                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2000

JoAnn Patenaude, et al.
Precedential or Non-Precedential:

Docket 99-1540




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Filed April 11, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1540

IN RE: JOANN PATENAUDE, et al.

Petitioners

On Petition for Writ of Mandamus from
Order Denying Motion to Remand of the
Judicial Panel on Multidistrict Litigation
(Related to D.C. No. MDL 875)

Argued January 28, 2000

BEFORE: GREENBERG, ROTH and STAPLETON,
Circuit Judges

(Opinion filed April 11, 2000)

       Steven R. Baughman (Argued)
       Baron & Budd
       3102 Oak Lawn Avenue
       The Centrum, Suite 1100
       Dallas, TX 75219
        and
       Jeffrey S. Mutnick
       Landye, Bennett, Blumstein
       3500 Wells Fargo Center
       1300 S.W. Fifth Avenue
       Portland, OR 97201
        Attorneys for Petitioners
R. Cornelius Danaher, Jr.
Danaher, Tedford, Lagnese & Neal
21 Oak Street
Suite 700, Capitol Place
Hartford, CT 06016
 and
James J. Restivo, Jr.
Reed, Smith, Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219-1886
 and
Andrew J. Trevelise
Reed, Smith, Shaw & McClay
1650 Market Street
2500 One Liberty Place
Philadelphia, PA 19103-7301
 Attorneys for Respondent
Pittsburgh Corning Corporation

Elizabeth R. Geise (Argued)
John D. Aldock
Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036-1872
 Attorneys for Respondents
Armstrong World Ind., Asbestos
Claims Mgt., Flexitallic Inc.,
Gaf Corp., Pfizer Inc., T&N PLC,
US Gypsum Co.

Robert H. Riley (Argued)
Schiff, Hardin & Waite
6600 Sears Tower
Chicago, IL 60606
 Attorney for Respondent
Owens Illinois, Inc.

                           2
OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioners are three groups of plaintiffs seeking damages
for personal injury and wrongful death as a result of
exposure to asbestos. Respondents are some of the
defendants in some of the cases brought by the plaintiffs.
The plaintiffs' claims were initially filed in the Northern
District of New York (the "New York plaintiffs"), the
Northern District of Georgia (the "Georgia plaintiffs") and
the District of Oregon (the "Oregon plaintiffs"). Pursuant to
28 U.S.C.   1407(a), the plaintiffs' claims were transferred
by the Judicial Panel on Multidistrict Litigation (JPML) to
Multidistrict Litigation No. 875 ("MDL No. 875"), which is
pending in the United States District Court for the Eastern
District of Pennsylvania (the "transferee court").

At various times during the past seven years, some of the
Oregon plaintiffs have filed motions for suggestion of
remand with the transferee court. The last such motion was
filed in May 1997. Receiving no response, in May 1998
counsel for the Oregon plaintiffs appeared before the JPML
to seek remand. On May 20, 1998, the JPML denied the
Oregon plaintiffs' motion to remand.

Some, but not all, of the New York plaintiffs filed motions
for a suggestion of remand with the transferee court in
March 1998. By October 1998, the transferee court still
had not acted on the motions, and ten of the New York
plaintiffs filed a motion for remand with the JPML. In
December, the New York plaintiffs filed a motion to clarify
explaining that the prior motion to remand sought remand
of all claims of all the New York plaintiffs, and not just the
ten who had originally filed.

Some, but not all, of the Georgia plaintiffs filed motions
for a suggestion of remand with the transferee court in
April and May of 1998. In September 1998, the transferee
court still had not acted on the motions for suggestion of
remand, and all of the Georgia plaintiffs filed a motion for
remand with the JPML. On February 5, 1999, the JPML

                               3
denied the New York and Georgia plaintiffs' motions for
remand.

On June 29, 1999, all of the plaintiffs filed a petition for
writ of mandamus asking this Court to order the JPML to
remand their cases. We will deny the petition.

