IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS : CONSOLIDATED UNDER
LIABILITY LITIGATION (No. VI) : MDL DOCKET NO. 875
:
VARIOUS PLAINTIFFS :
:
: Certain cases on the Maritime
v. : Docket (“MARDOC”), listed in
: Exhibits “A” and “B,” attached
:
VARIOUS DEFENDANTS :
M E M O R A N D U M
EDUARDO C. ROBRENO, J. August 7, 2012
TABLE OF CONTENTS
I. INTRODUCTION..............................................2
II. BACKGROUND................................................3
III. LEGAL STANDARD........ ...................................9
A. Motion to Dismiss....................................9
B. Applicability of Maritime Substantive Law...........10
1. Locality Test..................................12
2. Connection Test................................12
C. Applicability of Federal Procedural Law.............13
IV. DISCUSSION...............................................15
A. Non-Cognizability of Asymptomatic Conditions........16
1. Connection Between the Jones Act, Maritime
Law, and FELA..................................16
2. Requirement of an “Injury” under the Jones
Act, Maritime Law, and FELA....................18
3. The Trend Among the States.....................22
4. Public Policy Considerations...................24
B. Alternative Vehicles Suggested by Defendants to
Dispose of the Claims...............................25
1. Ohio Asbestos Litigation Reform Act............25
2. Administrative Order No. 8.....................28
C. Applying Maritime Law to Instant Claims.............30
V. CONCLUSION...............................................31
Case 2:02-md-00875-ER Document 1754 Filed 08/07/12 Page 1 of 32
I. INTRODUCTION
Before the Court are 5,464 motions to dismiss in
approximately 2,672 cases that are part of MDL 875, the1
consolidated asbestos products liability multidistrict litigation
pending in the District Court for the Eastern District of
Pennsylvania.
All of the Plaintiffs whose cases are subject to the2
present motions to dismiss are or were merchant marine seamen
during the time of their alleged exposures to asbestos. Some
claims are Jones Act claims under 46 U.S.C. §§ 30101-30106
(2006), while others sound in general maritime law. 3
Most cases on the maritime docket involve multiple1
defendants, and in some cases more than one defendant filed a
motion to dismiss.
Plaintiffs in these cases include former merchant2
marines, representatives, survivors, and spouses (“Plaintiffs” or
“the MARDOC Plaintiffs”).
The Jones Act states, in relevant part:3
A seaman injured in the course of employment or, if
the seaman dies from the injury, the personal
representative of the seaman may elect to bring a
civil action at law, with the right of trial by
jury, against the employer. Laws of the United
States regulating recovery for personal injury to,
or death of, a railway employee apply to an action
under this section.
46 U.S.C. § 30104 (supp. 2011). While several moving
Defendants are employers against whom Jones Act claims could be
brought, others, such as Crane Co., are manufacturing Defendants.
Under the plain language of the statute, Jones Act claims cannot be
brought against manufacturing Defendants. Rather, Plaintiffs’
claims against manufacturing Defendants are general maritime law
2
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Defendants in these cases fall into three categories: “(1)
ship owners or ship operators of the vessels on which the injured
parties were employed; (2) product manufacturers whose
asbestos-containing products were used aboard those vessels; and
(3) railroad companies whose railcars were transported on those
vessels.” Pls.’ Resp. in Opp’n at 3, No. 02-875 (E.D. Pa. Feb. 8,
2012), ECF No. 729.
II. BACKGROUND
These motions to dismiss have been filed in cases that are
on the Court’s MDL 875 maritime docket (“MARDOC”). The MARDOC
cases account for approximately 3,500 cases in MDL 875, the
largest group of cases that still remains on this multidistrict
litigation docket.
On June 27, 2011, the MARDOC cases were referred to the
Honorable Elizabeth T. Hey, U.S. Magistrate Judge, for oversight
and supervision. On October 4, 2011, both Judge Eduardo C.
Robreno and Magistrate Judge Hey signed Administrative Order No.
25 (“AO 25”), with the goal of “facilitat[ing] the expeditious4
claims. For purposes of the legal questions before the Court today,
this is a distinction without a difference.
AO 25 is available at:4
http://www.paed.uscourts.gov/documents/MDL/MDL875/AO25%20(MARDOC%
20ONLY).pdf
3
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movement of pending cases on the MDL 875 (MARDOC) docket[,]” some
of which had been pending for more than twenty years. 5
AO 25 was created with the goal of streamlining the MARDOC
litigation in light of the vast number of cases on the MARDOC
docket, and in designing AO 25, the Court used as a model the
relevant parts of Amended Administrative Order No. 12 (“AO 12”).6
AO 25 sets forth not only procedural and filing requirements, but
also ordered that by October 17, 2011, Plaintiffs’ counsel were
to file a “certification in each plaintiff’s case that they have
provided all defense counsel in that case (1) a copy of the
medical report or opinion containing a physician’s diagnosis of
the plaintiff with the asbestos-related disease or injury alleged
in the complaint.” Admin. Order No. 25 at § B(2), No. 02-875
(E.D. Pa. Oct. 5, 2011), ECF No. 552 [hereinafter “AO 25”].
Therefore, Defendants in the present cases have been in
possession of Plaintiffs’ medical reports or opinions since
October 17, 2011, or earlier.
The MARDOC docket has a long and tortuous history. The5
docket originally consisted of approximately 54,000 cases and
millions of claims filed primarily in the Northern District of
Ohio. The cases were placed in suspense and lay dormant for
several years before being transferred to MDL 875 where, in 2008,
cases were brought onto the active docket. Since then, the cases
have been subject to intense administrative efforts that have led
to the settlement or voluntary dismissal of the vast majority of
the cases. Approximately 3,500 of the original 54,000 cases
remain active.
