Heather Isringhausen Gvillo Dec. 11, 2014, 12:46pm

PHILADELPHIA (Legal Newsline) – Several asbestos defendants in the asbestos multidistrict litigation court are opposing Judge Eduardo Robreno’s recent suggestion to remand cases back to their transferor courts without severing punitive damages requests.

According to the Nov. 24 suggestion of remand in the U.S. District Court for the Eastern District of Pennsylvania, Robreno suggested sending several maritime asbestos cases back to the Northern District of Ohio.

These cases stand out from the numerous other cases previously remanded form the asbestos MDL court because this is the first time punitive damages have been remanded along with the asbestos action.

On Nov. 12, Robreno asked the plaintiffs to show cause why the court should discontinue its practice of severing claims for punitive damages and retaining these claims in the MDL court.

The defendants responded by filing their own oppositions to the suggestion.

“The MDL court acted to ensure the fair and equitable treatment of future claimants, securing the Judicial Panel on Multidistrict Litigation’s authorization to sever punitive damages claims, and to retain jurisdiction over those claims even after associated compensatory damages claims had ben remanded to a transferor court for trial,” defendant CBS Corporation stated in its Nov. 25 opposition.

Defendant John Crane, Inc., or JCI, filed its opposition on Nov. 26 arguing that the court should continue its practice of severing and deferring plaintiffs’ punitive damages claims.

General Electric Company agreed in its Nov. 25 opposition that the court’s longstanding practice of severing punitive damages has “aided the court in the timely in the timely and efficient disposition of a massive volume of cases.”

“The court’s practice of retaining punitive damages claims does not reflect a lack of trust in transferor courts, but rather important public policy consideration that this court, due to its unique vantage point, is best-situated to safeguard,” GE stated.

JCI explains that in 1991, former Judge Charles Weiner, who was managing the docket at the time, chose to sever and retain jurisdiction over punitive damages claims while allowing liability and compensatory damages claims to proceed to trial.

The Third Circuit agreed with this move, saying that “the sick and dying, their widow and survivors should have their claims addressed first.”

JCI claims severance and deferral of punitive damages aids in conserving the “limited” funds of money available to compensate future claimants.

 “Plaintiffs and defendants agree that asbestos litigation remains a zero sum game – money spent on one claimant today may not be available for another claimant tomorrow,” JCI states. “The prejudice to future asbestos claimants if punitive damages claims are allowed, is, therefore, palpable.”

CBS Corporation added that experience shows that “even separate and apart from the question of punitive damages, today’s asbestos litigation does not tend to closely correlate liability and culpability, causing a disproportionate drain of valuable assets which might otherwise be available to compensate future claimants.”

“In short, this court’s use of a procedure resting squarely within its discretion to protect future claimants is not improper ‘judicial activism,’ but its failure to do so would amount to a destructive form of ‘judicial paralysis,’ threatening MDL’s hard-won legacy of ‘responsible public policy,” it added.

JCI also argues that plaintiffs will not be prejudiced if the court continues to defer punitive damages claims, because they cannot be prejudiced by being deprived of something that they have no right to recover.

“Plaintiffs’ argument that continued severance and deferral of punitive damages claims somehow denies them a vested right to such damages is fundamentally flawed and should be rejected,” JCI states.

Furthermore, JCI argues that punitive damages claims will only lead to longer, more expensive trials.

“The mere possibility of an award of punitive damages increases the time and money spent on pre-trial, trial and post-trial proceedings,” JCI stated.

When punitive damages are requested, JCI argues that defendants will pursue additional depositions and discovery/document requests, leading in longer trials as each party addresses allegations of willful and wanton misconduct.

Furthermore, punitive damages claims will not encourage settlements.

“Because the settlement value of a case often increases when punitive damages are at risk, plaintiffs will immediately raise their settlement demands regardless of the merit of his or her claim,” JCI asserts.

The defendants also argue that the two goals of punitive damages – punishment and deterrence – cannot be served in asbestos cases, because “in almost every case, the asbestos exposures that plaintiffs allege caused their disease occurred decades ago,” JCI stated.

“Awarding punitive damages now will not further discourage similar conduct in the future,” it added.

CBS explained that because asbestos products are no longer manufactured, there is no current or future conduct that could be deterred by punitive damages in today’s asbestos litigation.

It added that punitive damages claims pose a “multiple punishments problem,” as a single defendant could be required to pay multiple punitive damages awards in order to punish the same “long-past” conduct.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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