In Re Asbestos Products Liability Litigation (No. VI)

(2008)

In re: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI).

MDL No. 875.

United States Judicial Panel on Multidistrict Litigation.

April 8, 2008.

TRANSFER ORDER

D. LOWELL JENSEN, Acting Chairman.

Before the entire Panel^[*]: Plaintiffs in five actions listed on Schedule A and pending in the District of Connecticut, Northern District of Illinois, District of Maryland (two actions), and District of New Jersey, respectively,^[1] have moved, pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), to vacate the respective portions of our orders conditionally transferring the actions to the Eastern District of Pennsylvania for inclusion in MDL No. 875. Responding defendants^[2] oppose the motions to vacate.

After considering all argument of counsel, we find that these actions involve common questions of fact with actions in this litigation previously transferred to the Eastern District of Pennsylvania, and that transfer of these actions to the Eastern District of Pennsylvania for inclusion in MDL No. 875 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. We further find that transfer of these actions is appropriate for reasons that we set out in our original decision in this docket directing centralization of all pending federal court actions not then in trial involving allegations of personal injury or wrongful death caused by asbestos or asbestos containing products. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415 (J.P.M.L.1991). Particularly, in our original decision distinctions based on such matters as the pendency of motions or other matters before the transferor court, the uniqueness of a party's status, the type of defendant, the docket condition of any specific federal district, the stage of pretrial proceedings, the presence of unique claims or additional claims not relating to asbestos injury or death, and/or the unanimity of opposition to transfer by the parties to an action, were considered and rejected by us as grounds for carving out exceptions to transfer in this extraordinary docket.^[3] We are not persuaded to depart from this approach in dealing with the question of transfer of the present actions.

Under the stewardship of the transferee court, as of March 31, 2008, (1) over 76,450 actions have been closed in the transferee district, and (2) over 1,370 actions or claims therein have been returned to their originating transferor districts. To any parties that believe the uniqueness of their particular situation renders continued inclusion of their action in MDL No. 875 unnecessary or inadvisable, whenever the transferee court deems remand of any claims or actions appropriate, procedures are available whereby this may be accomplished with a minimum of delay. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. at 436-38. We are confident that the transferee court will continue to promptly review arguments for returning transferred actions or claims to their transferor courts and will take all appropriate steps to assure their speedy return whenever it is convinced that retention in the MDL No. 875 proceedings is no longer needed.

IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, these five actions are transferred to the Eastern District of Pennsylvania and, with the consent of that court, assigned to the Honorable James T. Giles for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.

SCHEDULE A

MDL No. 875 — IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI)

District of Connecticut

Laura Contois, etc. v. Able Industries, Inc., et al, C.A. No. 3:07-1328

Northern District of Illinois

Mary Ellen Harris, etc. v. Rapid-American Corp., et al., C.A. No. 1:07-6055

District of Maryland

Michael J. McCurdy, et al. v. John Crane-Houdaille, Inc., et al, C.A. No. 1:07-2681

Dorothy Boyd, etc. v. MCIC, Inc., et al, C.A. No. 1:07-3311

District of New Jersey

Ruth Shamir, etc. v. Agilent Technologies, Inc., et al, C.A. No. 2:07-4185

NOTES

[*] Judges Heyburn and Scirica took no part in the disposition of this matter. Judge Motz took no part in the disposition of this matter with respect to the District of Connecticut Contois, Northern District of Illinois Harris, and District of Maryland Boyd and McCurdy actions.

[1] Plaintiffs in a sixth action that was pending in the Southern District of Illinois, Sether, et al. v. AGCO Corp., et al, C.A. No. 3:07-809, also moved to vacate the respective portion of our order conditionally transferring that action to MDL No. 875. Although we considered that motion at our March 2008 hearing we have since been informed that Sether has been remanded to Illinois state court. Accordingly, the issue of Section 1407 transfer with respect to Sether is moot.

[2] General Electric Co. and Buffalo Pumps, Inc. (in the District of Connecticut action);Viad Corp. (in the Northern District of Illinois action); Garlock Sealing Technologies, LLC, and Greene, Tweed & Co. (in the District of Maryland McCurdy action); and Agilent Technologies, Inc., and Hewlett-Packard Co. (in the District of New Jersey action).

[3] We have also previously rejected the contention, which is again raised by plaintiff in the District of Connecticut Contois action here, that "the way in which MDL-875 is being administered effectively denies [plaintiffs] their constitutional right to a jury trial." In re Asbestos Products Liability Litigation (No. VI), 170 F. Supp. 2d 1348, 1349 (J.P.M.L. 2001).