In Re Asbestos Products Liability Litigation (No. VI)

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 12-2061, 12-2063, 12-2064, 12-2065, 12-2066, 12-2067,
12-2068, 12-2069, 12-2070, 12-2071, 12-2072, 12-3082
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
2
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
Argued April 3, 2013
(Filed: May 31, 2013)
Before: SCIRICA, RENDELL and VANASKIE
Brian A. Schroeder, Esq.
Michael P. Cascino, Esq.
Robert G. McCoy, Esq. Argued
Cascino Vaughn Law Offices
220 South Ashland Avenue
Chicago, IL 60607
Counsel for Appellants
3
Ashley E. Calhoun, Esq.
Daniel J. Mulholland, Esq. Argued
John M. Seebohm, Esq.
David M. Setter, Esq.
Forman, Perry, Watkins, Krutz & Tarsy
1775 Sherman Street
Suite 1900
Denver, CO 80203
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
4
Eric D. Carlson, Esq.
Samuel C. Hall, Jr., Esq.
Crivello Carlson, S.C.
710 North Plankinton Avenue
Suite 500
Milwaukee, WI 53202
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
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Appellees Crane Company;
Schneider Engineering Services, as successor to
Square D Company; and Schneider Electric SA
5
Gregory M. McNamee, Esq,
Emily C. Zapotocny, Esq.
Segal, McCambridge, Singer & Mahoney
233 South Wacker Drive
Sears Tower Suite 5500
Chicago, IL 60606
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
30 East 7th Street
Suite 3200
St. Paul, MN 55101
Counsel for Appellees Bechtel Corporation;
Bechtel Construction Company; and Cornell
Pump Company
6
Craig L. Unrath, Esq.
Heyl Royster Voelker & Allen
124 Southwest Adams Street
Suite 600, Chase Building
Peoria, IL 61602
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
1701 Market Street
Philadelphia, PA 19103
Counsel for Appellee Elliott Company
individually and as successor to Elliot
Turbomachniery Company
Nancy G. Lischer, Esq.
Hinshaw & Culbertson
222 North LaSalle Street
Suite 300
Chicago, IL 60601
Counsel for Airgas Merchant Gases LLC as
successor in interest to AGA Gas, Inc.
7
Edward F. Houff, Esq.
Clare M. Maisano, Esq.
Evert, Weathersby & Houff
120 East Baltimore Street
Suntrust Bank Building, Suite 1300
Baltimore, MD 21202
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
302 West Superior Street
Suite 800
Duluth, MN 55802
Counsel for Appellee Honeywell lnternational,
lnc. and Pneumo Abex, LLC, successor in
interest to Abex Corporation
Steven L. Parrott, Esq.
Dehay & Elliston, LLP
36 South Charles Street
Baltimore, MD 21201
Counsel for Pneumo Abex, LLC
8
Thomas M. Stieber, Esq.
Foley & Mansfield
250 Marquette Avenue
Suite 1200
Minneapolis, MN 55401
Counsel for Appellee Plastics Engineering
Company
John A. Fonstad, Esq.
Carter G. Phillips, Esq.
Sidley Austin LLP
1501 K Street, N.W.
Washington, DC 20005
Counsel for Appellee General Electric
Company
David L. Kelleher, Esq.
Jackson & Campbell, P.C.
1120 20th Street, NW
South Tower – Suite 3000
Washington, DC 20036
Counsel for Appellee Metso Paper, USA Inc.
9
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 Plaintiffs1 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
1
The twelve Plaintiffs involved in the present appeal are
represented by Cascino Vaughan Law Offices (“CVLO”),
who serve as counsel in approximately two thousand cases
still pending in MDL 875. App. at 19-20. The CVLO cases
represent the second largest land-based group of cases to
remain in the litigation. Id.10
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, thousands of cases had been
settled or otherwise resolved. Judge Robreno has been
diligently overseeing the progress and resolution of the
remaining cases since then.
To streamline the litigation of the thousands of cases in
MDL 875, the original AO 12 was issued in 2007 by then-
presiding District Judge Giles. Id. at 5-8. The purpose of AO
12, specifically, was to (1) assist the District Court in
managing the large number of cases and the complex issues
involved in the litigation; (2) to allow meritorious cases to
move to trial or settlement properly; and (3) to avoid
unnecessary burdens on defendants by requiring plaintiffs to
provide certain medical and exposure information at the
11
outset of the case. Id. at 41-42, n.2.2 Judge Robreno, with the
assistance of dedicated magistrate judges, has continued to
oversee discovery and pretrial procedures, allowing
meritorious claims to advance and weeding out unsupported
claims. See generally Mark A. Behrens, 26 T.M. Cooley L.