The parties have submitted affidavits that establish the
following undisputed facts. The New York and Georgia
plaintiffs' injuries range from the invariably fatal cancer
mesothelioma, for which asbestos exposure is the only
known cause, to pleural disease, a non-malignant scarring
of the lining of the lung. Many have died from asbestos-
related injuries, a good number of them during the
pendency of MDL 875. The Oregon plaintiffs' injuries
include malignancies and non-malignancies.

Following the creation of MDL 875, plaintiffs' and
defendants' steering committees were organized that
attempted to negotiate a global settlement of all asbestos
claims. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
599-600 (1997). These negotiations, however, eventually
"fell apart." Id. at 600. The Plaintiffs' Steering Committee
(PSC) has not met since 1993, and has been completely
inactive.1 Subsequently, twenty defendants and certain
former members of the PSC proposed the settlement class
action that was at issue in Amchem. See id. at 600-01. The
Supreme Court, however, rejected the class certification
"[g]iven the greater number of questions peculiar to the
several categories of class members, and to individuals
within each category, and the significance of those
uncommon questions." Id. at 624.

The affidavits assert that during the seven year pendency
of MDL 875, "no common or global discovery has been
sought or conducted by either Plaintiffs or Defendants in
_________________________________________________________________

1. Although Defendant Owen-Illinois asserts that numerous members of
the PSC met with defendants' representatives in 1999 and discussed the
content of the master case management orders that various transferor
courts should enter into were MDL 875 to disband, that meeting was
never endorsed, organized or convened as a PSC gathering, nor was
correspondence regarding the meeting issued to the full membership of
the PSC, nor was it understood in advance that MDL 875 was even on
the agenda for the meeting.

                               4
this action, and no common questions of law or fact have
been the subject of global resolution by [the transferee]
Court." (A. 16-17). Since 1991, all discovery, settlement or
other litigation activity in MDL 875 has related either to the
Amchem class action or to individual claims or groups of
claims. In the past two years, the transferee court has
overseen broad discovery regarding litigation screening
companies, the physicians they employ, and the nature of
their contracts with plaintiffs' firms.

Since the creation of MDL 875, the New York and Georgia
plaintiffs have supplemented their answers to discovery on
several occasions including as recently as April 1998, when
they provided "updated information regarding their work
history and exposures to Defendants' asbestos-containing
products, and any new information regarding their medical
status."2 (A. 61). Their claims have also "been the subject of
numerous settlement conferences conducted by the
transferee court." (A. 61). Counsel for the New York and
Georgia plaintiffs have submitted sworn affidavits stating
that "with the exception of settlements of some plaintiffs'
cases with some defendants, the settlement discussions
have not resolved the cases." (A. 61). They further state that
"in many instances, Defendants have failed to generate any
monetary offer to settle Plaintiffs' cases; and in remaining
cases, the Defendants have failed to offer settlement
amounts that approach historical settlement values for
similar claims." (A. 61).

Summaries of the New York docket sheets, however,
reflect that individual plaintiffs have settled with anywhere
from one to eleven defendants for amounts ranging from
$3,500 to $739,136. The plaintiffs respond with an affidavit
explaining that these settlement figures are inaccurate, in
that they reflect gross amounts of settlement with the
Johns Manville bankruptcy trust, even though plaintiffs will
receive only ten per cent of that money, and in that they
occasionally reflect double counting of settlements. The
plaintiffs do not provide settlement information of their
own, however, and, even accounting for these inaccuracies,
the number and amount of settlements have in many cases
_________________________________________________________________

2. Their original answers were filed prior to the inception of MDL 875.

                               5
been substantial. Moreover, other additional settlements
may well have been signed, as the docket summaries show
significant delays (in some cases, five years) between
settlements being signed and their being entered on the
docket. See also In re Asbestos Prods. Liab. Litig., 1996 U.S.
Dist. LEXIS 13850, at *3 (E.D. Pa. Sept. 16, 1996) (of the
22,000 open cases on the docket in 1996, thousands were
resolved but not yet dismissed and statistically removed).
The New York docket summaries show that in each of the
New York plaintiffs' cases, anywhere from two to eighteen
defendants remain, with the average number being
approximately eleven.

