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


12-1-2000

In Re: Mary Collins
Precedential or Non-Precedential:

Docket 00-1009




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Recommended Citation
"In Re: Mary Collins" (2000). 2000 Decisions. Paper 240.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/240


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Filed December 1, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1009

In Re: Mary Nell Collins, Individually and as Personal
       Representative of the Heirs and Estate of Carl
       Gene Collins, Deceased,

In Re: Barbara and Frederick Hoffman,

In Re: Marjorie Peuffier, Individually and as Personal
       Representative of the Heirs and Estate of Robert
       Peuffier, Deceased,

       Petitioners.

On Petition for Writ of Mandamus to The
Judicial Panel on Multidistrict Litigation
(D.C. No. M.D.L. 875)
District Judge: Honorable Charles R. Weiner

Submitted Pursuant To Third Circuit L.A.R. 34.1(a)
October 6, 2000

Before: Barry, Rosenn, and Weis, Cir cuit Judges

Filed December 1, 2000

       Alan B. Rich,   Esquire
       Baron & Budd,   P.C.
       3102 Oak Lawn   Avenue, Suite 1100
       Dallas, Texas   75219

       Attorneys for Petitioners
Hubert A. Crouch, III, Esquire
Kirk T. Florence, Esquire
Amy E. Nettle, Esquire
Crouch & Inabnett, L.L.P.
2300 Fountain Place
1445 Ross Avenue
Dallas, Texas 75202

Attorneys for Respondent
Macmillan-Bloedel

McCarter & English, LLP
2005 Market Street, Suite 3600
One Commerce Square
Philadelphia, Pennsylvania 19103
Of Counsel:
 Nathan A. Schachtman, Esquire
On the Brief:
 James H. Wilson, III, Esquire

Attorneys for Respondent
GAF Corporation

John D. Aldock, Esquire
Elizabeth Runyan Geise, Esquire
David R. Esquivel, Esquire
Shea & Gardner
1800 Massachusetts Avenue, NW
Washington, D.C. 20036

John G. Gaul, Esquire
Center for Claims Resolution
504 Carnegie Center, Second Floor
Princeton, New Jersey 08540

Attorneys for Respondents
Represented by the Center for Claims
Resolution

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       Robert H. Riley, Esquire
       Catherine M. Masters, Esquire
       Neil Lloyd, Esquire
       Schiff Hardin & Waite
       6600 Sears Tower
       Chicago, Illinois 60606-6473

       Attorneys for Amicus Curiae
       Owens-Illinois, Inc.

OPINION OF THE COURT

WEIS, Circuit Judge.

Petitioners seek a writ of mandamus directing the
Judicial Panel on Multidistrict Litigation to r emand punitive
damages claims for trial together with the r emainder of
personal injury claims arising from asbestos exposure. We
will deny the petition for mandamus.

Petitioners are four individuals seeking damages for
injuries resulting from exposure to asbestos. Pursuant to
28 U.S.C. S 1407(a) the claims were transferred by the
Judicial Panel on Multidistrict Litigation to Multidistrict
Litigation No. 875, which is pending in the United States
District Court for the Eastern District of Pennsylvania.

At the suggestion of the transferee judge, when the
Judicial Panel remanded the petitioners' claims to the
transferor courts, it withheld remand on the requests for
punitive damages. This action was consistent with the
transferee court's practice in multidistrict litigation
asbestos cases over the past decade of retaining demands
for punitive damages while allowing the compensatory
matters to proceed to trial. The practice has been noted by
this Court before. See In re Patenaude, 210 F.3d 135, 140
n.3 (3d Cir. 2000) ("The [transfer ee] court also has a
practice when it does remand cases of severing and
retaining jurisdiction over punitive damages claims."); Dunn
v. Hovic, 1 F.3d 1371, 1400 n.13 (W eis, J., dissenting).

Petitioners contend that in "undertak[ing] the substantive
task of preserving the assets available to satisfy asbestos

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claims by refusing to remand the punitive damages issue,"
the Panel is overstepping its authority. They ar gue section
1407(a) only permits the Panel to separate"claims," but
requests for punitive damages do not have the
characteristics of independent claims because a party
cannot bring an action for such awards in isolation. On
that basis, petitioners assert that the law tr eats punitive
damages as a form of relief, not a claim or cause of action.

Respondents point out that claims for punitive damages,
although dependent on factors justifying compensatory
awards, require separate elements of proof such as malice,
fraud, or gross negligence. Moreover , respondents observe
that many courts require or permit evidence of a
defendant's wealth, a factor not generally per mitted when
only compensation is sought. Because such evidence is
necessary in order for a jury to assess punitive damages,
but irrelevant to the merits of other claims, many
jurisdictions also require that the punitive damages counts
be tried separately from proceedings that determine
compensatory awards.

Section 1407(a) provides that "civil actions involving one
or more common questions of fact . . . may be transferred
[by the judicial panel on multidistrict litigation] to any
district for coordinated or consolidated pr etrial
proceedings." 28 U.S.C. S 1407(a). At or before conclusion
of the pretrial procedures, the Panel is to remand those
cases to the districts from which they wer e originally
transferred, "[p]rovided, however, That the panel may
separate any claim, cross-claim, counter -claim, or third-
party claim and remand any of such claims befor e the
remainder of the action is remanded." Id.