AO 12 is available at6
http://www.paed.uscourts.gov/documents/MDL/MDL875/adord12.pdf.
4
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Section (B)(4) of AO 25 is entitled, “Defense Motions as to
Choice of Law and Compensability of Claims.” Under this section,
Defendants could argue by way of motions to dismiss that the
asbestos-related injuries alleged by Plaintiffs are non-
cognizable as a matter of law. Defendants were instructed to, in
any motions to dismiss, address the law that applies to each
Plaintiff’s claim against each Defendant, in addition to
discussing the law that applies to cognizable injuries.7
The history of how this section of AO 25 came to be7
provides helpful background information. Judge Robreno signed
Amended Administrative Order No. 12 on September 3, 2009. It
requires certain submissions by plaintiffs in MDL 875. Although
it specifically does not apply to MARDOC cases, see Amended
Admin. Order No. 12 at § 8, No. 01-875 (E.D. Pa. Sept. 3, 2009),
ECF No. 6645 [hereinafter “AO 12”], AO 12 has played an important
part in streamlining the litigation of land-based asbestos cases
in the MDL Court. In addition to requiring plaintiffs to submit
information including lists of remaining viable defendants, the
status of the case, and any related court actions, AO 12 requires
the submission of “the medical diagnosing report or opinion upon
which the plaintiff now relies for the prosecution of the claims
as if to withstand a dispositive motion.” The report or opinion
submitted pursuant to AO 12 must “be based upon objective and
subjective data which shall be identified and descriptively set
out within the report or opinion.” AO 12 § 4. Similar
requirements have been increasingly used in multi-party, multi-
jurisdictional mass tort cases. See, e.g., In re Silica Prods.
Liab. Litig., 398 F. Supp. 2d 563, 575 & n.18 (S.D. Tex. 2005)
(citing Order No. 4, which required each plaintiff to create a
specific Fact Sheet); Lore v. Lone Pine Corp., No. L–03306–85,
1986 WL 637507, 1986 N.J.Super. LEXIS 1626 (N.J. Sup. Ct. Nov.
18, 1986) (requiring plaintiffs in mass tort litigation to
provide, inter alia, “[r]eports of treating physicians and
medical or other experts, supporting each individual plaintiff’s
claim of injury and
causation”).
5
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Defendants have done just that. These motions to dismiss are
presently before the Court.8
There are two overarching issues before the Court. First,
the Court must determine which law applies to the present
maritime docket cases: maritime law or a given state’s law (for
example, Ohio law). For reasons discussed herein, the Court finds
that maritime law, rather than a given state’s law, applies to
all of these cases.
Second, the Court must decide when, under maritime law
(including the Jones Act), a seaman is deemed to be “injured” as
In responding to AO 25, Defendants who filed motions to8
dismiss in these cases attached lists of cases to which their
motions applied. The motions and case lists vary in the
categories of cases that they contain. For example, Defendant
Crane Co. filed its motion to dismiss in the cases of Plaintiffs
who Crane Co. contends have asymptomatic, non-malignant
conditions, which Crane Co. lists in its Exhibit A. See Mot. to
Dismiss of Def. Crane Co. at Ex. A, No. 02-875 (E.D. Pa. Jan. 9,
2012), ECF No. 640. Crane Co. also filed its motion to dismiss in
cases in which Plaintiffs have lung cancer that Crane Co.
contends is related to smoking, which are listed in Crane Co.’s
Exhibit E. See id. at Ex. E. Meanwhile, “Multiple Shipowner
Defendants Represented by Thompson Hine LLP” filed two separate
motions to dismiss: one for cases in which Plaintiffs have “non-
malignancies” and “smoking lung cancers,” see Mot. to Dismiss of
Multiple Shipowner Defs. at Ex. 1, No. 02-875 (E.D. Pa. Jan. 9,
2012), ECF No. 637, and another for “asymptomatic pleural
changes,” see Mot. to Dismiss of Multiple Shipowner Defs. at Ex.
1, No. 02-875 (E.D. Pa. Jan. 9, 2012), ECF No. 638.
Plaintiffs failed to respond directly to each motion to
dismiss that had corresponding case lists. Rather, Plaintiffs
filed one Response in Opposition to all of Defendant’s motions to
dismiss on the main MDL 875 docket (2:01-md-00875). No case lists
were attached. See AO 25 § A(4) (listing procedures for parties
to follow when filing an identical motion or pleading to numerous
cases, and requiring case lists in chronological order).
6
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a result of his alleged exposure to asbestos, such that he has a
cognizable claim. The Court today decides that a seaman without
physical impairments resulting from asbestos exposure, including
one who manifests only pleural changes, has not suffered an9
“injury” under maritime law, and therefore has no cognizable
claim.
The Maryland Court of Appeals, the state’s highest9
court, included a helpful description of pleural changes in one
of its seminal opinions regarding the cognizability of such
claims:
Pleural plaques and pleural thickening result from
the scarring of the pleura, the thin membrane that
keeps the lungs contained and configured to the
chest wall and diaphragm. When asbestos fibers are
inhaled into the lungs, they may pierce through the
smallest airways into the pleura. The fibers that
reach the pleura cause a localized reaction which
results in a deposit of scar tissue. When the
scarring of the pleura is localized, it is known
simply as a pleural plaque. When the scarring is
widespread, it is referred to as pleural thickening.
All of the medical experts agreed that pleural
plaques and pleural thickening are an alteration of
an otherwise healthy pleura. They also agreed that
pleural scarring does not constitute any loss or
detriment. Appellants’ two medical experts often
used the word “injury” to describe pleural scarring,
yet they testified that pleural plaques and pleural
thickening 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.