Rev 721, 747-55 (2009) (describing the progress in MDL 875
and Judge Robreno‟s efforts with respect to discovery, and
the dismissal of fraudulent claims, especially where there
were fabricated doctors‟ diagnoses).
A. AO 12
In September 2009, soon after MDL 875 was assigned
to him, Judge Robreno issued an amended AO 12. App. at
11-16. Amended AO 12 required plaintiffs to submit, inter
alia, medical reports “upon which the plaintiff now relies for
the prosecution of the claims as if to withstand a dispositive
motion.” Id. at 12-13. Specifically, Amended AO 12
required that:
Each plaintiff asserting a claim based upon an
alleged asbestos-related malignancy shall
submit to the court a copy of the medical
2
See also Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL
637507 (N.J. Super. Ct. Nov. 18, 1986) (entering a pretrial
order that required plaintiffs to provide facts in support of
their claims through expert reports or risk having their cases
dismissed); Acuna v. Brown & Root Inc., 200 F.3d 335, 340
(5th Cir. 2000) (noting that Lone Pine case management
orders “are designed to handle the complex issues and
potential burdens of defendants and the court in mass tort
litigation”).
12
diagnosing report or opinion upon which the
plaintiff now relies for the prosecution of the
claims as if to withstand a dispositive motion.
Each plaintiff asserting a claim based upon an
alleged non-malignant injury or condition shall
submit to the court a copy of the medical
diagnosing report or opinion upon which the
plaintiff now relies for the prosecution of the
claim as if to withstand a dispositive motion.
Each report or opinion submitted hereunder
shall be based upon objective and subjective
data which shall be identified and descriptively
set out within the report or opinion.
Id. at 13 (emphasis in original).3
Finally, Amended AO 12 (hereafter “AO 12”)
provided that “[t]he court may dismiss pursuant to F.R.C.P.
41(b) the cases of any plaintiffs who fail to comply with the
requirements set forth.” Id. at 14.
3
Some cases were supported only by medical diagnoses that
were the results of “mass screenings.” With respect to those
cases, AO 12 stated that “mass screenings create an inherent
suspicion as to their reliability,” and that “[t]his court will
therefore entertain motions and conduct such hearings as may
be necessary to resolve questions of evidentiary sufficiency in
non-malignant cases supported only by the results of mass
screenings which allegedly fail to comport with acceptable
screening standards.” App. at 14.
13
B. November 2011 Order
On November 14, 2011, Judge Robreno issued an
order dismissing forty-seven CVLO cases for failure to
comply with AO 12 (“November 2011 Order”). App. 19-39.
Of those cases dismissed, nineteen were dismissed for failure
to provide sufficient AO 12 reports with respect to exposure
history and twenty-four cases were dismissed for failure to
show an asbestos-related impairment. Id. at 29-39. In the
November 2011 Order, Judge Robreno referred to the six
Poulis factors that a court should consider before dismissing a
case pursuant to Rule 41(b). Id. at 21-22.
Although the plain language of AO 12 does not state
that plaintiffs must provide a complete exposure history, the
District Court based its dismissal of cases that failed to
include such information “on the language in AO 12 that
emphasizes that plaintiffs should submit medical diagnosis or
opinions based on medically accepted principles and
practices, and based on statements from reputable medical
organizations that require occupational and environmental
exposure history when screening for asbestos-related
diseases.” Id. at 33. Accordingly, the District Court required
AO 12 submissions to comply with “generally accepted
medical standards [that] call for information regarding
duration, intensity, time of onset, and setting of exposure to
asbestos.” Id. at 31 (internal quotation marks and citation
omitted).
14
Furthermore, the District Court interpreted AO 12 to
require “the medical evidence presented by Plaintiff [to]
contain a diagnosis of a symptomatic asbestos-related
disease.” Id. at 34. The District Court therefore dismissed
claims that were supported by AO 12 submissions that
included only diagnoses of pleural plaques and pleural
thickening. Id. at 34.
