Various v. Various
278 F.R.D. 126
E.D. Pa.2011Background
- MDL 875 asbestos cases consolidated in ED Pa; Cascino Vaughan represents plaintiffs in ~2,000 cases; referrals to Judge Reed for mediation then to Judge Strawbridge for pretrial procedures; scheduling orders set deadlines for AO 12 submissions and IKON x-ray submissions; Defendants move to dismiss for noncompliance with deadlines under Rule 41(b); court applies Poulis factors and MDL management principles to sanction decisions; court distinguishes multiple subgroups of cases (x-ray to IKON, N&M x-rays, AO 12 submissions, exposure history, and impairment claims) and issues rulings accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to submit x-rays to IKON amid scheduling order | Plaintiffs submitted partial materials or plan extensions | Noncompliance prejudices defendants; no suitable alternative sanctions | Dismissal granted in part; some cases dismissed, some extended or denied extension |
| Motions to dismiss based on N&M x-ray submissions | X-rays timely submitted; authentication not proper ground for dismissal | N&M practices render x-rays unauthenticated | Dismissal granted for cases with unauthenticateable N&M x-rays |
| Failure to submit AO 12 report | Some AO 12 submissions were missed due to excusable neglect | Margin for error not permitted; need complete compliance | Dismissal with prejudice in four cases; others denied extension or granted partial relief |
| Adequacy of AO 12 exposure history in submissions | AO 12 submissions lacked exposure history but show other data | Exposure history required under AO 12; essential for eligibility | Dismissal in 19 cases for lack of exposure history |
| Affirmation of impairment requirement under AO 12 | Plaintiffs seek compensation for pleural changes under Illinois law | Pleural plaques/thickening not cognizable without impairment; Illinois trend disfavors compensability | Motions granted; cases lacking impairment dismissed without prejudice or with prejudice per exhibit lists |
Key Cases Cited
- Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912 (3d Cir.1992) (Poulis factors guide Rule 41(b) dismissals)
- Ware v. Rodale Press, Inc., 322 F.3d 218 (3d Cir.2003) (Court authority to manage multidistrict dockets)
- Briscoe v. Klaus, 538 F.3d 252 (3d Cir.2008) (No magic formula; scheduling orders must be followed)
- In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C.Cir.2009) (MDL management and sanctions in complex litigation)
- PPA Prods. Liab. Litig., 460 F.3d 1217 (9th Cir.2006) (Emergent considerations in multidistrict litigation)
- In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563 (S.D.Tex.2005) (N&M x-ray practices scrutinized; expert issues)