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In re Asbestos Products Liability Litigation

United States Court of Appeals, Third Circuit

May 31, 2013

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI) BARRY WRIGHT, Appellant in No. 12-2061 JOSEPH J. REPISCHAK, Appellant in No. 12-2063 NANCY BRIX, Individually and as Special Administrator of the Estate of Gerald Brix, deceased, Appellant in No. 12-2064 ANTHONY J. ARENDT, Appellant in No. 12-2065 LUELLEN DELLENBACH, individually and as Special Administrator for the Estate of Warren C. Hansen, deceased, Appellant in No. 12-2066 RONALD J. MICHELS, Appellant in No. 12-2067 VIRGINIA M. MORRIS, Individually and as Special Administrator of the Estate of Roy Morris, deceased, Appellant in No. 12-2068 TRACY BURZYNSKI, Individually and as Special Administrator of the Estate of Milo Burzynski, deceased, Appellant in No. 12-2069 RUSSELL V. OSTRAND, Appellant in No. 12-2070 MICHAEL R. DUFFEY, Individually and as Special Administrator of the Estate of Paul V. Duffey, deceased Appellant in No. 12-2071 ROGER ZERBEL, Appellant in No. 12-2072 KATHLEEN STAFFORD, Individually and as Special Administrator of the Estate of James J. Wilhelm, Deceased, Appellant in No. 12-3082

Argued April 3, 2013.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court Nos. 2-01-md-00875; 2-08-cv-9034; 2-09-cv-61032; 2-09-cv-61335; 2-09-cv-65679; 2-09-cv-91900; 2-10-cv-62038; 2-10-cv-62047; 2-10-cv-62062; 2-11-cv-62393; 2-11-cv-63493; 2-11-cv-63495; 2-11-cv-63506; 2-11-cv-63497) District Judges: Honorable Sean J. McLaughlin and Honorable Eduardo C. Robreno.

Brian A. Schroeder, Esq. Michael P. Cascino, Esq. Robert G. McCoy, Esq. Argued Cascino Vaughn Law Offices, Counsel for Appellants.

Ashley E. Calhoun, Esq. Daniel J. Mulholland, Esq. Argued John M. Seebohm, Esq. David M. Setter, Esq. Forman, Perry, Watkins, Krutz & Tarsy, Counsel for Appellees Atlantic Richfield Company; CBS Corporation, a Delaware Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; General Electric Company; Georgia-Pacific LLC; Ingersoll Rand Company; Owens-Illinois, Inc. d/b/a O-I; Trane U.S. Inc., f/k/a American Standard, Inc.; and Union Carbide Corporation

Eric D. Carlson, Esq. Samuel C. Hall, Jr., Esq. Crivello Carlson, S.C., Counsel for Appellees Albany International Corporation; Mount Vernon Mills Incorporated; Albany Felt Company, Durox Company; Koppers Incorporated; Rogers Corporation; Sprinkmann Sons Corporation; West Bend Company; Wisconsin Electric Power Company; Brake Supply Company Incorporated; and Graybar Electric Company

Syed D. Ali, Esq. Michael J. Zukowski, Esq. K&L Gates, LLP K&L Gates Center, Counsel for Appellees Crane Company; Schneider Engineering Services, as successor to Square D Company; and Schneider Electric SA

Gregory M. McNamee, Esq, Emily C. Zapotocny, Esq. Segal, McCambridge, Singer & Mahoney, Counsel for Appellees Durametallic Corporation; DAP Incorporated; Zurn Industries, LLC; and Gardner Denver, Incorporated

Kathryn R. Downey, Esq. Thomas A. Gilligan, Jr. Esq. C. Todd Koebele, Esq. Murnane Brandt, Counsel for Appellees Bechtel Corporation; Bechtel Construction Company; and Cornell Pump Company.

Craig L. Unrath, Esq. Heyl Royster Voelker & Allen, Counsel for Appellees Air & Liquid Systems Corporation as successor by merger to Buffalo Pumps; Parker Hannifin Corporation; and Union Carbide Corporation

Brady L. Green, Esq. Douglas J. Gush, Esq. Morgan, Lewis & Bockius, Counsel for Appellee Elliott Company individually and as successor to Elliot Turbomachniery Company.

Nancy G. Lischer, Esq. Hinshaw & Culbertson Counsel for Airgas Merchant Gases LLC as successor in interest to AGA Gas, Inc.

Edward F. Houff, Esq. Clare M. Maisano, Esq. Evert, Weathersby & Houff, Counsel for Appellees LINDE LLC, sued as Linde Inc., f/k/a The BOC Group and/or Airco; The Lincoln Electric Company; and Hobart Brothers Company

Jerome D. Feriancek, Esq. Thibodeau, Johnson & Feriancek, PLLP Counsel for Appellee Honeywell lnternational, lnc. and Pneumo Abex, LLC, successor in interest to Abex Corporation

Steven L. Parrott, Esq. Dehay & Elliston, LLP, Counsel for Pneumo Abex, LLC.

Thomas M. Stieber, Esq. Foley & Mansfield, Counsel for Appellee Plastics Engineering Company.

John A. Fonstad, Esq. Carter G. Phillips, Esq. Sidley Austin LLP, Counsel for Appellee General Electric Company

David L. Kelleher, Esq. Jackson & Campbell, P.C. Counsel for Appellee Metso Paper, USA Inc.

Before: SCIRICA, RENDELL and VANASKIE.

OPINION

RENDELL, Circuit Judge:

This appeal comes to us from Multidistrict Litigation case number 875 ("MDL 875"), otherwise known as the "Asbestos MDL, " involving asbestos cases from around the country, pending before Judge Robreno in the United States District Court for the Eastern District of Pennsylvania. The District Court, overseeing several thousand asbestos cases, dismissed the claims of twelve Plaintiffs[1] pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based on non-compliance with the District Court's Administrative Order No. 12 ("AO 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 contend on appeal, as they did in the District Court, that AO 12 did not impose this requirement, and urge, alternatively, that even if it did, under a proper balancing of the factors we outlined in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863 (3d Cir. 1984), dismissal with prejudice was not warranted. For the reasons discussed below, we will affirm the District Court's dismissal of the twelve cases at issue.

I. Background

The present cases – as well as several thousand others – were transferred to the Eastern District of Pennsylvania in 1991 as a result of a centralization of all asbestos-related cases, as ordered by the Judicial Panel on Multidistrict Litigation. See In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. 415 (J.P.M.L. 1991). The Panel found that centralization would "best serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation." Id. at 417. MDL 875 once included more than 150, 000 plaintiffs and more than eight million claims. App. at 20. By the time Judge Robreno inherited the MDL in 2009, ...


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