C. Rule 41(b) Motions to Dismiss and March
2012 Order
A series of Rule 41(b) motions to dismiss the cases
before us on appeal were filed between October 28, 2011 and
December 28, 2011, in which Defendants argued that –
considering the District Court‟s November 2011 Order – the
claims must be dismissed for failure to comply with AO 12.4
4
Rule 41(b) of the Federal Rules of Civil Procedure states
that:
[i]f the plaintiff fails to prosecute
or to comply with these rules or a
court order, a defendant may
move to dismiss the action or any
claim against it. Unless the
dismissal order states otherwise, a
dismissal under this subdivision . .
. operates as an adjudication on
the merits.
A Rule 41(b) dismissal may be entered sua sponte or on
motion of a party. Pickel v. United States, 746 F.2d 176, 182
15
Plaintiffs submitted briefs in opposition to Defendants‟
motions, arguing that AO 12 did not require complete
exposure history, and alternatively, that dismissal was not
warranted under Poulis. At no point did Plaintiffs offer
supplemental AO 12 submissions with more complete
exposure histories.
After Defendants submitted their motions to dismiss
and Plaintiffs filed their opposition, the District Court issued
an Order on March 12, 2012.5 The District Court dismissed
Arendt, Brix, and Burzynski for failure to show an asbestos-
related disease. App. at 50. The District Court also
dismissed Arendt and Brix as to Defendant General Electric
because Plaintiffs failed to serve the AO 12 submissions on it.
Id. at 48. The District Court dismissed Stafford, Michels,
Ostrand, Wright, Zerbel, Hansen, Morris, Repischak, and
Duffey for failing to provide a sufficient history of asbestos
exposure. Id. at 45-47. In the March 2012 Order, the District
Court adopted its reasoning in the November 2011 Order, and
also noted that “[w]ithout evidence of an exposure history for
each plaintiff and a medical diagnosis that allows defendants
and the Court to sort through, for example, which plaintiffs
allegedly were exposed to whose asbestos at which locations,
n.7 (3d Cir. 1984) (citing Link v. Wabash R.R., 370 U.S. 626(1962)).
5
One case in the present appeal, Stafford v. AW Chesterton
Company, No. 11 Civ. 63497, was dismissed with prejudice
by Order dated January 3, 2012. In that case, the District
Court granted Defendants‟ motion to dismiss pursuant to Rule
41(b) “for the reasons outlined in this Court‟s Memorandum
Opinion of November 14, 2011.” Doc. No. 240.
16
the litigation of thousands of cases could not go forward.” Id.at 42 n.2.
Plaintiffs‟ timely appeal followed. Plaintiffs advance
two arguments on appeal: (1) that the District Court
incorrectly held that Plaintiffs‟ AO 12 submissions were
deficient; and (2) that the District Court erred in dismissing
Plaintiffs‟ cases with prejudice under Rule 41(b) for failing to
comply with AO 12.
II. Standard of Review
We review a district court‟s interpretation of its own
orders with deference, particularly in the MDL context. See,
e.g., Gibbs v. Frank, 500 F.3d 202, 206 (3d Cir. 2007) (“We
review a district court‟s interpretation of its own order for
abuse of discretion.”); In re Fannie Mae Sec. Litig., 552 F.3d
814, 822-23 (D.C. Cir. 2009) (observing, in MDL, that
“[d]istrict judges must have authority to manage their
dockets, especially during a massive litigation such as this,
and we owe deference to their decisions whether and how to
enforce the deadlines they impose”).6
We review the District Court‟s dismissal pursuant to
Rule 41(b) for an abuse of discretion. Emerson v. Thiel
College, 296 F.3d 184, 190 (3d Cir. 2002).
6
Appellants made much of the standard of review in their
briefs, insisting that the District Court‟s interpretation of AO
12 should be reviewed de novo. Appellants did not support
this argument with case law, however, and largely abandoned
it at oral argument.
17
III. Discussion
We note at the outset that these cases were transferred
to the Eastern District of Pennsylvania as a result of the
centralization of all asbestos-related cases by the Judicial
Panel on Multidistrict Litigation. The goal of the multidistrict
litigation process is to “promote the just and efficient
conduct” of “civil actions involving one or more common
questions of fact” that are pending in different districts. 28
U.S.C. § 1407(a); see also In re Phenylpropanolamine (PPA)
Products Liability Litigation, 460 F.3d 1217, 1231 (9th Cir.