Essentially, the petitioners would have us construe
"claim" in section 1407(a) to be synonymous with "cause of
action," and a request for punitive damages to be merely an
"issue" as that term is used in Federal Rule of Civil
Procedure 42(b). We reject these contentions. As a term of
art and in common parlance, the meaning of "claim" is not
so circumscribed. For example, a cause of action based
upon negligence frequently is described as including
"claims" for property damage, lost wages, medical bills, and
pain and suffering. Neither the statute's language nor the

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snippets of legislative history cited to us pr ovides a basis
for adopting the petitioners' crabbed reading of the word.
Rather, the legislative history of section 1407 demonstrates
"that Congress intended transferee courts to have broad
pretrial authority." Patenaude, 210 F.3d at 144. In our
view, the Panel's expansive interpretation of"claim" is the
more reasonable one and that which we endorse.

Furthermore, although a demand for punitive damages
does not stand alone, it is not simply a component of a
claim inseparable from the whole. This distinctiveness is
demonstrated by case law allowing new trials devoted solely
to determining punitive damages. See, e.g. , Denesha v.
Farmers Ins. Exch., Inc., 161 F.3d 491, 505 (8th Cir. 1998);
Jannotta v. Subway Sandwich Shops, Inc., 125 F .3d 503,
517 (7th Cir. 1997). Separate trials of punitive damages
claims are also permitted. Jenkins v. Raymark Indus., Inc.,
782 F.2d 468, 474-75 (5th Cir. 1986). A request for punitive
damages is similar to a derivative claim, such as for loss of
consortium, and may properly be characterized as "a
separate but dependent claim for relief " that must be
supported by independent allegations and proof. 1 James
D. Ghiardi, et al., Punitive Damages L. & Prac., S 12.07 at
22-23, 25 (1999).

In addition, the statute grants unusually br oad discretion
to the Panel to carry out its assigned functions. Subsection
(e) provides that "[n]o proceedings for review of any order of
the panel may be permitted except by extraor dinary writ
pursuant to the provisions of title 28, section 1651, United
States Code." This vehicle that Congress chose for review is
one that we have held should only be granted "in response
to an act amounting to a judicial usurpation of power."
Patenaude, 210 F.3d at 140. Petitioners have the burden to
establish that they "have no other adequate means to attain
the desired relief, and . . . that [their] right to the writ is
clear and indisputable . . . . Even when these r equirements
are met, issuance of the writ is largely discretionary." Id. at
141. In this way, Congress granted substantial authority to
the Panel to decide how the cases under its jurisdiction
should be coordinated. It is significant that section 1407(a)
directs that the Panel act "for the convenience of parties
and witnesses and . . . promote the just and efficient
conduct of such [civil] actions."

                               5
An even more compelling reason to adopt the Panel's
interpretation is the public policy underlying the practice of
severing punitive damages claims. In Patenaude , we quoted
the transferee court's objectives in resolving the thousands
of cases assigned to it -- "that the sick and dying, their
widows and survivors should have their claims addr essed
first." Id. at 139. The Report of the Judicial Conference Ad
Hoc Committee on Asbestos Litigation accurately appraised
the problem:

       "Although there may be grounds to support an award,
       multiple judgments for punitive damages in the mass
       tort context against a finite number of defendants with
       limited assets threaten fair compensation to pending
       claimants and future claimants who await their
       recovery, and threaten the economic viability of the
       defendants. To the extent that some states do not [sic]
       permit punitive damages, such awards can be viewed
       as a malapportionment of a limited fund. Meritorious
       claims may go uncompensated while earlier claimants
       enjoy a windfall unrelated to their actual damages."

Report of the Judicial Conference Ad Hoc Committee on
Asbestos Litigation at 32 (March 1991).

Punitive damages are a windfall to the r ecipients over
and above compensatory damages to which they ar e
entitled. Indeed, in some jurisdictions, punitive damages
are paid in part to the state rather than the individual
plaintiff. See Alaska Stat. S 9.17.020(j); Ga. Code Ann. S 51-
12-5.1(e)(2) (product liability cases); Utah Code Ann. S 78-
18-1(3).

The resources available to persons injur ed by asbestos
are steadily being depleted. The continuingfilings of
bankruptcy by asbestos defendants disclose that the
process is accelerating. It is responsible public policy to
give priority to compensatory claims over exemplary
punitive damage windfalls; this prudent conservation more
than vindicates the Panel's decision to withhold punitive
damage claims on remand. It is discouraging that while the
Panel and transferee court follow this enlightened practice,
some state courts allow punitive damages in asbestos
cases. The continued hemorrhaging of available funds

                               6
deprives current and future victims of rightful
compensation.

Petitioners have failed to persuade us that the Panel
ruling was erroneous. The petition does not demonstrate
the extraordinary circumstances per mitting us to issue a
writ of mandamus, much less compel us to exer cise our
discretion and grant the request.

The petition for mandamus will be denied.

A True Copy:
Teste:

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

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