federal courts stood at only approximately 400 per year. Clearly, from an administrative standpoint, this must be viewed as a tremendous success for MDL-875.
Several of Judge Robreno’s concluding observations may well resonate with defense practitioners.
“Here was the legal equivalent of a perfect storm: a single product, with pervasive use in the national economy which could potentially have caused harm to millions and went unregulated for at least fifty years.”
“Regardless of the amount of judicial effort and resources, unless the court establishes a toll gate at which entrance to the litigation is controlled, non-meritorious cases will clog the process. Therefore courts must establish procedures by which, at an early point, each plaintiff is required to provide facts which support the claim through expert diagnostics reports or risk dismissal of the case.”
“The consolidation or aggregation of large numbers of cases distorts the litigation and the settlement process. Aside from the significant due process issues raised by forcing parties to litigate or settle cases in groups, aggregation promotes the filing of cases of uncertain merit.”
“The court must provide timely legal guidance to the substantive and procedural issues by ruling and issuing opinions on matters before the court. This body of law provides counsel with a predictable path on which to formulate and execute their litigation strategy.”
Much has been learned over the years in dealing with the “perfect storm” of asbestos litigation. Hopefully we will never again encounter such a maelstrom. But if we do, the observations of Judge Robreno as expressed in this article may help us to more equitably and efficiently deal with the litigation.