An effective tool in defending asbestos personal injury claims brought in state court venues has been to remove those cases with significant jury verdict value to federal court. For example, in cases venued in Los Angeles County, defendants have removed to the Central District of California upon a showing of a federal question which invokes the jurisdiction of the federal courts. While plaintiffs will move for remand, these cases generally remain in federal court and are routinely designated as "tag-along" actions to the Asbestos Multi-District Litigation ("MDL-875") venued in the Eastern District of Pennsylvania. Once transferred to the MDL-875, the cases typically languish for years without a resolution on the merits. In fact, the Eastern District has been such a dark hole that a courtesy call to plaintiffs' counsel, informing him of the intent to remove, frequently results in a dismissal of the potentially removing party.

During the past year, the MDL-875's Presiding Judge, the Honorable Eduardo Robreno, has made the remarkable achievement of clearing from the docket thousands of mass filings involving the unsubstantiated claims of approximately 500,000 claimants. In addition, he has undertaken the ambitious goal of advancing every case pending in the MDL-875 toward resolution by December 31, 2010.

Specifically, Judge Robreno intends that by year end every case will have been settled, dismissed, or remanded to the local federal district court for trial. In order to effectuate this plan, Judge Robreno recently started to issue scheduling orders wherein discovery deadlines are calculated to assure that discovery is completed within six to nine months of entry of the order at which time the court will consider dispositive motions. If not dismissed, the case will be returned to the local district court for trial. The scheduling order is generally entered 90 to 120 days after transfer to the MDL-875. This results in the cases being set on a track that is on par with state court actions. Thus, some of the sting of removal has been eviscerated. Nonetheless, litigation in federal court retains the advantages of greater scrutiny of expert witnesses and their opinions, a lower burden of proof for defendants at summary judgment, unanimous jury verdicts and juries that are generally more conservative and less generous.

For those cases where, due to age or terminal illness, a plaintiff may be entitled to a preferential trial date in state court, the prospect of removal retains its punch. Rather than obtaining a trial date of not more than 120 days from the grant of preference, plaintiff must endure delay inherent in a regularly noticed motion to remand to state court as well as the imposition of a stay while the MDL-875 panel considers the motion to transfer venue. In actions removed during the past six months, the MDL-875 has typically ordered an additional stay of 60 to 90 days following transfer. Only then is a hearing placed on calendar for the consideration of a scheduling order and usually on 30 days notice. The prospect of the intrinsic delay of four to six months before a scheduling order is set in place may still provide sufficient incentive to plaintiffs to dismiss a defendant rather than losing an expedited trial date in state court. Thus, while removal has more limited application, it still remains an effective tool for time sensitive cases with significant potential jury verdict value.


Anne C. Gritzer is a senior associate in the firm's Orange office. Please feel free to contact her at (714)634-2522, agritzer@wfbm.com.

back to top | Volume 9, Issue 2 Index