Neither party has provided information regarding the
settlement status of the Georgia or Oregon plaintiffs'
individual claims. The plaintiffs do indicate that the Georgia
docket sheets show between one and five defendants
remaining on each individual claim. Also, counsel for the
Oregon plaintiffs indicates that prior to the establishment
of MDL 875 the average length of time for resolution of an
Oregon case was less than one year, whereas in MDL 875
the average exceeds five years. Although settlement
conferences were held regarding the Oregon cases in 1995,
1996 and either 1998 or 1999, plaintiffs' efforts at
settlement have been "to little avail." (A. 115-16).

The transferee court has stated, although not in the
context of the plaintiffs' particular claims, that among its
"overriding objectives" "[t]hroughout the course of the
multidistrict litigation" is the court's "considered judicial
opinion that the sick and dying, their widows and survivors
should have their claims addressed first." Carlough v.
Amchem, No. 93-215, at 8 (E.D. Pa. Apr. 15, 1993) (Mem.
Op.). The court explained that it "steadfastly resisted
motions to remand cases back to transferor courts unless
the claimant was seriously ill or dying and all avenues of
settlement were exhausted."3Id. The court has also
"advised counsel that motions to remand involving other
_________________________________________________________________

3. The court also has a practice when it does remand cases of severing
and retaining jurisdiction over punitive damages claims. (A. 59).
However, this has not happened in any of the plaintiffs' cases, and thus
is not an issue for consideration on this appeal.

                               6
circumstances would only serve to deplete resources
otherwise available for settlements and thus would be
routinely denied." Id.

The transferee court's Administrative Order No. 3, which
relates to all asbestos actions, reflects this policy. This
Order establishes that in attempting to resolve cases
through negotiation, cases of mesothelioma and lung
cancer with asbestosis will be "address[ed] . . . on a priority
basis." (A. 47-48). However, the court cautioned that
"special efforts to resolve hardship cases are not a
substitute for broad-based negotiations designed to reduce
docket the [sic] backlog." (A. 47). The Order establishes the
procedures for exchange of information and negotiation to
be followed in MDL 875. If this process does not produce a
resolution, "the Court shall determine whether the matter is
appropriate for immediate remand of the plaintiff 's
compensatory damages claims." (A. 50). The Order states
that only when all priority cases have been addressed will
the court consider applying similar procedures to address
cases of other malignant conditions and asbestosis and
that "[a]s to cases that involve non-malignant conditions
other than asbestosis, the Court intends to establish an
inactive docket." (A. 53).

This process has resulted in numerous cases being
resolved. As of late 1996, some 62,000 cases had been
assigned to MDL 875 and approximately 40,000 had been
resolved. See In re Asbestos Prods. Liab. Litig. (No. VI), 1996
U.S. Dist. LEXIS 13850, at *3 (E.D. Pa. Sept. 16, 1996)
(Mem. Op.). The remaining 22,000 cases included
thousands of cases that had been resolved but not yet
dismissed. See id. As of January 1999, nearly 60,000 cases
had been closed. See In re Asbestos Prods. Liab. Litig. (No.
VI), No. 875, at 2 (JPML Feb. 5, 1999) (unpublished order
denying remand). Thus, in 1997 and 1998, the transferee
court closed nearly 10,000 cases a year.

This process has also resulted in approximately 1,000
actions or claims being remanded to the transferor courts.
See id.

Plaintiffs' claims are all diversity actions brought in
federal district court under 28 U.S.C.   1332. These claims

                                7
were transferred by the JPML to the United States District
Court for the Eastern District of Pennsylvania pursuant to
28 U.S.C.    1407. The JPML had jurisdiction to consider
plaintiffs' motions to remand their actions to the transferor
courts under 28 U.S.C.    1407(a). This Court has
jurisdiction to review the JPML's denial of remand pursuant
to 28 U.S.C.    1407(e). Section 1407(e) provides that JPML
orders may be reviewed only by extraordinary writ pursuant
to 28 U.S.C.    1651.

I.

