In Re: Joann Patenaude

• Decision Date: 11 April 2000
• Docket Number: No. 99-1540,99-1540
• Citation: 210 F.3d 135
• Parties: (3rd Cir. 2000) IN RE: JOANN PATENAUDE, et al.Petitioners
• Court: U.S. Court of Appeals — Third Circuit

Page 135

210 F.3d 135 (3rd Cir. 2000)

IN RE: JOANN PATENAUDE, et al.Petitioners

No. 99-1540

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued January 28, 2000

Opinion Filed April 11, 2000

On Petition for Writ of Mandamus from Order Denying Motion to Remand of the Judicial Panel on Multidistrict Litigation (Related to D.C. No. MDL 875)

[Copyrighted Material Omitted]

Steven R. Baughman (Argued) Baron & Budd 3102 Oak Lawn Avenue The Centrum, Suite 1100 Dallas, TX 75219 and Jeffrey S. Mutnick Landye, Bennett, Blumstein 3500 Wells Fargo Center 1300 S.W. Fifth Avenue Portland, OR 97201 Attorneys for Petitioners

R. Cornelius Danaher, Jr. Danaher, Tedford, Lagnese & Neal 21 Oak Street Suite 700, Capitol Place Hartford, CT 06016 and James J. Restivo, Jr. Reed, Smith, Shaw & McClay 435 Sixth Avenue Pittsburgh, PA 15219-1886 and Andrew J. Trevelise Reed, Smith, Shaw & McClay 1650 Market Street 2500 One Liberty Place Philadelphia, PA 19103-7301 Attorneys for Respondent Pittsburgh Corning Corporation

Elizabeth R. Geise (Argued) John D. Aldock Shea & Gardner 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036-1872 Attorneys for Respondents Armstrong World Ind., Asbestos Claims Mgt., Flexitallic Inc., Gaf Corp., Pfizer Inc., T&N PLC, US Gypsum Co.

Robert H. Riley (Argued) Schiff, Hardin & Waite 6600 Sears Tower Chicago, IL 60606 Attorney for Respondent Owens Illinois, Inc.

BEFORE: GREENBERG, ROTH and STAPLETON, Circuit Judges

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioners are three groups of plaintiffs seeking damages for personal injury and wrongful death as a result of exposure to asbestos. Respondents are some of the defendants in some of the cases brought by the plaintiffs. The plaintiffs' claims were initially filed in the Northern District of New York (the "New York plaintiffs"), the Northern District of Georgia (the "Georgia plaintiffs") and the District of Oregon (the "Oregon plaintiffs"). Pursuant to 28 U.S.C. § 1407(a), the plaintiffs' claims were transferred by the Judicial Panel on Multidristict Litigation (JPML) to Multidristict Litigation No. 875 ("MDL No. 875"), which is pending in the United States District Court for the Eastern District of Pennsylvania (the "transferee court").

At various times during the past seven years, some of the Oregon plaintiffs have filed motions for suggestion of remand with the transferee court. The last such motion was filed in May 1997. Receiving no response, in May 1998 counsel for the Oregon plaintiffs appeared before the JPML to seek remand. On May 20, 1998, the JPML denied the Oregon plaintiffs' motion to remand.

Some, but not all, of the New York plaintiffs filed motions for a suggestion of remand with the transferee court in March 1998. By October 1998, the transferee court still had not acted on the motions, and ten of the New York plaintiffs filed a motion for remand with the JPML. In December, the New York plaintiffs filed a motion to clarify explaining that the prior motion to remand sought remand of all claims of all the New York plaintiffs, and not just the ten who had originally filed.

Some, but not all, of the Georgia plaintiffs filed motions for a suggestion of remand with the transferee court in April and May of 1998. In September 1998, the transferee court still had not acted on the motions for suggestion of remand, and all of the Georgia plaintiffs filed a motion for remand with the JPML. On February 5, 1999, the JPML denied the New York and Georgia plaintiffs' motions for remand.

On June 29, 1999, all of the plaintiffs filed a petition for writ of mandamus asking this Court to order the JPML to remand their cases. We will deny the petition.

The parties have submitted affidavits that establish the following undisputed facts. The New York and Georgia plaintiffs' injuries range from the invariably fatal cancer mesothelioma, for which asbestos exposure is the only known cause, to pleural disease, a non-malignant scarring of the lining of the lung. Many have died from asbestos related injuries, a good number of them during the pendency of MDL 875. The Oregon plaintiffs' injuries include malignancies and non-malignancies.

