NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 12-3822, 12-3823, 12-3824 and 12-3825

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IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)

Harold W. Landes, Jr.,

Appellant, No. 12-3822

George L. Conner,

Appellant, No. 12-3823

Walter J. Specht, Jr.,

Appellant, No. 12-3824

Thomas Streber,

Appellant, No. 12-3825

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On Appeal from the MDL 875 in the United States District Court

for the Eastern District of Pennsylvania

(D.C. Nos. 2-08-cv-88402, 2-09-cv-061817,

2-10-cv-067838 and 2-11-cv-64241)

District Judge: Honorable Eduardo C. Robreno

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Submitted Pursuant to Third Circuit LAR 34.1(a)

September 16, 2013

Before: FISHER, VANASKIE and SHWARTZ, Circuit Judges.

(Filed: October 17, 2013)

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OPINION OF THE COURT

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FISHER, Circuit Judge.

Harold Landes, George Conner, Walter J. Specht, and Thomas Streber 

(collectively “Plaintiffs”) appeal from the United States District Court for the Eastern 

District of Pennsylvania‟s dismissal of their cases pursuant to Federal Rule of Civil 

Procedure 41(b) for failure to comply with Administrative Order No. 12 (“AO 12”). For 

the reasons stated below, we will affirm.

I.

We write principally for the parties, who are familiar with the factual context and 

procedural history of this case. Therefore, we will set forth only those facts that are

necessary to our analysis.

Plaintiffs‟ cases were consolidated with various other cases into Multidistrict 

Litigation 875 (“MDL 875”), a consolidated docket for asbestos products liability claims 

located in the Eastern District of Pennsylvania. In order to “facilitate the expeditious 

movement of pending cases on the MDL docket,” the District Court issued AO 12 in May 

2007. App. 6. AO 12 required an MDL 875 plaintiff to disclose medical diagnoses 

supporting his or her claims by submitting copies of the medical diagnosing report or the 

opinion upon which the plaintiff‟s asbestos-related claim relied. App. 7. AO 12 further 

required that a plaintiff‟s submissions be based upon objective and subjective data, 

identified and descriptively set out within the report or opinion. App. 15. If a plaintiff 

failed to comply with the requirements set forth in AO 12, the Court could dismiss the 
3

case pursuant to Rule 41(b).1 In August 2009, the District Court amended AO 12 to 

require a plaintiff to submit, among other things, medical reports “upon which the 

plaintiff now relies for the prosecution of the claims as if to withstand a dispositive 

motion.” App. 15.

On November 14, 2011, the District Court dismissed a series of cases for failure to 

comply with the requirements set forth in AO 12. Specifically, the Court dismissed all 

cases involving plaintiffs who failed to submit, among other things, sufficient exposure 

histories. App. 15. Although the plain language of AO 12 did not specifically require a 

plaintiff to provide a complete exposure history, the District Court based its dismissal on:

[T]he language in AO 12 that emphasizes that plaintiffs should submit 

medical diagnosis [sic] or opinions based on medically accepted principles 

and practices, and based on statements from reputable medical 

organizations that require occupational and environmental exposure history 

when screening for asbestos-related diseases . . .

App. 35. The District Court interpreted AO 12 to require that submissions comply with 

“generally accepted medical standards [that] call for information regarding „duration, 

intensity, time of onset, and setting‟ of exposure to asbestos.” App. 33.

Plaintiffs in the instant proceeding served AO 12 disclosures on Defendants in 

December 2007 (Landes), September 2007 (Conner), October 2007 (Specht), and April 

2011 (Streber); each contained a diagnosing medical report. In response, Defendants

 

1 Rule 41(b) provides: “If the plaintiff fails to prosecute or to comply with these 

rules or a court order, a defendant may move to dismiss the action or any claim against it. 

Unless the dismissal order states otherwise, a dismissal under this subdivision (b) . . . 

operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b).
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filed motions to dismiss on the basis that each of Plaintiffs‟ AO 12 submissions failed to 

comply with the November 2011 order because they did not contain a sufficient history 

of exposure to asbestos. App. 288-89, 507-09, 609-10, 649-51. Plaintiffs filed responses 

in opposition to Defendants‟ motions, arguing that their submissions were sufficient and 

that the District Court‟s interpretation of AO 12 was incorrect. App. 652. On July 23, 

2012, the District Court adopted its November 2011 interpretation of AO 12 and granted 

the Defendants‟ motions, dismissing with prejudice Plaintiffs‟ cases for failure to provide 

a sufficient AO 12 report with respect to exposure history. App. 53-60.

On August 17, 2012, Plaintiffs filed individual motions to reconsider the District 

Court‟s order dismissing their cases with prejudice. The District Court denied 

reconsideration. Plaintiffs‟ timely notice of appeal to this Court followed.

II.

The District Court had jurisdiction under 28 U.S.C. § 1407, which authorizes the 

transfer to a single district court of cases presenting common issues of fact. We have 

appellate jurisdiction under 28 U.S.C. § 1291.

