1,700 Multidistrict Litigation Asbestos Cases Dismissed for Lack of Injury

8/27/2012

Should plaintiffs in asbestos cases actually have to suffer an injury in order to bring a lawsuit? Fortunately, the Honorable Eduardo C. Robreno of the U.S. District Court of the Eastern District of Pennsylvania, who presides over the federal Asbestos Products Liability Litigation consolidated Multidistrict Litigation docket (MDL 875), thinks so. On August 7, 2012, Judge Robreno issued an order dismissing 1,679 cases for lack of injury and holding that the plaintiffs' claimed injuries-"pleural plaques and pleural thickening," which result from the scarring of the otherwise healthy pleura of the lungs-do not constitute physical impairments and are non-cognizable injuries under maritime law.

In this decision, Judge Robreno considered 5,464 motions to dismiss in approximately 2,672 MDL cases pending at the MDL's maritime docket ("MARDOC"). The plaintiffs in these cases, who were merchant marines during the time of their alleged exposures to asbestos, brought claims against both manufacturer defendants (i.e., product manufacturers whose products were used aboard vessels) and employer defendants (i.e., ship owners and operators). The former claims were governed by general maritime law, while the latter claims were governed by the Jones Act (46 U.S.C. § 30104), under which a seaman may sue his employer for damages if he was acting within the scope of his employment and injured due to the employer's negligence. [1]

The plaintiffs argued that an "injury" occurs as soon as one inhales asbestos dust, but Judge Robreno found the argument "unconvincing," holding that "pleural changes" are not injuries. He went on to explain that "[a]llowing an asymptomatic plaintiff, such as one with only pleural changes, to collect damages, especially in a litigation as long-running as asbestos litigation, would be contrary to public policy."

Judge Robreno noted that the general trend among the states supported his conclusion that asymptomatic asbestos-related conditions are not actionable, citing numerous decisions, including decisions from Pennsylvania, Ohio, Texas (applying Michigan law), Connecticut, Maine, Maryland, Indiana, Arizona, Hawaii, and Oregon. [2] He also pointed to Owens-Illinois v. Armstrong, 591 A.2d 544 (Md. Ct. Spec. App. 1991), in which the Maryland Court of Appeals explained-based upon a review of testimony from two medical experts offered by the plaintiff-that pleural plaques (localized scarring) and pleural thickening (widespread scarring) "do not affect the human body, do not shorten life expectancy, do not cause complications or problems, do not cause pain and cannot be felt."

For more information regarding this decision or asbestos litigation in general, please contact David Governo (dgoverno@governo.com) or Corey Dennis (cdennis@governo.com).

[1] The Court found there were no significant distinctions between the Jones Act and general maritime law for the purposes of this case.

[2] See Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232, 237 (Pa. 1996); Ackison v. Anchor Packing Co., 897 N.E.2d 1118, 1126 (Ohio 2008); Ford Motor Co. v. Miller, 260 S.W.3d 515, 517 (Tex. App. 2008); Bowerman v. United Illuminating, No. X04CV 940115436S, 1998 WL 910271, at *5 (Conn. Super. Ct. Dec.15, 1998); Bernier v. Raymark Indus., Inc., 516 A.2d 534, 543 (Me. 1986); Owens-Illinois v. Armstrong, 591 A.2d 544, 560 (Md. Ct. Spec. App. 1991); AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068, 1075 (Ind. 2003); Burns v. Jaquays Min. Corp., 752 P.2d 28, 30-31 (Ariz. Ct. App.1987); In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563, 1567 (D. Hawaii 1990); Solberg v. Tice Elec., 157 P.3d 1277, 1278 (Or. Ct. App. 2007).


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