"Traditionally, the writ of mandamus has been used `to
confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.' " E.g., In re Chambers
Dev. Co., 148 F.3d 214, 223 (3d Cir. 1998) (quoting Will v.
Calvert Fire Ins. Co., 437 U.S. 665, 661 (1978)). "The writ is
a drastic remedy that `is seldom issued and its use is
discouraged.' " Id. (quoting Lusardi v. Lechner, 855 F.2d
1062, 1069 (3d Cir. 1988)). The writ of mandamus should
only be granted "in response to an act amounting to a
judicial usurption of power." Id. (quoting Hahnemann Univ.
Hosp. v. Edgar, 74 F.3d 456, 462 (3d Cir. 1996)).

Two prerequisites for issuance of a writ are: "(1) that
petitioner have no other adequate means to attain the
desired relief, and (2) that petitioner meets its burden of
showing that its right to the writ is clear and indisputable."
Id. (quoting Hahnemann Univ. Hosp., 74 F.3d at 462). The
petitioners have the burden of proving these two
prerequisites. See Mallard v. U.S. Dist. Court , 490 U.S. 296,
309 (1989). As to the first prong, where there are practical
avenues for seeking relief that are untried, this Court will
ordinarily deny a petition for mandamus. See Hahnemann
Univ. Hosp., 74 F.3d at 461 ("[W]here interlocutory appeal
seems a practical but untried avenue, we will ordinarily
deny a petition for mandamus."). However, formal
exhaustion of futile remedies is not required. See id. at 462
(granting mandamus despite petitioner's failure to make a
formal application for certification of an interlocutory
appeal where an informal application had been made and
not granted). As to the second prong, where a court

                               8
commits a clear error of law, a right to relief is clear and
indisputable. See Rhone-Poulenc Rorer Inc. v. Home Indem.
Co., 32 F.3d 851, 861 (3d Cir. 1994). Moreover, mandamus
can apply to discretionary acts where petitioners can
demonstrate a "clear abuse of discretion." Mallard, 490 U.S.
at 309.

"Even when these requirements are met, issuance of the
writ is largely discretionary . . . ." In re Chambers Dev. Co.,
148 F.3d at 223. "[I]t is within a court's discretion to refrain
from issuing the writ even when the requirements for
mandamus are technically satisfied. The availability of the
writ `does not compel its exercise.' " Id. (quoting Lusardi,
855 F.2d at 1070).

In the instant case, ordinary appeal is not available;
section 1407(e) provides that "[n]o proceedings for review of
the panel may be permitted except by extraordinary writ."
28 U.S.C.   1407(e). Nonetheless, some of the plaintiffs have
other practical means to obtain the relief sought. Those
plaintiffs who did not seek a suggestion of remand from the
transferee court before filing their motion to remand with
the JPML have a practical but untried avenue for relief
available to them. While it is true that plaintiffs are not
required to seek a suggestion of remand prior tofiling a
motion to remand with the JPML, see JPML Rule 7.6(c), the
JPML Rules state that "[t]he Panel is reluctant to order
remand absent a suggestion of remand from the transferee
district court." JPML Rule 7.6(d). In view of this reluctance
and the "great weight" that the Panel has consistently given
to the transferee judge's determination that remand is
appropriate, In re King Resources Co. Sec. Litig., 458 F.
Supp. 220, 222 (JPML 1978), it is possible that were the
plaintiffs to obtain a suggestion of remand from the
transferee court, the JPML would grant their motions for
remand.

The plaintiffs argue that there was no point in seeking a
suggestion of remand from the transferee court, given that
it had not issued such a suggestion for other plaintiffs
grouped in their respective cause numbers who did seek
such suggestions. They argue that the grounds for seeking
remand were identical for all petitioners. However, a
determination that coordinated or consolidated pretrial

                                9
proceedings have concluded and that remand is therefore
appropriate is necessarily case-specific. Within each group,
plaintiffs have had differing rates of success in settling
claims and plaintiffs have experienced different injuries and
therefore are impacted differently by the priority policy
reflected in Administrative Order No. 3. Merely because
some plaintiffs have had their requests for suggestions of
remand go unanswered does not mean that it is futile for
other plaintiffs to make such requests. Indeed, the
transferee court has suggested remand in close to 1000
cases. See In re Asbestos Prods. Liab. Litig. (No. VI), No. 875
(JPML Feb. 5, 1999) (unpublished order denying remand).