2006) (observing that when similar cases are coordinated for
pretrial purposes, those cases are more likely to proceed
toward resolution on the merits with less burden and expense
overall than if each were litigated separately).
To that end, Judge Robreno has been diligently
overseeing pretrial procedures in the asbestos-related cases
since he inherited this MDL in 2009, including issuing
administrative orders to streamline discovery. While the
specific form of MDL proceedings does not alter the
substantive rights of the litigants, it has nonetheless caused
courts of appeals to acknowledge the increased burden
imposed on judges handling these cases, and to consider these
demands in applying the “abuse of discretion” standard, as we
discuss more fully below.
We also note that dismissal with prejudice is a drastic
remedy and we must be assured that it was not ordered
arbitrarily. The history of the proceedings leading up to
dismissal, as discussed above, is therefore very important.
A. Compliance with AO 12
18
1. Complete Exposure History
Plaintiffs expended much of their energy before the
District Court urging that the District Court‟s interpretation of
AO 12, as set forth at length in its November 2011 Order, was
incorrect for requiring a complete exposure history. They
continue to press this argument on appeal. Plaintiffs insist
that AO 12 did not require a complete exposure history –
rather, Plaintiffs contend that indicating the nature and
duration of a claimant‟s work, as well as general allegations
of exposure history, should suffice. See, e.g., App. at 301-14
(discussing Plaintiff Barry Wright, who “worked primarily as
a painter in the state of Illinois between the years of 1966 and
1991” and “has a history of having been exposed to asbestos
and asbestos dust during the above mentioned period”).
The language of AO 12 is broad. While this broad
language could support other interpretations – including the
one urged by Plaintiffs – we see no reason not to defer to the
District Court‟s interpretation of AO 12 that requires
plaintiffs‟ submissions to include asbestos exposure history.
See DirecTV, Inc. v. Leto, 467 F.3d 842, 844 (3d Cir. 2006)
(noting that “we normally give great deference to a court‟s
interpretation of its own orders”); see also Negron-Almeda v.
Santiago, 528 F.3d 15, 22-23 (1st Cir. 2008) (explaining that
district court orders are “of considerable import” and that “a
reviewing court can comb relevant parts of the record to
discern the authoring court‟s intention”); United States v.
Davis, 261 F.3d 1, 58-59 (1st Cir. 2001) (“We defer to [the
district court‟s interpretation its own case management order]
because the district court was uniquely positioned to explain
the meaning of its own pretrial order.”).
19
In this case, the District Court resolved any ambiguity
as to the requirements of AO 12 in its November 2011 Order.
As detailed in the November 2011 Order, the District Court
believed that ordering plaintiffs to submit a “medical
diagnosing report or opinion” that was “based upon objective
and subjective data which shall be identified and descriptively
set out within the report or opinion,” App. at 13, meant that
plaintiffs must include exposure history so as to comply with
“generally accepted medical standards [that] call for
information regarding duration, intensity, time of onset, and
setting of exposure to asbestos,” id. at 31. Indeed, the District
Court specifically noted in its November 2011 Order that
accredited health organizations require exposure history in
screening for and diagnosing asbestos-related diseases. For
instance, as noted by the District Court, the Association of
Occupational and Environmental Clinics stated that “[a]n
appropriate screening program for asbestos-related lung
diseases includes properly chosen and interpreted chest films,
reviewed within one week of screening; a complete exposure
history; symptom review; standardized spirometry; and
physical examination.” Id. at 32 (emphasis in original;
citation omitted). Additionally, the American Thoracic
Society noted that “[i]t is essential to take a comprehensive
occupational and environmental history when asbestos-related
disease is suspected. The occupational history should
emphasize occupational and environmental opportunities for
exposure that occurred about 15 years and more before
presentation.” Id. at 33.
Accordingly, based on the language in AO 12 that
requires plaintiffs to submit medical diagnoses or opinions
based on objective and subjective data, as well as statements
from reputable medical organizations that emphasize the
20
importance of exposure history, the District Court interpreted
AO 12 submissions to include exposure history.7 Although
the broad language of AO 12 could support different
interpretations, it does not strike us as an abuse of discretion –
especially given the District Court‟s experience overseeing
these proceedings – to require a “complete occupational and
environmental exposure history when asbestos-related disease
is suspected.” Id. Cf. In re USA Commercial Mortg. Co., 452
F. App‟x 715, 720 (9th Cir. 2011) (“Indeed, in light of its
experience overseeing these proceedings, the district court is
entitled to broad deference in interpreting whether the
provisions of its own orders have been satisfied.”).
