Steve Korris Jun. 17, 2010, 6:00am
PHILADELPHIA – U. S. District Judge Eduardo Robreno's decision to remand 73 asbestos suits to Jefferson County District Judge Gary Sanderson drew a howl of protest from paper maker Kimberly-Clark, a defendant in all 73.
Kimberly-Clark bashed Jefferson County justice in motions to recall the cases, stay proceedings and certify a question to the U. S. Third Circuit court of appeals.
Attorney Stephen Fogdall of Philadelphia's Schnader firm wrote that Robreno rewarded plaintiffs who shopped for a friendly forum that had no connection to them or their claims.
He wrote that almost all of them came from Alabama, Mississippi or Tennessee and that they chose Jefferson County "solely to give them the unilateral ability to manipulate the state court's docket and to exercise complete control over the conduct of the litigation."
"Kimberly-Clark is cognizant of the awkwardness of asking this court for relief predicated on an argument that it is likely to succeed in convincing the Court of Appeals to reverse this Court's remand order," he wrote.
Robreno presides over tens of thousands of asbestos suits from federal courts around the nation by appointment of the U. S. Judicial Panel on Multi District Litigation.
In May, he granted a remand motion from Glen Morgan of Reaud, Morgan and Quinn, finding Kimberly-Clark removed the cases to federal court too late.
Fogdall filed an appeal notice on June 3, and followed with briefs on June 4.
He wrote that plaintiffs originally filed the cases as part of a single action, Martin v. A. C. & S. Inc., involving thousands of plaintiffs and dozens of defendants.
"Plaintiffs deliberately joined all of these thousands of cases under a single caption as a way to squeeze as many cases as possible into that plaintiff-friendly forum," he wrote.
He wrote that they did it to save money on filing fees, avoid the consequences of Texas tort reforms and defeat removal of the cases to federal court.
Most importantly, he wrote, they did it "to take advantage of the lack of formal, uniform or defined procedures in that forum which essentially gave plaintiffs' counsel near unilateral control over the conduct of litigation in the individual cases."
He wrote that the first petition naming Kimberly-Clark as a defendant in 1995 made no specific allegation as to any company facility.
Kimberly-Clark had no way of knowing that any plaintiff alleged asbestos exposure at its Coosa Pines newsprint mill in Childersburg, Ala., or anywhere else, he wrote.
"Hence, Kimberly-Clark had no way of ascertaining at that time that two bases of federal court jurisdiction over these 73 cases existed," he wrote.
"Nor did Kimberly-Clark have any basis for ascertaining either of these bases of federal court jurisdiction for over 10 years after the Martin case was filed."
The court allowed no discovery specific to any plaintiff, he wrote.
"Rather, from time to time groups of cases would be severed off from the Martin case – again, subject to the unilateral control of plaintiffs' counsel – and assigned separate cause numbers and scheduling orders by the court," Fogdall wrote.
"Only then would plaintiffs file plaintiff specific discovery responses or other papers definitively identifying facts that could provide a basis for removal," he wrote.
According to the motion, in 2005, plaintiffs in a newly-severed case disclosed for the first time that they were residents of Alabama and Tennessee.
Kimberly-Clark removed the cases to federal court, and it was there that plaintiffs stated for the first time that they alleged exposure at the newsprint mill, Fogdall claims. Kimberly-Clark moved to amend its removal notice and assert federal jurisdiction based on the mill's lease of its property from the U. S. government.
Plaintiffs opposed the motion, arguing that a deposition of former Kimberly-Clark employee Sanford Pinkerton in 2004 triggered the removal period. Pinkerton's deposition was taken before the cases were severed out of the Martin action.
U. S. District Judge Marcia Crone granted leave to amend the removal notice in 2006 and the multi district panel transferred the cases to Robreno last year.
Fogdall wrote that plaintiffs moved to remand to Jefferson County this February, repeating the argument that Pinkerton's deposition triggered the removal period.
Contrary to Crone, Robreno agreed with plaintiffs.
But Fogdall claims Robreno lacked authority to enter a contrary ruling.
"Mr. Pinkerton never testified that anyone at the Coosa Pines facility had been exposed to asbestos," Fogdall wrote.
He wrote that Kimberly-Clark would dispute at trial that Pinkerton's deposition constituted evidence of exposure.
Reliance on testimony before severance in cases after severance would be proper only if all cases were properly joined in the first place, Fogdall wrote.
"If that determination is not reviewable, then plaintiffs will have been permitted to engineer a remand as a result of the very conduct by which they sought to prevent removal of these cases in the first place," he wrote.
"As the district court in Texas necessarily determined, the first unequivocally clear and certain statement by plaintiffs of their alleged exposure was the Dec. 14, 2005, stipulation of facts they filed," he wrote. "Kimberly-Clark timely removed all 73 of these cases within 30 days of this date."
Plaintiffs chose Jefferson County, Fogdall claims, "in order to take full advantage of the opportunities for docket manipulation that the court's lack of formal procedures created."
He wrote, "Further, the joinder of these cases was specifically designed to prevent removal of the actions to federal court."
According to Fogdall, Robreno's ruling unfairly penalized Kimberly-Clark, "because its hands were tied by plaintiffs' unilateral control over the timing of discovery, motion practice and trial dates."