Thus, only those plaintiffs who actually sought
suggestion of remand from the transferee court have
satisfied the first prong of the mandamus inquiry.

II.

The remaining plaintiffs have not demonstrated a clear
and indisputable right to remand. Section 1407(a) provides
that:

        When civil actions involving one or more common
       questions of fact are pending in different districts, such
       actions may be transferred to any district for
       coordinated or consolidated pretrial proceedings. Such
       transfers shall be made by the judicial panel on
       multidistrict litigation . . . upon its determination that
       transfers for such proceedings will be for the
       convenience of parties and witnesses and will promote
       the just and efficient conduct of such actions. Each
       action so transferred shall be remanded by the panel at
       or before the conclusion of such pretrial proceedings to
       the district from which it was transferred unless it
       shall have been previously terminated: Provided,
       however, that the panel may separate any claim, cross-
       claim, counter-claim, or third-party claim and remand
       any of such claims before the remainder of the action
       is remanded.

28 U.S.C.   1407(a) (emphasis added). Thus, the statute
imposes two limitations on the kinds of proceedings that
the transferee court may conduct: they must be (1)

                                10
coordinated or consolidated and (2) pretrial. See Lexecon
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
33-34 (1998). Moreover, the statute "obligates the Panel to
remand any pending case to its originating court when, at
the latest, those pretrial proceedings have run their
course," which obligation is "impervious to judicial
discretion." Id. at 34-35. The plaintiffs acknowledge that
individual settlement negotiations and discovery continue
in MDL 875 and the docket sheets show a pattern of
settlements continuing through 1999.4 They argue,
however, that individual settlement negotiations and
discovery do not constitute "coordinated or consolidated
pretrial proceedings," that all "coordinated or consolidated
pretrial proceedings" have concluded, and that they
therefore have a clear and indisputable right to relief.

The Supreme Court's decision in Lexecon indicates that
the phrase "coordinated or consolidated" is to be
interpreted broadly. See id. at 33-34. Lexecon was a suit for
malicious prosecution, abuse of process, tortious
interference, commercial disparagement and defamation
arising out of the defendant law firm's conduct as counsel
in a prior class action brought against the plaintiff Lexecon
and others for violations of securities laws. See id. at 28-29.
The class action against Lexecon had been transferred for
coordinated and consolidated pretrial proceedings under
  1407(a) along with other cases arising out of the failure of
Lincoln Savings and Loan. See id. at 29. During the pretrial
proceedings, the class action plaintiffs and Lexecon reached
a "resolution" under which the claims against Lexecon were
_________________________________________________________________

4. Although the petitioners downplay the success of these settlement
negotiations and state that results would have been much quicker in
their transferee districts, the standard for remand is that coordinated
pretrial proceedings be concluded, not that they provide the quickest
resolution of particular cases.

The petitioners' second supplemental affidavit suggests that settlement
negotiations in fact are not ongoing in that the remaining defendants
have stated conclusively that they will not settle until the cases are set
for trial. This affidavit, however, was not presented to either the
transferee court or the JPML. Therefore, insofar as the petitioner's
claims
are based on this evidence, they have a practical and untried avenue for
seeking relief and mandamus will not issue.

                               11
dismissed. See id. Lexecon then filed its malicious
prosecution case, which was transferred by the JPML to the
transferee court under   1407(a), albeit to a different judge.
See id. at 29-30. In transferring, the Panel noted that
Lexecon's claims

       share questions of fact with an as yet unapproved
       settlement involving Touche Ross, Lexecon, Inc. and
       the investor plaintiffs in the Lincoln Savings investor
       class actions in MDL-834 . . . [,] that . . . a massive
       document depository is located in the [transferee
       district] and . . . the Ninth Circuit has before it an
       appeal of an order . . . in MDL-834 which may be
       relevant to the Lexecon claims.