Owens-Illinois v. Armstrong, 591 A.2d 544, 560 (Md. Ct. Spec.
App. 1991) aff’d in relevant part, rev’d in part sub nom.
Owens-Illinois, Inc. v. Armstrong, 604 A.2d 47 (Md. 1992).
7
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As set forth in Exhibits “A” and “B” to the accompanying
Order, the Court will grant Defendants’ motions to dismiss the
claims of Plaintiffs who have suffered no physical impairments10
-- including those who manifest only pleural changes. See Ex.
“A.” The Court will deny Defendants’ motions to dismiss the
claims of Plaintiffs who have asbestos-related malignant or
symptomatic physical injuries, such as lung cancer. See Ex. “B.”
The Court has incorporated Defendants’ case lists into Exhibits
“A” and “B,” as Plaintiffs failed to provide any case lists to
the Court in connection with their opposition to Defendants’
motions to dismiss. See supra n.8. To the extent that Plaintiffs
believe that the cases of symptomatic Plaintiffs -- for example,
Plaintiffs who suffer from physical impairments and do not have
solely pleural changes -- are included in Exhibit “A,” but should
properly be included in Exhibit “B,” Plaintiffs shall have thirty
days following the date on which the order accompanying this
opinion is entered in which to show cause why the medical records
and evidence that they previously have submitted pursuant to AO
25 support reopening the cases of those specific Plaintiffs and
classifying their injuries as symptomatic and related to asbestos
Plaintiffs who have been exposed to asbestos, but have10
suffered no physical impairments, are sometimes referred to as
“exposure-only plaintiffs.” See Carlough v. Amchem Prods., Inc.,
834 F. Supp. 1437, 1447 (E.D. Pa. 1993).
8
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exposure. Defendants shall then have fifteen days in which to
contest or challenge such medical records and evidence.
III. LEGAL STANDARD
A. Motion to Dismiss
A party may move to dismiss a complaint for failure to state
a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When considering such a motion, the Court must “accept
as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the non-moving party.” DeBenedictis v.
Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007)
(internal quotation marks omitted). To withstand a motion to
dismiss, the complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). This “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. Although a
plaintiff is entitled to all reasonable inferences from the facts
alleged, a plaintiff’s legal conclusions are not entitled to
deference and the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986).
9
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The pleadings must contain sufficient factual allegations so
as to state a facially plausible claim for relief. See, e.g.,
Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d
Cir. 2009). “‘A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). In deciding a Rule 12(b)(6) motion, the Court
is to limit its inquiry to the facts alleged in the complaint and
its attachments, matters of public record, and undisputedly
authentic documents if the complainant’s claims are based upon
these documents. See Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension Benefit Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
B. Applicability of Maritime Law
Jones Act and un-seaworthiness cases fall within the
district court’s admiralty jurisdiction. See O’Donnell v. Great
Lakes Dredge & Dock Co., 318 U.S. 36, 41 (1943) (finding that a
seaman’s Jones Act suit for injuries incurred during the course
of his employment is within maritime jurisdiction); Thomas J.
Schoenbaum, 1 Admiralty & Mar. Law § 5-1 (5th ed. 2011) (“With
admiralty jurisdiction comes, in general, the applicability of
10
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maritime law. This is true even for maritime cases brought under
diversity jurisdiction.”).
Whether maritime law is applicable is a threshold dispute
that is a question of federal law, see U.S. Const. art. III, § 2;
28 U.S.C. § 1333(1) (2006), and is therefore governed by the law
of the circuit in which this MDL court sits. See Various
Plaintiffs v. Various Defendants (“Oil Field Cases”), 673 F.
Supp. 2d 358, 362 (E.D. Pa. 2009)(Robreno, J.). This court has
previously set forth guidance on this issue. See Conner v. Alfa
Laval, Inc., 799 F. Supp. 2d 455 (E.D. Pa. 2011) (Robreno, J.).
For maritime law to apply, a plaintiff’s exposure underlying
a products liability claim must meet both a locality test and a
connection test. Id. at 463-66 (discussing Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)).
The locality test requires that the tort occur on navigable
waters or, for injuries suffered on land, that the injury be
caused by a vessel on navigable waters. Id. In assessing whether
work was on “navigable waters” (that is, was sea-based), the
Supreme Court has found that work performed aboard a ship that is
docked at the shipyard is sea-based work, performed on navigable
waters. See Sisson v. Ruby, 497 U.S. 358, 360 (1990). This Court
has previously clarified that sea-based work includes work aboard
a ship that is in “dry dock.” See Deuber v. Asbestos Corp. Ltd.,
No. 10-78931, 2011 WL 6415339, at *1 n.1 (E.D. Pa. Dec. 2, 2011)
11
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(Robreno, J.) (applying maritime law to ship in “dry dock” for
overhaul). By contrast, work performed in other areas of the
shipyard, or on a dock, is land-based work. The connection test
requires that the incident could have “‘a potentially disruptive
impact on maritime commerce,’” and that “‘the general character’
of the ‘activity giving rise to the incident’ shows a
‘substantial relationship to traditional maritime activity.’”
Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S. at 364, 365,
and n.2).
1. Locality Test
If a service member in the Navy performed some work at
shipyards or on docks as opposed to onboard a ship on navigable
waters, “the locality test is satisfied as long as some portion
of the asbestos exposure occurred on a vessel on navigable
waters.” Conner, 799 F. Supp. 2d at 466; Deuber, 2011 WL 6415339,
at *1 n.1. If, however, the worker never sustained asbestos
exposure onboard a vessel on navigable waters, then the locality
test is not met and state law applies.
