Third Circuit Affirms Judge Robreno’s Dismissal of Asbestos Claims for Failure to Provide Medical Reports Addressing Exposure History


Courts overseeing asbestos litigation rarely require plaintiffs to have proof of their claims when their cases are filed. But in a positive step toward placing the traditional burden of proving claims back on asbestos plaintiffs, the Third Circuit recently affirmed Judge Robreno's dismissal with prejudice of numerous cases pending in the Asbestos MDL. The dismissals were based on plaintiffs' failure to provide medical reports addressing their exposure history. Judge Robreno's ruling was in response to defendants' motions to dismiss for non-compliance with Amended Administrative Order 12 ("AO12"). AO12 requires plaintiffs to file medical reports supporting their claims that comport with medically accepted principles and practices. Plaintiffs must file these reports within 30 days after their cases are transferred to the Asbestos MDL.

In November 2011, Judge Robreno found that the appropriate time to rule on the admissibility of plaintiffs' medical reports was during consideration of the defendants' Rule 41(b) motions. He examined the standards of the American Thoracic Society and the Association of Occupational and Environmental Clinics, both of which were referenced in AO12, and found that they require a consideration of occupational and exposure history when diagnosing asbestos-related diseases. He granted defendants' motions to dismiss because the plaintiffs' submissions were devoid of this information.

In March 2012, Judge Robreno cited his November 2011 opinion and ordered the dismissal of several additional cases. He added that "Without 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, the litigation of thousands of cases could not go forward."

Several plaintiffs appealed the March 2012 order and the Third Circuit affirmed Judge Robreno's ruling. The Third Circuit agreed with the defendants that generally accepted medical standards call for information regarding "duration, intensity, time of onset, and setting" of exposure in providing opinions supporting asbestos claims. The Third Circuit found that the purpose of AO12's requirement for the medical reports is to allow meritorious claims to proceed to trial and to avoid placing unnecessary burdens on defendants faced with unsupported claims. The Third Circuit's ruling is an important development and will lend support to defendants across the county in other jurisdictions trying to implement procedural orders that properly place the burden on the plaintiff to support their claims against individual defendants earlier in the process. In the Asbestos MDL, the requirement that the plaintiffs demonstrate a link to specific defendants' products soon after a case is filed, rather than forcing defendants to go through discovery, retain experts, and wait until the eve of trial to argue summary judgment motions, is significant. We hope that other jurisdictions follow the lead of Judge Robreno and the Third Circuit. Please contact David Governo at [email protected] or Chuck Sheehan at [email protected] or call (617) 737-9045 if you have questions or would like additional information.