Presumably, the thousands of other AO 12 submissions for
cases pending in the MDL are supported by more detailed,
and thus satisfactory, exposure histories.
Plaintiffs‟ arguments before us track those they made
before the District Court, and they fare no better here.
Plaintiffs do not deny that their AO 12 submissions lack
exposure history. Rather, they focus their argument on
insisting that AO 12 did not require what the District Court
said it did, advancing an argument – relegated to the last
7
The District Court clearly believed that this applied to all
cases; Plaintiffs disagree and urge that requiring a detailed
occupational and environmental exposure history was
required only in nonmalignant “mass screening” cases. While
reasonable minds might differ as to the clarity of AO 12 on
this point, it became clear to counsel representing Plaintiffs
on November 14, 2011 that this was how the District Court
interpreted the requirements of AO 12. Indeed, Defendant
Bechtel, two days later, filed its motion to dismiss the instant
cases based on that reading.
21
pages of their brief on appeal – that dismissal was not
warranted and that they should be permitted to amend their
submissions. However, Plaintiffs could have supplemented
their submissions to comply with the District Court‟s
requirements at any time during the several months before the
District Court‟s issuance of its March 2012 Order. No
amendments were attached to their responses to Defendants‟
41(b) motions, nor were amendments ever filed. Three
months later, the District Court, consistent with its prior
order, entered the March 2012 Order dismissing these cases.
Because we cannot conclude that the District Court
abused its discretion by interpreting AO 12 to require a
complete exposure history, and because Plaintiffs‟ AO 12
submissions do not include complete exposure histories,
Plaintiffs‟ argument fails.
2. Asbestos-Related Disease
The District Court also dismissed the Arendt, Brix, and
Burzynski cases for failure to show an asbestos-related
disease as required by AO 12. The District Court specified
the meaning of “asbestos-related disease” in its November
2011 Order. After surveying state law and doctrinal trends,
the District Court concluded that plaintiffs whose AO 12
submissions showed only “pleural plaques and pleural
thickening, but no „asbestos-related disease‟ or „cognizable
asbestos-related injury‟” did not satisfy the requirements of
AO 12. App. at 34. Rather, “to satisfy AO 12, the medical
evidence presented by Plaintiff must contain a diagnosis of a
symptomatic asbestos-related disease.” Id.22
On appeal, Plaintiffs do not argue that the District
Court erred in its interpretation of AO 12 in this regard – in
fact, they concede that the AO 12 submissions in the Brix and
Burzynski cases did not demonstrate diagnosis of a
symptomatic asbestos-related disease. However, Plaintiffs
argue that the AO 12 submission in Arendt did, in fact, show
such a diagnosis.
The AO 12 submission in Arendt included one chest
scan that suggested “bilateral apical pleural thickening” and
“small right-sided pleural effusion.” Id. at 81. This was,
evidently, the only medical record submitted in connection
with the AO 12 submission. Id. at 81-84. While Plaintiff
made other submissions to the “IKON repository” that
included arguably more thorough diagnosing information, id.
at 86-145, these documents were not included in Plaintiff‟s
AO 12 submission.
Because, as the District Court concluded in its
November 2011 Order, “pleural thickening” does not satisfy
AO 12‟s requirement of showing an asbestos-related disease,
and Plaintiff‟s AO 12 submission discusses only “pleural
thickening,” the District Court did not err in concluding that
Plaintiff‟s AO 12 submissions in Arendt, Brix, and Burzynski
were deficient.8
8
We need not address Plaintiffs‟ arguments as to dismissal
against Defendant General Electric, as we conclude that the
District Court properly dismissed Arendt and Brix for failing
to comply with AO 12.