2. Connection Test
When a worker whose claims meet the locality test was
primarily sea-based during his asbestos exposure, his claims will
almost always meet the connection test necessary for the
12
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application of maritime law. Conner, 799 F. Supp. 2d at 467-69
(citing Grubart, 513 U.S. at 534). This is particularly true in
cases in which the exposure occurred as a result of the
claimant’s working aboard Navy vessels. See id. But if the
worker’s exposure was primarily land-based, then, even if the
claims could meet the locality test, they do not meet the
connection test and state law (rather than maritime law) applies.
Id.
C. Applicability of Federal Procedural Law
Federal courts have “original jurisdiction, exclusive of the
courts of the States,” over “[a]ny civil case of admiralty or
maritime jurisdiction[.]” 28 U.S.C. § 1333(1) (2006). And, in
matters requiring the interpretation of the Constitution, a
federal law, or a federal rule of procedure, a transferee court
applies the law of the circuit where it sits. Therefore, in cases
where jurisdiction is based on federal question -- including
maritime law –- this Court, as the transferee court, will apply
federal law as interpreted by the Third Circuit. Oil Field Cases,
673 F. Supp. 2d at 362-63.
This Court has noted that “the applicability of maritime
jurisdiction results in federal maritime law displacing state
13
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law.” Conner, 799 F. Supp. 2d at 460. Although maritime law is11
“an amalgam” of various rules, the Third Circuit has directed
that for cases that sound in maritime law, a federal district
court “need not look to the general choice of law rules
articulated in Erie.” Gibbs v. Carnival Cruise Lines, 314 F.3d
125, 129 (3d Cir. 2002) (citing Erie R.R. Co. v. Tompkins, 304
U.S. 64, 64 (1938)). In fact, “if the case sounds in admiralty,
it would be inappropriate to apply . . . [any] state’s law,
instead of federal admiralty law.” Id. at 131 (emphasis added).
This rule applies regardless of whether the district court’s
jurisdiction was originally based upon diversity or upon
admiralty jurisdiction. Id. at 132.
In Gibbs, the Court of Appeals for the Third Circuit
addressed the issue of whether federal law or state law applied
to determine the procedures for establishing a guardian ad litem
for a minor who was injured on a cruise ship on navigable waters.
Id. at 128. The minor’s domicile was in New Jersey, and the
district court had jurisdiction based on diversity of citizenship
under 28 U.S.C. § 1332. However, because the minor was injured
aboard the cruise ship at sea, the Court of Appeals concluded
However, maritime law does not necessarily differ from11
state law in every case. In fact, in some respects, maritime law
incorporates state law. See E. River S.S. Corp. v. Transamerica
Delaval, Inc., 476 U.S. 858, 864-65 (1986) (“Drawn from state and
federal sources, the general maritime law is an amalgam of
traditional common-law rules, modifications of those rules, and
newly created rules.” (internal footnote omitted)).
14
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that “this case sounds in admiralty,” and that therefore, “we
apply federal admiralty law and not the law of New Jersey or any
other state.” Id. at 132 (emphasis added). Thus, the Court of
Appeals found that the Federal Rules of Civil Procedure, and not
the New Jersey Court Rule pertaining to the appointment of
guardians ad litem, applied. Id. at 129. That the district court
took the case “under diversity jurisdiction, rather than
admiralty jurisdiction under 28 U.S.C. § 1333,” did not affect
the Court of Appeals’ determination. Id. at 132.
IV. DISCUSSION
Supreme Court jurisprudence teaches that maritime law is
“[d]rawn from state and federal [authorities],” and accordingly,
“the general maritime law is an amalgam of traditional common-law
rules, modifications of those rules, and newly created rules.” E.
River S.S. Corp., 476 U.S. at 864-65 (internal footnote omitted).
With this command in mind, the Court will canvass authorities
applying the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.
§§ 51-60 (2006), state court decisions, and notions of sound
public policy, see id., to arrive at an appropriate rule of
decision.
15
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A. Non-Cognizability of Asymptomatic Conditions
1. Connections Between the Jones Act, Maritime Law
and FELA
FELA is a federal statute that “holds railroads liable for
employees’ injuries ‘resulting in whole or in part from [carrier]
negligence.’” CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2632
(2011) (citing 45 U.S.C. § 51). FELA and the Jones Act are
closely related, as both statutes allow employees -- railroad
employees or seamen, respectively -- to sue their employers for
damages if they are injured “while acting within the course of
their employment[,]” and if their employers have been negligent.
John A. Bourdeau & Theresa L. Kruk, Annotation, Recovery for
negligent or intentional infliction of emotional distress under
Jones Act (46 U.S.C.A. Appx. § 688) or under Federal Employers’
Liability Act (45 U.S.C.A. §§ 51 et seq.), 123 A.L.R. Fed. 583
(1995). Therefore, cases decided under FELA provide a helpful
starting point for analyzing Jones Act and maritime law cases, in
that the Jones Act incorporates the jurisprudence developed under
FELA, and, in turn, maritime law incorporates the teachings of
the Jones Act.
The interconnectedness between FELA and the Jones Act has
been noted by the Supreme Court, which held that “the Jones Act
adopts ‘the entire judicially developed doctrine of liability’
under the Federal Employers’ Liability Act (FELA).” See, e.g.,
Am. Dredging Co. v. Miller, 510 U.S. 443, 456 (U.S. 1994)
16
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(quoting Kernan v. Am. Dredging Co., 355 U.S. 426, 439 (1958))
(applying the Jones Act and noting that the Jones Act and FELA
each has a “uniformity requirement” that requires state courts to
apply a uniform federal law).
