JPML Adopts Suggestion to Cease Transfer of Future Asbestos Actions to MDL 875

The Judicial Panel on Multidistrict Litigation (“JPML”) has adopted and endorsed a Suggestion made by the federal asbestos MDL judge, Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania, to halt the transfer of future actions to the coordinated docket, MDL No. 875 (E.D. Pa.), based on his observation that a “limited number of jurisdictions are continuing to benefit from the transfer and consolidation of cases under MDL-875.” 

In a December 13, 2011, Order, the JPML announced that it will no longer transfer actions to MDL-875, except for those cases fitting the exceptions outlined by Judge Robreno.  The JPML reasoned, as Judge Robreno noted in his Suggestion, that “the backlog of cases in the MDL has been largely eliminated; almost all cases currently pending therein are proceeding under scheduling orders calling for their adjudication, settlement, or Section 1407 remand by December 31, 2012; and the current rate at which new asbestos-related cases are being brought in federal district courts stands at approximately 400 per year.”  Accordingly, “the continued transfer of asbestos personal injury and wrongful death actions to the MDL would no longer serve the purposes of our governing statute.  See 28 U.S.C. 1407(a) (“Such transfers shall be made by the [Panel]… upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.”).” 
 
In reaching this conclusion, the JPML recognized that “new asbestos actions are still being brought in federal courts on a regular basis, and that it is quite likely such filings will continue for some time.”  However, the parties involved in those new actions “should be able to avail themselves of the discovery already obtained in the MDL (subject, of course, to the same conditions, if any, imposed on parties in the MDL).  In addition, the judges presiding over those actions will almost certainly find useful guidance in the many substantive and thoughtful rulings that have been issued during the lengthy course of the multidistrict proceedings.”     
 
As suggested by Judge Robreno, the JPML specified that it should continue to transfer cases pending in certain districts, including the U.S. District Court for the Eastern District of Virginia.  In making his suggestion, Judge Robreno noted that over 4,500 cases pending in the Eastern District of Virginia involve a preemption issue concerning whether the claims of certain railroad-worker plaintiffs are preempted by the Locomotive Inspection Act, f/k/a the Boiler Inspection Act.  Those cases have been stayed pending a decision by the U.S. Supreme Court, which heard oral argument on November 9, 2011 (in Kurns v. Railroad Friction Products Corp., No. 10-879).

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