23
B. Dismissal With Prejudice
In an apparent last ditch argument, Plaintiffs urge that
the District Court erred in dismissing Plaintiffs‟ cases with
prejudice because it did not properly consider the Poulis
factors. As stated above, we review dismissals under Rule
41(b) for abuse of discretion. Emerson, 296 F.3d at 190. To
determine if the District Court abused its discretion in
dismissing a case under Rule 41(b), we review the manner in
which it balanced the six factors enumerated in Poulis v. State
Farm Fire and Casualty Company. See Ali v. Sims, 788 F.2d
954, 957 (3d Cir. 1986) (“In determining whether a district
court has abused its discretion in dismissing a complaint . . .
we will be guided by the manner in which the court balanced
the Poulis factors and whether the record supports its
findings.”). Those factors are: (1) the extent of the party‟s
personal responsibility; (2) the prejudice to the adversary
caused by the failure to meet scheduling orders and respond
to discovery; (3) a history of dilatoriness; (4) whether the
conduct of the party or the attorney was willful or in bad
faith; (5) the effectiveness of alternative sanctions other than
dismissal; and (6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868. We have required district courts to
consider these factors because dismissal with prejudice is,
undeniably, a drastic sanction. See United States v.
$8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir.
2003) (noting that the district court should have considered all
six Poulis factors before dismissing claim as a discovery
sanction).
24
We have noted in the past that there is no “magic
formula” or “mechanical calculation” with regard to Poulis
analysis. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008).
In fact, “„no single Poulis factor is dispositive,‟ [and] we have
also made it clear that „not all of the Poulis factors need be
satisfied in order to dismiss a complaint.‟” Id. (quoting Ware
v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) and
Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).
However, a district court‟s ability under Rule 41(b) “to
prevent undue delays and to achieve the orderly disposition of
cases must be weighed against the policy of law which favors
disposition of litigation on its merits.” Marshall v. Sielaff,
492 F.2d 917, 918 (3d Cir. 1974). While consideration of the
Poulis factors can help strike that balance, “[n]o precise rule
can be laid down as to what circumstances justify a dismissal
for failure to prosecute, but the procedural history of each
case must be examined in order to make that determination.”
Id.With that in mind, it bears noting that district judges
“must have authority to manage their dockets, especially
during [a] massive litigation.” Fannie Mae, 552 F.3d at 823.
As the Ninth Circuit recognized, “administering cases in
multidistrict litigation is different from administering cases on
a routine docket.” In re Phenylpropalomine (PPA), 460 F.3d
at 1229. Accordingly, in complex cases, district courts must
have wide discretion to manage “complex issues and potential
burdens on defendants and the court” – namely, as the Fifth
Circuit recognized, through managing discovery. Acuna, 200
F.3d at 340-41 (noting that in case where approximately 1600
plaintiffs sued over 100 defendants for a range of injuries
occurring over a span of up to forty years, it was “within the
court‟s discretion to take steps to manage the complex and
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potentially very burdensome discovery that the cases would
require”).
Moreover, the parties‟ compliance with case
management orders is essential in a complex litigation such as
this. In the words of the Ninth Circuit:
Multidistrict litigation is a special
breed of complex litigation where
the whole is bigger than the sum
of its parts. The district court
needs to have broad discretion to
administer the proceeding as a
whole, which necessarily includes
keeping the parts in line. Case
management orders are the engine
that drives disposition on the
merits.
In re Phenylpropalomine (PPA), 460 F.3d at 1232. Thus, a
sprawling multidistrict matter such as this presents a special
situation, in which the district judge must be given wide
latitude with regard to case management in order to
effectively achieve the goals set forth by the legislation that
created the Judicial Panel on Multidistrict Litigation. See 28
U.S.C. § 1407(a) (permitting transfers of actions “for the
convenience of parties and witnesses and [for] just and
efficient conduct of such actions”). At the same time,
efficiency must not be achieved at the expense of preventing
meritorious claims from going forward.
District courts have analyzed the Poulis factors when,
as in Poulis itself, it dismisses a case sua sponte, as well as in
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cases like this, where the plaintiffs were put on notice by a
motion that dismissal was being sought, and given the
opportunity to oppose the motion. We have not previously
considered whether, and if so how, the two situations may
differ with respect to the Poulis analysis, but we take this
opportunity to do so now.