Additionally, the Supreme Court has noted that “the
principles governing” FELA cases “clearly should apply” to Jones
Act cases. Kernan, 355 U.S. 426, 439 (1958). Like maritime law
jurisprudence, “FELA jurisprudence gleans guidance from
common-law developments[.]” Consol. Rail Corp. v. Gottshall, 512
U.S. 532, 541 (1994) (citing Atchison, Topeka & Santa Fe Ry. Co.
v. Buell, 480 U.S. 557, 568 (1987)). This is because, in
developing both the Jones Act and FELA, “instead of a detailed
statute codifying common-law principles, Congress saw fit to
enact a statute of the most general terms, thus leaving in large
measure to the courts the duty of fashioning remedies for injured
employees in a manner analogous to the development of tort
remedies at common law.” Kernan, 355 U.S. at 432. Congress
intended neither the Jones Act nor FELA to be a “static remedy,
but one which would be developed and enlarged to meet changing
conditions and changing concepts of industry’s duty toward its
workers.” Id.
As for the relationship between the Jones Act and general
maritime law, the Jones Act “does not disturb seamen’s general
maritime claims for injuries resulting from unseaworthiness . . .
17
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. Rather, the Jones Act establishes a uniform system of seamen’s
tort law parallel to that available to employees of interstate
railway carriers under FELA.” Miles v. Apex Marine Corp., 498
U.S. 19, 29 (1990) (citing Pacific S. S. Co. v. Peterson, 278
U.S. 130, 139 (1928)).12
2. Requirement of an “Injury” under the Jones Act,
Maritime Law, and FELA
Under the Jones Act, a “seaman injured in the course of
employment . . . may elect to bring a civil action . . . against
the employer.” 46 U.S.C. § 30104 (2006). Further, laws
“regulating recovery for personal injury to . . . a railway
employee apply to an action under this section.” Id. The plain
language of the statute requires “personal injury” to maintain a
claim for damages.
When matters of maritime law are not covered by a statute
such as the Jones Act, “the general maritime law,” also known as
maritime common law, applies. Thomas J. Schoenbaum, 1 Admiralty &
Mar. Law § 5-1 (5th ed. 2011). Common law traditionally has not
There are important differences between general12
maritime law and the Jones Act, in certain respects. See, e.g.,
Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 452-53 (1st Cir.
1996) (noting that a Jones Act claim requires a showing of
negligence, while a general maritime un-seaworthiness claim
requires no showing of fault). However, for purposes of the legal
questions before the Court (for example, what constitutes an
“injury”), it is not necessary to analyze the Jones Act
separately from general maritime law. The text of the Jones Act
requires an injury, as does maritime common law.
18
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compensated “purely economic harms” absent personal injury,
except in certain circumstances such as “natural-resource
damage.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 508 (2008)
(citing Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449
(1925); K. Abraham, Forms and Functions of Tort Law 247–48 (3d
ed. 2007)). The rule that claims of economic harms only, without
personal injury, are non-cognizable applies in the maritime
context. Id.
In Schweitzer v. Consolidated Rail Corp., the Third Circuit,
applying FELA law, found that “subclinical injury resulting from
exposure to asbestos is insufficient to constitute the actual
loss or damage to a plaintiff’s interest required to sustain a
cause of action under generally applicable principles of tort
law.” 758 F.2d 936, 942 (3d Cir. 1985). The Court noted that it
would be “undesirable” to have a rule that would allow exposure-
only plaintiffs without actual loss or damage to proceed with
their claims “in the asbestos-related tort context.” Id. at 942.
Although Schweitzer involved claims under FELA, the Third13
The specific issue involved in the case was whether the13
plaintiffs, who alleged exposure to asbestos prior to their
employer’s bankruptcy filing and reorganization, but did not
manifest any injury until after the reorganization, had “claims”
against the employer that were discharged in the bankruptcy
proceedings. Id. at 941. The Court found that such plaintiffs did
not have (indeed, could not have had) claims that were discharged
in the bankruptcy proceedings, because they suffered no physical
manifestations of asbestos exposure prior to the bankruptcy
proceedings. Their actual exposure to asbestos did not constitute
an injury that would have allowed them to assert a claim against
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Circuit’s rationale and policy considerations are equally
applicable to the instant cases:
If mere exposure to asbestos were sufficient to give
rise to a F.E.L.A. cause of action, countless
seemingly healthy railroad workers, workers who might
never manifest injury, would have tort claims
cognizable in federal court. It is obvious that proof
of damages in such cases would be highly speculative,
likely resulting in windfalls for those who never take
ill and insufficient compensation for those who do.
Requiring manifest injury as a necessary element of an
asbestos-related tort action avoids these problems and
best serves the underlying purpose of tort law: the
compensation of victims who have suffered. Therefore
we hold that, as a matter of federal law, F.E.L.A.
actions for asbestos-related injury do not exist
before manifestation of injury.
Id. Schweitzer cited favorably to Urie v. Thompson, 337
U.S. 163 (1949), which held that a FELA action for personal
injury resulting from the inhalation of silica dust does not
accrue until a “silica-related injury manifests itself.” 758 F.2d
at 941 (citing Urie, 337 U.S. at 170). Specifically, in Urie, the
Supreme Court had found that, for statute-of-limitations
purposes, an employee “‘can be held to be “injured” only when the
accumulated effects of the deleterious substance manifest
themselves.’” Urie, 337 U.S. at 170 (quoting Associated Indem.
Corp. v. Indus. Accident Comm’n, 12 P.2d 1075, 1076 (Cal. Ct.
App. 1932)). The Court did not elaborate on what “manifest
themselves” meant, but it found that the statute of limitations
the employer.
