MDL judge could change the game of asbestos litigation

By Aricka Flowers | Aug 17, 2009


PHILADELPHIA (Legal Newsline) - Since his appointment last year to the U.S. Multi District Litigation on asbestos, Judge Eduardo Robreno has developed a reputation for clearing the court's massive docket at warp speed -- half a million cases in four months.

But the Pennsylvania judge also is becoming known for changing the way plaintiff attorneys present, and manage, asbestos litigation and its supporting evidence.

Early this year, Robreno ordered radiologist Dr. Jay Segarra and two other physicians to turn over their records for all plaintiffs using the physicians' diagnoses for asbestos cases.

Soon after, a magistrate judge expanded that order to include all cases in which the physicians were involved - not just those that go in front of Robreno. And in May, Robreno declared the matter moot because the plaintiffs in the cases for which he requested the records had each been dismissed by their counsel.

Meanwhile, Union Carbide, a defendant in another asbestos case with evidence from Segarra, has subpoenaed his records.

To date, Segarra has yet to produce his medical records and plaintiff attorneys are arguing that he shouldn't have to do so.

"The plaintiffs are claiming Segarra is a consulting expert and is therefore protected by privilege," said Lester Brickman, law professor at the Benjamin N. Cardozo School of Law of Yeshiva University in New York and expert on mass torts.

"The defendants will try to show there is a statutory exception for exceptional circumstances," Brickman said. "Dr. Segarra and his failure to comply with numerous subpoenas requesting that he provide his screening records, which would show the percentage of positive diagnoses, is one major issue that Judge Robreno will have to deal with."

Long time coming

Another legal expert says it makes sense that plaintiffs' medical experts are being questioned. He says it's been a long time coming.

"There is a distressing awareness on the part of many that a large number of these mass tort claims are fraudulent," said Richard Epstein, a University of Chicago distinguished professor of law.

"You have to speak to medical people about the evidence that is presented," he said. "If these tests are pretty much exclusively controlled by the plaintiffs, as opposed to some neutral public party, you can't believe the outcomes. There is a basic, fundamental principle in all of this and that is one cannot treat fraud as simply as an occasional mishap or random event."

According Brickman, a good number of the cases that have been settled under Robreno so far were dismissed after the defense made Daubert challenges. In other words, defense put into question the reliability of the plaintiffs' expert testimony, and in these cases – the diagnosing doctors.

"There about 25 plaintiffs' doctors that I call litigation doctors," explained Brickman. "That is, the doctors that regularly manufacture diagnoses for money; fraudsters to put it bluntly."

Brickman said that for claims in which these doctors provide the medical record to support the claim, defendants are making Daubert challenges.

"There have been hundreds, maybe thousands, of cases dismissed because once you throw out the plaintiff's expert on causation, there's no more case," Brickman said.

In some instances, claims that include evidence from these controversial physicians and experts are being challenged by defendants simply because the diagnosis and other medical information comes from these questionable sources. And, according to Brickman, that has caused plaintiff attorneys to cut and run so as to save thousands of similar cases in bankruptcy trust.

"What's happening is that almost every time the defendants raise a Daubert challenge to one of these litigation doctors, the plaintiffs are dismissing the case," he said. "They are not willing to run the risk that the Daubert challenge will be successful with regard to that doctor and that case."

"What they are concerned about is the hundreds of thousands of claims they have submitted to the bankruptcy trust. If the doctor were found in MDL875 to be providing invalid medical diagnosis, then the thousands and thousands of claims that have been filed with asbestos bankruptcy trusts using that physician as the diagnosing doctor would have to be rejected."

Cannon shot across the bough

This would not be the first time such an occurrence took place. Judge Robreno has been commonly compared to U.S. District Court Judge Janis Jack in Texas, whose 2005 ruling that thousands of silica exposure claims were based on junk science and false diagnoses caused judges to look at silicosis litigation in a whole new way - and some say Judge Robreno could do the same for asbestos cases.

"Judge Janis Jack was able to expose some fraud that had been taking place with thousands of plaintiffs being misdiagnosed to benefit lawyers seeking money," said Bob Dorigo Jones, spokesman for the Foundation for Fair Civil Justice.

"One of the doctors that had been misdiagnosing plaintiffs in all the lawsuits that Judge Jack had been involved with in Texas had been misdiagnosing plaintiffs in asbestos lawsuits too," he said. "And when Judge Jack exposed the fraud, it served as a cannon shot across the bough for other judges involved in other areas of mass tort and class action lawsuits to dig deeper into the evidence that was being used in these lawsuits in their courts."

And that is exactly what is happening in many of the cases that are on Robreno's docket, according to Dorigo Jones.

"What Judge Robreno is doing here is forcing the plaintiffs and defendants in asbestos cases to base their case on verifiable evidence," he said. "That doesn't seem like a radical concept, but for years plaintiffs' attorneys have used the huge hammer that comes with a class action lawsuit to force the arm of defendants into settling even when there wasn't good evidence."

John E. Herrick, a member of Motley Rice LLC who is also on the plaintiff's steering committee for the MDL, says the asbestos cases are not actually class action suits.

Instead, he said, over the years many plaintiff firms filed multiple plaintiffs on one complaint for ease of filing. But now, the decision to consolidate complaints may be a seen as a huge mistake.

According to Brickman, those bundled cases could be in jeopardy because of Daubert challenges.

Robreno also is facing a controversial motion regarding bundled cases that came from General Electric attorney Marcy Croft.

She requested that Robreno drop 10,000 lawsuits in one order.

Depending on his decision, the judge's order could have implications on the way companies handle the numerous tort lawsuits they are presented with each year. If the request is granted, attorneys at major companies may follow suit and ask for their own sweeping orders to dismiss thousands of cases at a time.

But one attorney and expert on the MDL says Robreno will require that traditional filing procedures still apply to cases even though they are in the MDL; meaning they will need to be filed, and decided upon, individually.

"Judge Robreno, to his credit, is not interested in doing things in an omnibus fashion," said Herrick.

"He said that in more than one order that he's issued from the court," he said. "General Electric is trying to make an omnibus motion, but he's going to require that motion be done for every case. Judge Robreno's approach is that these cases shouldn't be singled out or treated differently because they're in the MDL. A case is still a case; there should be no shortcuts in the MDL."

Robreno's decision will create a precedent for how multiple claims are handled in the MDL. Yet, how he decides may not make a difference for cases against companies like General Motors, which filed for bankruptcy on June 1.

"From my understanding, bankruptcy laws prevail and a company has protection from lawsuits that were pending at the time of their declaration of bankruptcy," said Dorigo Jones.

"I think that will relieve Judge Robreno of considering a lot of lawsuits that he ordinarily would have," he said. "No one is going to know how many of these lawsuits were frivolous and how many had merit, but experience leads us to believe that the majority of those lawsuits are without merit."

Dorigo Jones said tort claims were one of the factors that drove General Motors into bankruptcy.

"Tort lawsuit defense costs companies millions of dollars a year," he said. "The tremendous weight of defending themselves against lawsuits like these cost General Motors close to $1 billion last year alone."

Legal experts predict that Judge Robreno will make it through his docket by year's end, if not by fall. By that time, he will have made decisions that could permanently change asbestos litigation in America, especially when it comes to the thousands of cases that feature evidence from the physicians in question.

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