We touched upon the distinction in Briscoe v. Klaus
when we observed that “it is imperative that the District Court
have a full understanding of the surrounding facts and
circumstances pertinent to the Poulis factors before it
undertakes its analysis.” 538 F.3d at 258. We warned that
district courts must “use caution” in using Rule 41(b) to
dismiss cases sua sponte, “because it may not have acquired
knowledge of the facts it needs to make an informed
decision.” Id. We found it particularly important for the
district court to “provide the plaintiff with an opportunity to
explain his reasons for failing to prosecute the case or comply
with its orders prior to dismissing a case sua sponte.” Id.One way a plaintiff has “a full and fair opportunity to
be heard regarding his failure to comply with the court‟s
orders,” id. at 264, is by opposing a defendant‟s motion for
dismissal under Rule 41(b). In such a situation, the plaintiff
has every incentive to “explain his reasons for failing to
prosecute the case or comply with [the district court‟s]
orders.” Id. The concerns that are present when a district
court dismisses a case sua sponte without giving the plaintiff
an opportunity to present arguments against dismissal are
lessened when dismissal is a result of a fully briefed motion.
This is particularly true when the district judge has already
elucidated his interpretation of a case management order and
has warned the parties that failure to comply with the order
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could result in dismissal, and especially in the MDL context,
when the district judge is overseeing several thousand cases.
Keeping these concerns in mind, we will not hesitate
to remand a case to the district court when the judge
dismisses a case sua sponte without an indication that Poulis
was considered. We have done so in the past. See, e.g., id. at
263-64 (“[W]here, as here, the District Court does not have
the facts necessary to conduct a full analysis of the Poulis
factors, it is not appropriate for the District Court to dismiss a
plaintiff‟s case sua sponte.”). However, we believe we
should view dismissals following a contested motion
somewhat differently. The dismissal here was entered after
an adversary vetting of its propriety – after a motion and a
response to that motion – so our approach can be more
measured, since the parties have had the opportunity to
present the facts and the arguments. Here we believe the
District Court weighed the arguments advanced by the parties
along the lines of Poulis. In the context of a massive
multidistrict litigation, our ability to satisfy ourselves that the
district court did not act arbitrarily, and did consider the
relevant factors, is made easier when the dismissal resulted
from the defendant‟s motion and was challenged by the
plaintiff before the district court ruled.
Here, Judge Robreno clearly considered the
applicability of Poulis. Not only did he discuss the Poulis
factors in the November 2011 Order, but the parties also
addressed them fully in their briefs. While Judge Robreno
did not explicitly weigh all of the factors in his March 2012
Order, he signaled his view as to the egregiousness of the
dilatoriness and prejudice aspects. App. at 41 n.2. He noted
that Plaintiffs were essentially holding up the progress of the
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cases notwithstanding the District Court‟s having issued a
clear order. Id. Moreover, by not coming forth with a
diagnosis supplemented by a complete exposure history that
could withstand a motion to dismiss, Plaintiffs were
preventing the District Court from being able to decide
whether the claims were meritorious. Cf. Avila v. Willits
Envtl. Remediation Trust, 633 F.3d 828, 832 (9th Cir. 2011)
(affirming district court‟s dismissal of several hundred
plaintiffs in complex environmental litigation where plaintiffs
failed to comply with district court‟s order to submit
questionnaire after district court extended deadline several
times and plaintiffs were warned that the district court would
dismiss any party who failed to file by the extended
deadlines).
Once the District Court made clear the way in which it
viewed the diagnostic information required, counsel – who
were also counsel to forty-seven plaintiffs whose cases had
been dismissed pursuant to the November 2011 Order – were
on notice that their submissions were deficient. The very
motions filed by Defendants in this case sought dismissal on
the basis of the District Court‟s November 2011 Order. Yet
Plaintiffs chose the strategy of arguing to the contrary, in
seeming denial, while the consequences of doing so – in light
of the dismissals previously ordered in November 2011 –
were quite clear, and admittedly drastic.
Judge Robreno‟s ruling was not the product of a clash
of wills in a solitary case. Nor was it precipitous. It was,
instead, typical of the interplay of Rule 41(b) in the context of
the management of multidistrict litigation. Rule 41(b) is
intended to allow judges to enforce orders pertaining to the
progress of their cases. Nowhere is this more important, in
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terms of the degree of difficulty and the impact, than in
multidistrict litigation cases, where the very purpose of the
centralization before the transferee judge is the efficient
progress of the cases in preparation for trial.
Here, we have little difficulty concluding that the
District Court considered and weighed the factors, viewing
the dilatory and prejudicial aspects as outweighing all others.
Moreover, as noted above, the flaw in the submissions went
to the very heart of the “meritorious” aspect, making the
weighing of that factor impossible. Thus, we will affirm the
District Court‟s dismissal with prejudice of the claims in the
instant appeal.
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