Judge Robreno: Cleaning up clogged asbestos MDL

Aricka Flowers Aug. 4, 2009, 7:38am




Dorigo Jones

Serving in the Eastern District of Pennsylvania, a federal judge is making a name for himself for his swift handling of a huge asbestos docket.

Judge Eduardo Robreno has resolved more than 500,000 claims in four months after ordering that each plaintiff state a specific claim against each company being sued.

Legal analysts say the order has made it difficult, if not impossible, for some plaintiffs to maintain their case.

"Half a million claims is a mind-boggling number and I think that is to the judge's credit because he is cracking down on lawsuit abuse," said Bob Dorigo Jones, spokesman for the Foundation for Fair Civil Justice.

"He is finding that not only are the cases being settled, but they are being withdrawn by the plaintiffs' lawyers who know that they can't defend lawsuits they filed in the first place. That's justice working as it should be because one judge basically stood up and decided to enforce the law."

Because asbestos is the longest-running mass tort litigation in the nation, some analysts say a dramatic overhaul was well overdue. According to one law professor, Robreno's order does that by that shifting the burden of proof to plaintiffs.

"I cannot understand how it is that when the levels of asbestos exposure have gone sharply down, yet the number of cases has gone sharply up," said Richard Epstein, a University of Chicago distinguished professor of law.

"If that's what the background norm is, than any judge who sets the presumption in favor of the plaintiff is setting it the wrong way. The information that you know at the global level is deeply suspicious of the claims and it ought to follow."

Epstein said some of the cases "just don't sound right," given their background information.

"And when Judge Robreno forces them to the evidence, most of them have just cut and run and abandoned the cases," he said.

"My guess is that's because they don't have any proof."

Asbestos reformer

Robreno joined the court in 1992 upon the nomination of President George H.W. Bush and the recommendation of Sen. Arlen Specter (D-PA).

He started his career in the U.S. Department of Justice's Antitrust Division in 1978 and was the first Cuban-American to be appointed a federal judge. Robreno oversees thousands of asbestos litigation pretrial proceedings from across the country appointed by the U.S. Judicial Panel of Multi District Litigation (MDL).

Some legal experts say Robreno's approach to handling asbestos claims could give the judge a reputation as a reformer.

"What Robreno is doing is a long overdue action to crack down on fraud in the system that has been costing taxpayers, job providers and consumers money for way too long," said Dorigo Jones.

But not everyone is convinced that Robreno's actions are an attack on plaintiff claims.

John E. Herrick, a lawyer with Motley Rice, LLC of Mt. Pleasant, S.C., who is also on the plaintiff's steering committee for the MDL, believes the judge's handling of claims is more of a clean up tactic as opposed to an attack on potential victims and their attorneys.

"What the court has really been interested in doing is cleaning up its docket," Herrick said. "For so many years the MDL was just a place where cases went to die and both sides of litigation called it the black hole. Cases went in and were basically on a suspense docket where nothing ever happened."

Herrick said the cases often had been resolved as to all defendants, but never got dismissed because there wasn't anything going on to prompt their dismissal.

"I think the purpose in the court doing this is to see how many cases are real and have plaintiffs that want to continue to pursue their claim," Herrick said.

Modeling Judge Jack

Judge Robreno's method of cleaning up the MDL's docket has spurred comparisons to the style of U.S. District Court Judge Janis Jack of Texas who handled silica mass tort litigation.

In 2005, Jack ruled that thousands of claims in a silicosis tort docket were based on false medical diagnoses and, in her 250-page opinion, the former nurse went so far as to suggest that they were "manufactured for money."

Jack's decision has spurred other judges to request that plaintiffs' attorneys hand over detailed reports on medical information on their client's claims.

This sort of thorough evaluation of each claim has drawn parallels between Judges Jack and Robreno. But, as one law professor points out, it is important to understand how many plaintiffs are really reflected in the half a million cases that Robreno resolved in such a short amount of time.

"Judge Robreno has dismissed 500,000 claims but you have to understand what that means," said Lester Brickman, law professor at the Benjamin N. Cardozo School of Law of Yeshiva University in New York and expert on mass torts.

"If you have a single plaintiff suing 20 companies, that's 20 claims. So the actual number of plaintiffs who were dismissed and added up to the 500,000 claims is probably about 40,000; not half a million."

Brickman said the key to Robreno's cleanup strategy lies in his call for an Administrative Order Number 12, or AO12. This move essentially called for the severing of lawsuits; making it more difficult for some plaintiffs to go forward with their cases.

"Judge Robreno called for an administrative order 12, which requires the plaintiffs to produce basic information about each of their claims or dismiss the case," said Brickman.

He said that most of the 500,000 claims that have been settled by Robreno were dismissed because the lawyers could not comply with AO12.

"When these claims were dismissed they were usually done by agreement between the plaintiff's lawyer and the defendant," he said. "So the word 'settlement' is misleading, the bottom line is these were dismissed because they could not comply with AO12."

In addition to the AO12, Brickman believes there is one additional catalyst to the abandonment of thousands of claims. He said the need to protect the reputation of certain medical experts that commonly testify in asbestos cases often trumps the importance of an individual case; thereby adding to the steep drop in claims.

"Rather than run the risk of affecting thousands of claims the physician may be linked to in bankruptcy trust, every time that the defendants challenge the reliability of the diagnosing doctor in a specific case, the plaintiffs' lawyers are automatically dismissing those cases," said Brickman. "So those are also part of the 500,000 that were dismissed. That is how this is playing out, no money is being exchanged."

Clearing the deck

Although legal experts may not agree on whether Robreno's strategy favors plaintiffs or defendants, the one thing all parties can agree on is how quickly it will clear the packed docket.

"We really applaud the fact that Judge Robreno is doing something because that really hadn't gone on before," Herrick said. "He has a philosophy that every case ought to be moving towards resolution. To that end, he has gone to great lengths to basically make sure that every case in the MDL will be subject to a scheduling order by the end of the year."

Once the remaining claims are scheduled, the courts will have a clearer picture on how many claims will be heard. But when it comes to determining how many asbestos claims in the docket are truly valid, Brickman said, that will take much more time.

"Four to eight months from now, we will see how many cases complied with AO12 and had no effective challenge to the medical diagnosis," Brickman said.

"At that point, the defendants will look behind the curtain to see if the information supplied to meet the AO12 requirement is in fact valid. Right now, it's simply a matter of do you have the AO12 information or not; if not, go away.

Brickman said that at some point defendants will look at the data in the claims and maybe challenge the validity of the information.

"Judge Robreno is simply clearing the decks of cases that are insufficiently pleaded and making way for trials or settlements to take place," he said. "No matter how the remaining claims are resolved, Robreno is becoming known as reformer of sorts."

Epstein said the asbestos tort issue is a "very serious problem" and a "threat" to American business.

But Robreno, he said, is trying to distinguish between good and bad claims.

"When you are looking at these types of mass tort cases, the first thing that often comes to mind is mass fraud," he said.

"What makes it hard is that you don't want to get in a situation where the few legitimate claims under the current law are slumped in with the bad claims," Epstein said.

"But if you have to figure out what you'd rather do, which is to either let a good claim go or let in a few thousand bad ones in, it has to be letting the good claim go. If you can find a way to distinguish between the claims, then that's what you do; and that's what this judge is trying to do."

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