20
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for the plaintiff’s claim began to run approximately when he was
diagnosed with silicosis in the weeks following his becoming too
ill to work. Id. Therefore, the logical inference from the
Court’s statement is that the plaintiff was “injured” when the
effects of his earlier silica exposure “manifested themselves” by
making him so ill that he could not work. Put another way, the
plaintiff was not yet “injured” prior to the time that he became
physically ill.
In Zulkowski v. Consolidated Rail Corp., 852 F.2d 73 (3d
Cir. 1988), the Third Circuit revisited its holding in
Schweitzer, solidifying the rule that plaintiffs who suffer no
actual loss or damage from asbestos exposure cannot maintain
their claims. In Zulkowski, also a FELA case, the Court noted
that “a subclinical injury from asbestos exposure is an
insufficient basis on which to maintain a tort action[,] as a
party does not suffer an actual loss or damage from such an
injury.” Id. at 76. It follows that “manifest injury is a
prerequisite for an FELA action for an asbestos-related injury.”
Id. (finding railroad-employer liable to former employee under
FELA, the Bankruptcy Act, and the Rail Act, when plaintiff
developed asbestosis after his retirement and after employer had
reorganized under the bankruptcy code; reorganized entity had not
been relieved of liabilities of prior entity).
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3. The Trend Among the States
Examining the general trend among the states is also helpful
in determining whether physical injury is a prerequisite to
liability for asbestos exposure under maritime law.
Recently, this Court predicted that the Supreme Court of
Illinois would not find asymptomatic asbestos-related exposures
-- including asymptomatic pleural changes -- to be cognizable
under Illinois law. In re Asbestos Products Liab. Litig. (No.
VI), 278 F.R.D. 126, 134-35 (E.D. Pa. 2011) (Robreno, J.).
The Court noted that “[t]he emerging trend in asbestos
litigation around the country is not helpful to Plaintiffs. All
signs in this mature litigation point to the treatment of pleural
plaques and pleural thickening as non-cognizable, unless and
until plaintiffs exhibit physical impairments or malignancies.”
Id. (citing In re Hawaii Federal Asbestos Cases, 734 F. Supp.
1563, 1567 (D. Hawaii 1990) (holding that “the mere presence of
asbestos fibers, pleural thickening or pleural plaques in the
lung unaccompanied by an objectively verifiable functional
impairment” is not cognizable); AlliedSignal, Inc. v. Ott, 785
N.E.2d 1068, 1075 (Ind. 2003) (holding that, under Indiana law,
claims of asymptomatic pleural plaques and pleural thickening are
not actionable); Armstrong, 591 A.2d at 560-61 (Md. Ct. Spec.
App. 1991), aff’d in part, rev’d in part on other grounds, 604
A.2d 47 (Md. 1992) (holding that pleural plaques and pleural
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thickening do not cause detriment and are not legally compensable
injuries); Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996)
(holding that “asymptomatic pleural thickening is not a
compensable injury”); Giffear v. Johns-Manville Corp., 632 A.2d
880, 884 (Pa. Super. 1993) (holding that, under Pennsylvania law,
“pleural thickening, absent disabling consequences or manifest
physical symptoms, is a non-compensable injury and is therefore
not a cognizable claim”)).
Other state courts also have recognized that asymptomatic
asbestos-related conditions are not actionable under their
respective jurisprudence. See, e.g., Burns v. Jaquays Min. Corp.,
752 P.2d 28, 30-31 (Ariz. Ct. App. 1987) (quoting Schweitzer, 758
F.2d at 942) (“subclinical injury resulting from exposure to
asbestos is insufficient to constitute the actual loss or damage
to a plaintiff’s interest required to sustain a cause of
action”); Bowerman v. United Illuminating, No. X04CV 940115436S,
1998 WL 910271, at *5 (Conn. Super. Ct. Dec. 15, 1998) (finding
that asymptomatic pleural changes were not actionable when
plaintiffs presented no evidence of physical symptoms); Bernier
v. Raymark Indus., Inc., 516 A.2d 534, 543 (Me. 1986),
(subclinical injury is not an actionable injury under tort law
“even assuming that any inhalation of asbestos dust immediately
causes microscopic injury to lung tissues”); Ford Motor Co. v.
Miller, 260 S.W.3d 515, 517 (Tex. App. 2008) (applying Michigan
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law and reversing plaintiff’s jury award when plaintiff had only
asymptomatic pleural changes, as “Michigan law is clear that
negligence recovery must be based on a present injury, not the
fear of a speculative future injury”); Ackison v. Anchor Packing
Co., 897 N.E.2d 1118, 1126 (Ohio 2008) (“This court has never
held that asymptomatic pleural thickening is, by itself,
sufficient to establish a compensable injury for asbestos
exposure.”); Solberg v. Tice Elec., 157 P.3d 1277, 1278 (Or. Ct.
App. 2007) (claimant with asymptomatic pleural plaques “does not
currently suffer from a disease” under Oregon workers’
compensation law, as pleural plaques require no medical treatment
and do not impair vital functions).
Finally, the Court notes that Plaintiffs have not brought to
the Court’s attention any cases where a plaintiff claiming
asbestos exposure who was asymptomatic and unimpaired could
maintain a claim under state law.
4. Public Policy Considerations
Allowing 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. See generally Francis E. McGovern, The Tragedy of
the Asbestos Commons, 88 Va. L. Rev. 1721, 1744-49 (2002)
(discussing disparate settlement and jury verdict amounts that
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certain plaintiffs with various diseases have received, and the
limited funds available in asbestos litigation given that many
defendants have filed for bankruptcy or ceased to exist); Francis
E. McGovern, Resolving Mature Mass Tort Litigation, 69 B.U. L.
Rev. 659, 660 (1989) (stating that “fairness--values of
predictability, rationality, and equality of opportunity and
strategy” are at issue in mass tort litigation).
