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 meso 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 remains untouched.

How a meso 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 meso 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 meso 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 44,273 cases.

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. Meso lawyers shudder at federal courts because of the MDL graveyard, not because of the procedural law, jury pool, or bench.

Judicial solution

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 meso 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 meso 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 meso 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 meso patients whose claims are languishing in the federal black hole continue to be denied the right to have their case brought before a jury.

Legislative solution

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 meso 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.

*** POSTED MAY 2, 2008 ***