Readers know that too often the necessary administrative procedures set in place in a mass tort are enforced on a one-way basis, costing defendants money and resources without requiring plaintiffs to comply with necessary discovery in a timely fashion. The Third Circuit recently affirmed a lower court decision to exclude from an MDL workers allegedly exposed to asbestos at work when these plaintiffs failed to provide full asbestos exposure histories. See In Re: Asbestos Products Liability Litigation (NO. VI), numbers 12-2061-12-2072 (3d Cir. 2013).
MDL 875 once included more than 150,000 plaintiffs and more than eight million claims. By the time Judge Robreno inherited the MDL in 2009, thousands of cases had been settled or otherwise resolved. Judge Robreno has been overseeing the progress and resolution of the remaining cases since then. In the asbestos MDL No. 875, the court had issued Administrative Order 12, which required plaintiffs to submit medical diagnoses or expert opinions based on certain data, interpreted to include exposure history. The order was issued in 2007 and was intended to accelerate the handling of the significant numbers of cases in this MDL by screening out cases in which causation cannot be demonstrated, and to avoid unnecessary burdens on defendants by requiring plaintiffs to provide certain medical and exposure information at the outset of the case.
The district court dismissed several cases in 2012, holding that the plaintiffs' submissions regarding their alleged medical conditions did not meet Administrative Order 12. Specifically, Judge Robreno determined that the Plaintiffs' submissions were fatally flawed in that they failed to include specific histories of Plaintiffs' exposure to asbestos. Plaintiffs' counsel disputed that interpretation of the order as requiring a complete occupational history of asbestos exposure, and offered simply a diagnosis of an asbestos-related disease. At no point did Plaintiffs offer supplemental AO 12 submissions with more complete exposure histories.
The Third Circuit agreed that the language of AO 12 is broad, but saw no reason not to defer to the District Court's interpretation of AO 12 that requires plaintiffs' submissions to include asbestos exposure history. Based on the language in AO 12 that requires plaintiffs to submit medical diagnoses or opinions based on objective and subjective data, as well as based on statements from reputable medical organizations that emphasize the importance of exposure history, the District Court interpreted AO 12 submissions to include exposure history. And it was not an abuse of discretion – especially given the District Court's experience overseeing the MDL proceedings – to require a complete occupational and environmental exposure history.