As noted by the Third Circuit in the context of FELA case
law, to find otherwise would constitute a windfall to those
plaintiffs who did not later develop an asbestos-related disease,
while at the same time potentially diluting funds for the
plaintiffs who are seriously injured at present. See, e.g.,
Schweitzer, 758 F.2d at 942.
B. Alternative Vehicles Suggested by Defendants to Dispose
of the Claims
1. Ohio Asbestos Litigation Reform Act
Defendants argue that, because most of the instant cases
were filed originally in the Northern District of Ohio, this
Court should apply the Ohio Asbestos Litigation Reform Act (“the
Act”), Ohio Rev. Code Ann. §§ 2307.91-2307.93 (West 2004), to the
instant cases. Under Ohio law, according to Defendants, these
cases -- including both lung cancer claims and asymptomatic
condition claims -- would be dismissed because Plaintiffs have
failed to comply with the procedural requirements set forth in
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the Act.
Defendants argue that, even if maritime substantive law
(rather than Ohio law) applies to this case, it is within the
Court’s discretion to adopt state procedural rules such as the
Ohio law. This, Defendants argue, would help to streamline the
litigation, conserve resources, and further all other goals
announced by the Ohio legislature in enacting that legislation.14
As the MARDOC cases sound in maritime law, maritime law
applies, and thus, neither state substantive nor procedural laws
are relevant to these cases. In cases where jurisdiction is15
Defendants argue that cases in the following categories14
must be dismissed for failure to comply with the Ohio procedural
law: (1) “non-malignant” cases, and (2) cases in which Plaintiffs
have “asymptomatic pleural changes.” Certain Defendants (though
not all), especially those who encouraged the Court to adopt
Ohio’s procedural rules, further argue that “smoking lung cancer”
cases should be dismissed. The basis for this argument is that
the relevant Ohio statute establishes strict bars to bringing
asbestos claims even when a plaintiff has lung cancer potentially
related to smoking in addition to asbestos exposure. See Ohio
Rev. Code Ann. § 2307.923 (West 2004).
Counsel for Defendants stated on the record during oral
argument that they did not file motions to dismiss based upon
non-cognizability of claims in cases in which Plaintiffs claim to
be suffering from mesothelioma. See Tr. at 10:22-11:17, 12:16-
12:21, No. 02-875 (E.D. Pa. April 26, 2012), ECF No. 1184.
It is true that, in cases where maritime law applies15
but the body of maritime law is not developed on the issue, the
federal court applying maritime law may “borrow” state law to
fill in the gap. See Marastro Compania Naviera, S.A. v. Canadian
Mar. Carriers, Ltd., 959 F.2d 49, 53 (5th Cir. 1992) (explaining
that “federal courts may borrow from a variety of sources in
establishing common law admiralty rules to govern maritime
liability where deemed appropriate[,]” but that “in the absence
of federal cases or an established federal admiralty rule . . .,
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based on federal question -- including cases sounding in maritime
law -- this Court, as the transferee court, will apply federal
substantive and procedural law as interpreted by the Third
Circuit. Oil Field Cases, 673 F. Supp. 2d at 362-63. It matters
not whether jurisdiction over these cases originally was based on
diversity of citizenship, or on federal question. Gibbs, 314 F.3d
at 132.
The Ohio Asbestos Litigation Reform Act is completely
inapplicable in the MARDOC cases, where the Court must apply
maritime substantive law and federal procedural law. Therefore,
it would be more appropriate to apply general common law rather
than state law which would impair the uniformity . . . of the
federal admiralty law”) (citations and internal quotation marks
omitted); Floyd v. Lykes Bros. Steamship Co., 844 F.2d 1044,
1047-49 (3d Cir. 1988) (borrowing state law concepts in holding
that ship’s captain had discretion to dispose of the dead body of
a seaman at sea, when maritime law was silent on the issue);
Conner v. Aerovox, Inc., 730 F.2d 835, 842 (1st Cir. 1984)
(“There is no question that federal courts may borrow from a
variety of sources[,]” including state law, “in establishing
common law admiralty rules to govern maritime law liability where
deemed appropriate.” (citation omitted)); Latin Amer. Prop. &
Cas. Ins. Co. v. Hi-Lift Marina, Inc., 677 F. Supp. 1156, 1159-60
(S.D. Fla. 1988) (applying state bailment principles in holding
that a marina had not breached its duty of care), vacated on
other grounds, 887 F.2d 1477 (11th Cir. 1989); Thomas J.
Schoenbaum, 1 Admiralty & Mar. Law § 4-1 (5th ed. 2011) (“When
new situations arise that are not directly governed by
legislation or admiralty precedent,” federal courts “may, and
often do, look to state statutory law and to precepts of the
common law which they ‘borrow’ and apply as the federal admiralty
rule.” (footnotes omitted)).
In this case, however, given the need for a uniform
rule of decision and the clear markers as to what that rule
should be, the Court opts for developing maritime law on the
issue rather than “borrowing” Ohio law.
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the Court declines to rely on the Ohio statute in ruling on
Defendants’ motions to dismiss.
2. Administrative Order No. 8
Certain Defendants argue that the MDL 875 Court should
reinstate Administrative Oder No. 8 (“AO 8”) for purposes of16
“administratively dismissing” MARDOC cases in which Plaintiffs
exhibit no asbestos-related physical symptoms and tolling the
relevant statutes of limitations.