Id. at 30. Subsequently, however, the Ninth Circuit appeal
was dismissed, the document depository was closed down,
and the remaining parties to the Lincoln Savings litigation
reached a final settlement on which final judgment was
entered. See id. Lexecon then moved for suggestion of
remand, which the law firm opposed because discovery was
still incomplete. See id. The law firmfiled a countermotion
requesting that the transferee court "transfer" the case to
itself for trial under   1404(a). See id. The transferee court
deferred ruling on these motions for three months, until
after summary judgment and Rule 54(b) final judgment had
been entered on all but the defamation claim. See id. at 30-
31. At that point, the transferee court granted the law
firm's motion to assign the case to itself for trial and denied
Lexecon's motion for suggestion of remand. See id. at 31.

The Court framed the issue as "whether   1407(a) does
permit a transferee court to entertain a   1404(a) transfer
motion to keep the case for trial." Id. at 32. The Court
stated that "[a]lthough [ 1407(a)] limits a transferee court's
authority to the conduct of `coordinated or consolidated'
proceedings and to those that are `pretrial,' these limitations
alone raise no obvious bar to a transferee's retention of a
case under   1404." Id. at 33-34 (emphasis added). The
Court explained that "[i]f `consolidated' proceedings alone
were authorized, there would be an argument that self-
assignment of one or some cases out of many was not
contemplated, but because the proceedings need only be
coordinated, no such narrow limitation is apparent. " Id. at

                               12
34 (emphasis added). Thus, a proceeding that relates only
to a single individual's case or claim can nonetheless be
coordinated. The Court elaborated, "While it is certainly
true that the instant case was not consolidated with any
other for the purpose literally of litigating identical issues
on common evidence, it is fair to say that proceedings to
resolve pretrial matters were `coordinated' with the conduct
of earlier cases sharing a common core . . . , if only by
being brought before judges in a district where much of the
evidence was to be found and overlapping issues had been
considered." Id. (emphasis added). Even the fact that the
case was being heard by a different judge, although it
limited the prospects for coordination, did not eliminate
them. See id. Neither, apparently, did the fact that all of the
proceedings with which the individual action was
"coordinated" had already concluded raise a bar. This is
evident not only from the facts of the case, where all of the
other cases had been reduced to final judgment when the
case-specific motion was being considered, but also from
the Court's use of the past tense in stating that it was
enough that the case was "being brought before judges in
a district where much of the evidence was to be found [even
though the evidence depository had been closed] and
overlapping issues had been considered." Id. (emphasis
added). Moreover, the case suggests that it is not necessary
that any one issue be common to all cases, so long as
issues "overlap." Id.

This passage cannot be reconciled with the plaintiffs'
argument that "coordinated or consolidated pretrial
proceedings" are concluded when the transferee court
ceases to conduct proceedings that are common to all. To
be coordinated, it is not necessary that common issues are
being contemporaneously addressed. In the instant case, it
seems probable that "much of the evidence," at least
regarding causation, is to be found in the transferee
district. Id. Furthermore, overlapping issues "ha[ve] been
considered": the transferee court oversaw the initial
attempts at global settlement and set forth procedures
applicable to all regarding the mandatory exchange of
information, the negotiation process, and the prioritizing of
cases. Moreover, the transferee court continues to conduct
discovery regarding the use of litigation screenings that

                               13
overlaps many of the cases in MDL-875. Although there is
no allegation that litigation screenings were conducted in
any of the plaintiffs' individual cases, this issue is common
to many cases from many different transferor districts.
Thus, applying the reasoning of Lexecon, it appears that the
individual settlement negotiations and conferences that are
occurring in plaintiffs' cases are in fact "coordinated"
proceedings.