Following the creation of MDL 875, plaintiffs' and defendants' steering committees were organized that attempted to negotiate a global settlement of all asbestos claims. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 599-600 (1997). These negotiations, however, eventually "fell apart." Id. at 600. The Plaintiffs' Steering Committee (PSC) has not met since 1993, and has been completely inactive.¹ Subsequently, twenty defendants and certain former members of the PSC proposed the settlement class action that was at issue in Amchem. See id. at 600-01. The Supreme Court, however, rejected the class certification "[g]iven the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions." Id. at 624.

The affidavits assert that during the seven year pendency of MDL 875, "no common or global discovery has been sought or conducted by either Plaintiffs or Defendants in this action, and no common questions of law or fact have been the subject of global resolution by [the transferee] Court." (A. 16-17). Since 1991, all discovery, settlement or other litigation activity in MDL 875 has related either to the Amchem class action or to individual claims or groups of claims. In the past two years, the transferee court has overseen broad discovery regarding litigation screening companies, the physicians they employ, and the nature of their contracts with plaintiffs' firms.

Since the creation of MDL 875, the New York and Georgia plaintiffs have supplemented their answers to discovery on several occasions including as recently as April 1998, when they provided "updated information regarding their work history and exposures to Defendants' asbestos-containing products, and any new information regarding their medical status."² (A. 61). Their claims have also "been the subject of numerous settlement conferences conducted by the transferee court." (A. 61). Counsel for the New York and Georgia plaintiffs have submitted sworn affidavits stating that "with the exception of settlements of some plaintiffs' cases with some defendants, the settlement discussions have not resolved the cases." (A. 61). They further state that "in many instances, Defendants have failed to generate any monetary offer to settle Plaintiffs' cases; and in remaining cases, the Defendants have failed to offer settlement amounts that approach historical settlement values for similar claims." (A. 61).

Summaries of the New York docket sheets, however, reflect that individual plaintiffs have settled with anywhere from one to eleven defendants for amounts ranging from $3,500 to $739,136. The plaintiffs respond with an affidavit explaining that these settlement figures are inaccurate, in that they reflect gross amounts of settlement with the Johns Manville bankruptcy trust, even though plaintiffs will receive only ten per cent of that money, and in that they occasionally reflect double counting of settlements. The plaintiffs do not provide settlement information of their own, however, and, even accounting for these inaccuracies, the number and amount of settlements have in many cases been substantial. Moreover, other additional settlements may well have been signed, as the docket summaries show significant delays (in some cases, five years) between settlements being signed and their being entered on the docket. See also In re Asbestos Prods. Liab. Litig., 1996 U.S. Dist. LEXIS 13850, at *3 (E.D. Pa. Sept. 16, 1996) (of the 22,000 open cases on the docket in 1996, thousands were resolved but not yet dismissed and statistically removed). The New York docket summaries show that in each of the New York plaintiffs' cases, anywhere from two to eighteen defendants remain, with the average number being approximately eleven.

Neither party has provided information regarding the settlement status of the Georgia or Oregon plaintiffs' individual claims. The plaintiffs do indicate that the Georgia docket sheets show between one and five defendants remaining on each individual claim. Also, counsel for the Oregon plaintiffs indicates that prior to the establishment of MDL 875 the average length of time for resolution of an Oregon case was less than one year, whereas in MDL 875 the average exceeds five years. Although settlement conferences were held regarding the Oregon cases in 1995, 1996 and either 1998 or 1999, plaintiffs' efforts at settlement have been "to little avail." (A. 115-16).

The transferee court has stated, although not in the context of the plaintiffs' particular claims, that among its "overriding objectives" "[t]hroughout the course of the multidristict litigation" is the court's "considered judicial opinion that the sick and dying, their widows and survivors should have their claims addressed first." Carlough v. Amchem, No. 93-215, at 8 (E.D. Pa. Apr. 15, 1993) (Mem. Op.). The court explained that it "steadfastly resisted motions to remand cases back to transferor courts unless the claimant was seriously ill or dying and all avenues of settlement were exhausted."³Id. The court has also "advised counsel that motions to remand involving other circumstances would only serve to deplete resources otherwise available for settlements and thus would be routinely denied." Id.

The transferee court's Administrative Order No. 3, which relates to all asbestos actions, reflects this policy. This Order establishes that in attempting to resolve cases through negotiation, cases of mesothelioma and lung cancer with asbestosis will be "address[ed] . . . on a priority basis." (A. 47-48). However, the court cautioned that "special efforts to resolve hardship cases are not a substitute for broad-based negotiations designed to reduce docket the [sic] backlog." (A. 47)....