The-presiding Senior Judge Charles R. Weiner entered
Administrative Order No. 8 on January 14, 2002. The objective of
AO 8 was to give priority to plaintiffs with serious medical
conditions, as opposed to plaintiffs who had no symptoms but who
nevertheless filed suit due to a fear of developing symptoms in
the future. As Judge Weiner noted, massive filings of new cases
were clogging the docket and taking time and money away from the
most seriously ill and most deserving plaintiffs.
The Order administratively dismissed “non-malignant,
asbestos related, personal injury cases . . . which were
initiated through a mass screening[.]” However, administratively
dismissed cases were technically kept on an active docket, and
plaintiffs could move to reinstate such cases. Administrative
AO 8 (which has been vacated) is available at:16
http://www.paed.uscourts.gov/documents/MDL/MDL875/adord8.pdf
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Order No. 8 noted that certain MARDOC cases were previously
dismissed without prejudice and their statutes of limitations
were tolled while the cases remained in a “special active status
category.”
Now-presiding Judge Eduardo C. Robreno vacated
Administrative Order No. 8 on July 17, 2009 when he signed
Administrative Order No. 19 (“AO 19”). AO 19 noted that “the17
problem of massive filings of new cases which would clog the
docket, taking time and money away from the most seriously ill or
most deserving plaintiffs” no longer existed in MDL 875. The
circumstances “justifying the entry of [AO 8]” had changed, and
“the efficient administration of MDL 875” was no longer served by
AO 8. AO 19 therefore ordered that all cases would be returned to
the active docket and reinstated.18
As all MARDOC cases are currently on the active docket, and
as none of the conditions that justified the implementation of AO
8 exist today, the Court will not reinstate AO 8, but rather will
continue to administer the MARDOC cases by adhering to its policy
AO 19 is available at:17
http://www.paed.uscourts.gov/documents/MDL/MDL875/adord19.pdf
When all cases had been returned to the active docket18
and reinstated, Judge Robreno signed Administrative Order No. 24,
available at
http://www.paed.uscourts.gov/documents/MDL/MDL875/Admin.%20Order%
2024.pdf, which vacated, inter alia, AO 19. At that point, all
cases had been returned to the active docket and reinstated, a
process that mooted AO 19.
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of one plaintiff, one case. AO 25 has been successful in moving
the litigation along, and should the need arise for another
MARDOC-specific administrative order, then the Court will proceed
accordingly.
C. Applying Maritime Law to the Instant Claims
As it is undisputed that the MARDOC Plaintiffs sustained
their alleged asbestos exposure while they were merchant marines
who performed tasks in connection with the operation and
maintenance of vessels while aboard vessels on navigable
waters, the locality and connection tests are satisfied in19
these cases, and the Court shall apply maritime law -- including
the Jones Act -- to Plaintiffs’ claims against Defendants.
The Court finds that under maritime law, including the Jones
Act, a seaman is not “injured” if he does not suffer physical
impairment resulting from asbestos exposure. Plaintiffs who have
only pleural changes are not “injured.” The Court excludes from
the “non-injured” category cancer claims, including claims
Indeed, Plaintiffs’ brief notes that “[t]he injured19
parties in this litigation group were all merchant marines who
sustained asbestos-related injuries during the course of their
employment aboard vessels on navigable waters.” Pls.’ Resp. in
Opp’n at 3, No. 02-875 (E.D. Pa. Feb. 8, 2012), ECF No. 729.
Plaintiffs further note that, “based on any argument to the
contrary by the Various Defendants and the overwhelming facts in
support of this determination, it is clear that maritime law
applies to the claims on this docket.” Id. at 3-4. Therefore,
there are no claims asserted under Ohio law.
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related to “smoking lung cancers,” and claims of Plaintiffs who
manifest physical injury related to their alleged asbestos
exposure. See Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 4 (2010) (“‘Physical harm’ means
the physical impairment of the human body (‘bodily harm’) . . . .
Bodily harm includes physical injury, illness, disease,
impairment of bodily function, and death.”) (emphasis added).
Plaintiffs who are injured cannot maintain claims against
Defendants.
Plaintiffs’ argument that an “injury” occurs as soon as one
inhales asbestos dust is unconvincing. See Tr. at 56:24-57:12,
No. 02-875 (E.D. Pa. April 26, 2012), ECF No. 1184. Although some
asbestos-related insurance cases support that position, such case
law focuses upon the interpretation of insurance policies
themselves, rather than on maritime law or the Jones Act in
particular. Thus, Plaintiffs’ argument fails.20
IV. CONCLUSION
For the reasons set forth above, Defendants’ 3,327 motions
to dismiss the claims of Plaintiffs without physical impairment
related to asbestos exposure will be GRANTED. This will result in
For example, the Court of Appeals for the Third Circuit20
has found that “exposure, exposure-in-residence, and
manifestation all constitute ‘bodily injury’ within the meaning
of the policies.” AC&S, Inc. v. Aetna Cas. & Sur. Co., 764 F.2d
968, 973 (3d Cir. 1985).
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the dismissal of 1,679 cases. Defendants’ 2,137 motions based on
Plaintiffs’ claims of symptomatic injuries, including lung and
other cancers, will be DENIED. To the extent that Plaintiffs
believe that the cases of symptomatic Plaintiffs are included in
Exhibit “A,” but should properly be included in Exhibit “B,”
Plaintiffs shall have thirty days following the date on which the
order accompanying this opinion is entered in which to show cause
why the medical records and evidence that they previously have
submitted pursuant to AO 25 support reopening the cases of those
specific Plaintiffs and classifying their injuries as symptomatic
and related to asbestos exposure. Defendants shall then have
fifteen days in which to contest or challenge such medical
records and evidence. An appropriate order follows.
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