Furthermore, such proceedings are "pretrial.""[P]retrial,
as an adjective, means before trial-- . . . all judicial
proceedings before trial are pretrial proceedings." In re
Plumbing Fixture Cases, 298 F. Supp. 484, 494 (JPML
1968); Wright el al., Federal Practice and Procedure   3866
("Interpreted literally, the transferee court appears to have
control over all proceeding prior to trial[,]" including
discovery motions, motions to amend, to dismiss, for
summary judgment, and to determine class certification.).
Rule 16 of the Federal Rules of Civil Procedure, relating to
pretrial conferences, states that the court may require
conferences before trial for the purpose of "facilitating the
settlement of the case." Fed. R. Civ. Proc. 16(a)(5).
Therefore, there is no basis for concluding that settlement
conferences are not pretrial proceedings.

The legislative history of   1407 also demonstrates that
Congress intended transferee courts to have broad pretrial
authority.

        By the term "pretrial proceedings" the committee has
       reference to the practice and procedure which precede
       trial of an action. These generally involve deposition
       and discovery, and, of course, are governed by the
       Federal Rules of Civil Procedure. Under the Federal
       rules the transferee district court would have authority
       to render summary judgment, to control and limit
       pretrial proceedings, and to impose sanctions for
       failure to make discovery or comply with pretrial
       orders.

H.R. Rep. No. 1130 (1968), reprinted in 1968 U.S.C.C.A.N.
1898, 1900; see also Multidistrict Litigation: Hearings
Before the Subcommittee on Improvements in Judicial
Machinery of the Committee of the Judiciary, 89th Cong.

                               14
13 (1966) (testimony of Dean Neal) ("[T]he cases concerned
would be brought within the control of a single district and
so the very same powers provided by the Federal Rules of
Civil Procedure should permit all of the same kinds of steps
to be carried out by the presiding district judge."). Although
the legislative history does not specifically mention
settlement, it does indicate that the Federal Rules provide
the measure of a transferee court's pretrial authority, and
the Federal Rules allow for conferences to facilitate
settlement.

The plaintiffs point to legislative history stating:

        The objective of the legislation is to provide
       centralized management under court supervision of
       pretrial proceedings of multidistrict litigation to assure
       the "just and efficient conduct" of such actions. The
       committee believes that the possibility for conflict and
       duplication in discovery and other pretrial procedures
       in related cases can be avoided or minimized by such
       centralized management. To accomplish this objective
       the bill provides for the transfer of venue of an action
       for the limited purpose of conducting coordinated
       pretrial proceedings.

H.R. Rep. 1130, 1968 U.S.C.C.A.N. at 1900. Centralized
management of individual settlement negotiations is not
inconsistent with the objective of providing "centralized
management . . . to assure the `just and efficient conduct'
of . . . actions." Id. Such centralized management avoids
"the possibility of conflict and duplication" of, if nothing
else, the judge's time and energy spent becoming familiar
with the recurring issues of asbestos litigation, the major
players and how best to facilitate settlement with particular
defendants.

The plaintiffs also point to legislative history suggesting
that Congress contemplated that additional discovery might
be conducted following remand as evidence that such
individual discovery is not appropriate for the transferee
court. See Multidistrict Litigation: Hearings Before the
Subcommittee on Improvements in Judicial Machinery of
the Committee of the Judiciary, 89th Cong. 56 (1966); H.R.
Rep. No. 1130, 1968 U.S.C.C.A.N. at 1901-02. The House

                               15
Report states that "the committee recognizes that in most
cases there will be a need for local discovery proceedings to
supplement coordinated discovery proceedings, and that
consequently remand . . . for this purpose is desirable."
H.R. Rep. No. 1130, 1968 U.S.C.C.A.N. at 1901-02.
Furthermore, during the hearings, the following exchange
occurred:

        SENATOR TYDINGS: The intent of the coordinating
       committee, . . . apparently, is that the necessary
       additional discovery with regard to issues of fact not
       national or not common to other cases could be
       conducted once the case was remanded . . . .

        Do you agree that the intent of the bill is to allow
       additional discovery after remand . . . , and if so, is the
       language of the legislation sufficiently broad to permit
       that?

        JUDGE MURRAH: Yes

Multidistrict Litigation: Hearings Before the Subcommittee
on Improvements in Judicial Machinery of the Committee of
the Judiciary, 89th Cong. 56 (1966).

