Our mission is simple: we want our day in court for plaintiffs dying from
mesothelioma. Federal multi-district litigation docket 875 has obstructed
that end and requires reform. If the judicial panel that oversees MDL
875 refuses to fix the problem after appeals through the proper channels,
then we welcome the intervention of the US Senate to hold hearings and
pass legislation that will remedy this injustice.
Our firm reported in March 2007 that navy veterans suffering from painful, aggressive, and terminal mesothelioma
have had their day in court buried forever in the federal court responsible
for asbestos litigation. The infamous "black hole" multi-district
litigation docket to which these cases are removed continues to obstruct
the rights of mesothelioma plaintiffs to a speedy jury trial.
A star chamber for the 21st Century
MDL 875 is a holding tank that was created to resolve pre-trial issues
and questions of fact that are common to asbestos cases, settle the cases
if possible, then return the cases back to the originating federal court
for trial once the pretrial issues were resolved or when settlements could
not be reached.
The hope was that the One Big Federal Court Program would prevent each
district court in each major city from having to go through the lengthy,
repetitive process of answering the same pretrial questions over and over
and would provide a centralized court that could set up rules for settling
cases. It would allow defendants and plaintiffs to quickly get down to
the business resolving their case.
The judge presiding over the MDL was imbued with extraordinary powers to
influence settlements, resolve pretrial issues, and remand the case for trial.
The current presiding federal district judge, Judge James Giles of the
Eastern District of Pennsylvania, took over the multi-district asbestos
docket after the death of Judge Charles Weiner in 2005. Judge Weiner resolved
thousands of cases, yet thousands more remain holed up in the MDL. An
estimated 3,000 of those cases are by malignant mesothelioma plaintiffs,
in extremis claimants whose life expectancy is measured in weeks or months.
The key complaint from numerous plaintiffs is that Judge Weiner didn't
settle common questions and he didn't coordinate. He acted as a forced
arbitrator, letting plaintiffs know that they could either settle or see
their cases stuck in MDL forever. This gave defendants tremendous leverage,
especially with mesothelioma cases, because the single biggest tool for
justicea trial in front of a jurywas effectively taken away
from plaintiffs. Defendants responded with miniscule settlement offers,
or none at all.
The new MDL magistrate, Judge Giles, has signified that he will continue
what Judge Weiner began. His only forward movement on asbestos litigation
has been his attempt to dismiss thousands of asbestosis lawsuits that
defendants claim were diagnosed by fraudulent doctors. While stalwarts
in the pro-asbestos world such as the U.S. Chamber of Commerce have lauded
this move, the life-and-death issue of cases filed by mesothelioma victims
How a mesothelioma case gets stuck in the black hole
The MDL order does not contemplate that the MDL judge will hold onto cases
forever, without remanding them to federal district court for trial. Instead,
it creates a framework where a plaintiff files suit, the case is removed
to the MDL docket to resolve and coordinate common pretrial questions
of law, and then "remanded" back to district court so the trial
can proceed if a settlement cannot be reached.
MDL 875 proceedings include the development of cases for settlement, trial
or other disposition. They also include supervision of extensive discovery
concerning the ongoing flow of asbestos-related personal injury actions
in the courts. MDL activities also include prioritizing cases for resolution.
Although theoretically MDL 875 can remand cases for trial, in reality the
court has enforced a practice in which it will not remand a case until
"all avenues for settlement have been exhausted." This can take
years, and when the mesothelioma claimant dies, significant parts of his
compensation claim expire as well. Moreover, the MDL has a policy of severing
punitive damages from compensatory damages, which means that even when
cases are remanded, the most financially meaningful part of the claim
remains in perpetual MDL orbit. Even under the best circumstances, the
defendants get a windfall by never having to face punitive damages, which
translates as artificially lowered settlement offers.
By 2000, out of 66,000 cases only 1,000 ever qualified for remand. The
MDL's discretion on when pretrial issues had been resolved was so
great that mesothelioma cases rarely got back to federal court for trial.
Also by 2000, Judge Weiner had closed 44,723 cases in MDL 875, orchestrated
settlements for unfiled claims, and facilitated settlements in state court
jurisdictions at the request of state court judges. He is estimated to
have resolved or dismissed over four million claims comprised in those
This breakneck pace of efficiency with regard to nonmalignant claims sounds
great, but for terminal mesothelioma plaintiffs whose cases are never
completely resolved or who are forced to accept pennies on the dollar
because defendants know they'll never face a jury, the injustice has
been even greater.
Plaintiff's lawyers like federal court and their juries and would gladly
try cases there. There are many features of federal law that facilitate
the just disposition of personal injury claims, such as the 6-hour limitation
on depositions. Mesothelioma lawyers shudder at federal courts because
of the MDL graveyard, not because of the procedural law, jury pool, or bench.
Since a mesothelioma claimant's life span averages 6-18 months from
the time of diagnosis, there must be a mechanism to get their claims resolved
if they are to have any meaningful chance of receiving fair compensation
for having been poisoned. Justice delayed until after you've died
is justice denied. What's crucial is some change in the MDL process
to accommodate in extremis, dying mesothelioma victims, who are a small
percentage of the total docket.
Since the multidistrict litigation court is itself supervised by a panel
of federal judges, it made sense early on to seek their intervention to
unclog the backlog. The panel, however, refused to intervene, choosing
instead to stamp its approval on this miscarriage of justice.
Following the panel's ruling, Judge Weiner's policy of holding
mesothelioma cases hostage in the black hole was challenged in the 3rd
Circuit Court of Appeals. In April 2000 the appeals court upheld Judge
Weiner's approach and agreed with the asbestos companies when it noted
approvingly that the court had resolved a prodigious number of claims44,000
in the first six years alone. But there's a world of difference between
disposing of claims and sending them back to district court where they
can be tried. For mesothelioma victims, there's the added factor of
time. Even a month's delay can mean the difference between life and death.
And for all the claims of judicial efficiency, the court still has a backlog
of over 100,000 cases, and mesothelioma victims continue to die before
their cases are ever heard.
The 3rd Circuit, the supervising judicial panel, and the MDL court itself
have all made it clear that they will never release their grip on these
cases. Dying mesothelioma patients whose claims are languishing in the
federal black hole continue to be denied the right to have their case
brought before a jury.
The idea that legislators can put gentle pressure on the court to un-hitch
the most pressing mesothelioma cases from the black hole is unlikely to
succeed. Constitutionally, the court is insulated from congressional interference
and free to interpret the laws as it sees fit. Practically, with an estimated
3,000 mesothelioma cases locked up in the black hole, and each case potentially
worth several million dollars, a sudden release of these claims would
put huge financial pressure on the defendants who have successfully bottled
them up for so many years. It is inconceivable that these companies would
give in without a fight
In our democracy, that leaves one option: legislation. The section of the
U.S. Code that authorizes and regulates multi-district litigation already
has exemptions carved out for antitrust. Adding language that guarantees
in extremis plaintiffs, such as mesothelioma, lung cancer and advanced
asbestosis victims, the right to have their cases quickly addressed is
feasible, fair, and in line with pronouncements of the MDL court itself.
Justice delayed for a mesothelioma victim is no justice at all.
We encourage the U.S. Senate to hold hearings on this crucial issue so
that victims don't have to wait for the afterlife in order to get
what they deserve. We encourage victims and their families to write, and
call their U.S. Senator to urge that hearings be held on the asbestos
MDL. Asbestos defendants have all the time in the world. Asbestos victims do not.