All of these statements speak in discretionary terms:
what "in most cases" is "desirable," what the statute
"allows," and what the transferee court "could" do. Section
1407 expressly allows for remand "at or before the
conclusion of . . . pretrial proceedings." 28 U.S.C. 1407(a)
(emphasis added). Clearly, the Panel has the discretion to
remand a case when everything that remains to be done is
case-specific. This does not mean that consolidated
proceedings have concluded at the point that only case-
specific proceedings remain; rather, the court can at that
point exercise its discretion to remand "before the
conclusion of pretrial proceedings." 28 U.S.C. 1407(a).

For the same reason, the plaintiffs' citation to Panel
decisions remanding cases prior to the conclusion of all
pretrial proceedings is unavailing. See In re Air Crash
Disaster at Tenerife, 461 F. Supp. 671 (JPML 1978); In re
Evergreen Valley Project Litig., 435 F. Supp. 923 (JPML
1977). In each of these cases, the Panel exercised its
discretion to remand, based on its finding that remand "will

                                16
serve the convenience of the parties and witnesses and will
promote the just and efficient conduct of [the litigation]." In
re Air Crash Disaster, 461 F. Supp. at 672. These remands
were discretionary. In the instant case, where the
possibility exists that even individual settlement

negotiations will be more efficient if facilitated by a judge
who is intimately familiar with the general issues and many
of the parties, and where in fact the record reflects that
settlements are successfully being negotiated, one cannot
say that the Panel abused its discretion in refusing to
remand.

Lexecon suggests another limitation on the transferee
court's authority in addition to the requirement that
proceedings be both coordinated and pretrial. See Lexecon
523 U.S. at 34-39. After concluding that the requirement of
"coordinated or consolidated" proceedings did not preclude
the court from ruling on the transfer motion at issue, the
court stated that, "at first blush," the requirement of
pretrial proceedings suggests no reason why the court
could not rule on such a motion. Id. at 34. Ultimately,
however, the Court concluded that a   1404 transfer order
was outside the scope of the transferee court's authority
because a "necessary consequence of self-assignment by a
transferee court [is that] it conclusively thwarts the Panel's
capacity to obey the unconditional command of   1407(a)"
to remand "at or before the conclusion of pretrial
proceedings to the district from which it was transferred
unless [the action] shall have been previously terminated."
Id. at 36. In the instant case, however, conducting
individual settlement conferences does not "conclusively
thwart" the Panel's ability to remand. Unlike a 1404
transfer, which makes it impossible for the Panel to remand
even though the action has not been terminated, settlement
negotiations will either be successful, in which case the
action will terminate, or they will eventually conclude and
the action can be remanded at that point.

In conclusion, because individual settlement negotiations
and conferences are ongoing in the plaintiffs' individual
cases, and because the transferee court is conducting
discovery on overlapping issues that affect many asbestos
cases, even if not the plaintiffs', coordinated pretrial

                               17
proceedings have not concluded, and the plaintiffs have not
demonstrated a clear and indisputable right to the relief
they seek. Therefore the writ of mandamus will not issue.

III.

At times the plaintiffs appear to be arguing that the JPML
abdicated its statutory duty when it relied on the fact that
the transferee court had declined to issue a suggestion of
remand as one basis for its own decision to deny the
motion to remand. This policy is embodied in JPML Rule
7.6(d), which states that "[t]he Panel is reluctant to order
remand absent a suggestion of remand from the transferee
district court." JPML Rule 7.6(c). Deference is not
abdication, however, and the presence or absence of a
remand recommendation from the transferee judge as a
factor in the Panel's decision-making process seems to us
entirely reasonable. Moreover, if plaintiffs had shown an
abdication of statutory duty on the part of the Panel, it
would not satisfy their burden of showing that they have a
clear and indisputable right to the relief they seek, which is
remand. To do that, they must clearly and indisputably
show that coordinated pretrial proceedings have concluded
in their cases, and that they have not done.

IV.

For the foregoing reasons, the petition for writ of
mandamus will be denied.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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