“We review a district court‟s interpretation of its own orders with deference, 

particularly in the MDL context.” In re Asbestos Prods. Liab. Litig. (No. VI), 718 F.3d 

236, 243 (3d Cir. 2013) (citing Gibbs v. Frank, 500 F.3d 202, 206 (3d Cir. 2007)). We 

review a district court‟s decision to dismiss a complaint under Rule 41(b) for an abuse of 

discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).
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III.

Plaintiffs advance several arguments on appeal: (1) that the District Court erred in 

interpreting AO 12; (2) that the District Court erred in retroactively applying its novel 

interpretation of AO 12 to dismiss Plaintiffs‟ cases with prejudice for not complying with 

AO 12; and (3) that the District Court erred in dismissing Plaintiffs‟ cases without 

providing individualized analyses of the claims and the mandatory findings necessary to 

justify dismissal with prejudice. Each of these arguments fails.

A.

Plaintiffs first argue that the District Court‟s interpretation of AO 12 as requiring a 

complete exposure history is incorrect. The proper interpretation, according to Plaintiffs, 

is that AO 12 only requires a diagnosis of an asbestos-related disease in a medical report 

that is supported by identified objective and subjective data. Plaintiffs contend that since 

their submissions satisfied the plain language of AO 12, they were sufficient. We 

disagree.

“[W]e normally give great deference to a court‟s interpretation of its own 

orders . . . .” See DirecTV, Inc. v. Leto, 467 F.3d 842, 844 (3d Cir. 2006); see also

Asbestos (No. VI), 718 F.3d at 244 (citing United States v. Davis, 261 F.3d 1, 58-59 (1st 

Cir. 2001) (“We defer to [the district court‟s interpretation of its own case management 

order] because the district court was uniquely positioned to explain the meaning of its 

own pretrial order.”)).
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Here, the District Court set forth the requirements of AO 12 in its November 2011 

order. The language of AO 12, requiring plaintiffs to submit medical diagnoses or 

opinions based on objective and subjective data, and statements from reputable medical 

organizations emphasizing the importance of exposure history in screenings for asbestosrelated diseases, informed the District Court‟s interpretation. While the broad language 

of AO 12 could support other interpretations, we find no reason not to defer to the 

District Court‟s interpretation of its own order requiring plaintiffs to submit asbestos 

exposure history. See Asbestos (No. VI), 718 F.3d at 244. For the same reasons, we also 

find that the District Court did not abuse its discretion in imposing the asbestos exposure 

history requirement.

B.

Plaintiffs also argue that the District Court erred in retroactively applying its novel 

interpretation of AO 12 to dismiss their cases with prejudice. They contend that their 

cases should have been dismissed without prejudice.

In determining whether a district court abused its discretion in dismissing a case 

pursuant to Rule 41(b), we review the manner in which it balanced the six factors set 

forth in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863 (3d Cir. 1984). 

Asbestos (No. VI), 718 F.3d at 246. These six factors include:

(1) the extent of the party‟s personal responsibility; (2) the prejudice to the 

adversary caused by the failure to meet scheduling orders and respond to 

discovery; (3) a history of dilatoriness; (4) whether the conduct of the party 

or the attorney was willful or in bad faith; (5) the effectiveness alternative 
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sanctions other than dismissal; and (6) the meritoriousness of the claim or 

defense.

Id. (citing Poulis, 747 F.2d at 868). “„No single Poulis factor is dispositive‟” and “„not 

all of the Poulis factors need be satisfied in order to dismiss a complaint.‟” Id. (citing 

Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008)). While engaging in this analysis, we 

bear in mind that district judges “must have authority to manage their dockets, especially 

during [a] massive litigation.” Id. (quoting In re Fannie Mae Sec. Litig., 552 F.3d 814, 

822 (D.C. Cir. 2009)). Due to the inherent difficulties in administering cases in 

multidistrict litigation, “district courts must have wide discretion to manage „complex 

issues and potential burdens on defendants and the court‟ – namely . . . through managing 

discovery.” Id. (quoting Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 

2000)).

We conclude that the District Court properly considered the Poulis factors and, 

accordingly, did not abuse its discretion in dismissing Plaintiffs‟ cases with prejudice 

pursuant to Rule 41(b). “[O]ur ability to satisfy ourselves that the district court did not 

act arbitrarily, and did consider the relevant factors, is made easier when the dismissal 

resulted from the defendant‟s motion and was challenged by the plaintiff before the 

district court ruled.” Id. at 248. Here, the District Court considered the Poulis factors in 

its November 2011 order, and the Plaintiffs addressed them in their briefs in opposition to 

Defendants‟ motions to dismiss. While the District Court did not explicitly weigh all of 

the factors in its July 2012 order, it reiterated the case management needs of asbestos 
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multidistrict litigation and the objectives of AO 12, including the need “to avoid 

unnecessary burdens on defendants.” App. 54 n.2. Specifically, the Court stated: 

“Without evidence of an exposure history for each plaintiff and a medical diagnosis that 

allows defendants and the Court to sort through, for example, which plaintiffs allegedly 

were exposed to whose asbestos at which locations, the litigation of thousands of cases 

could not go forward.” App. 53-54 n.2. By not presenting the exposure history 

necessary to withstand a motion to dismiss, Plaintiffs delayed the progress of their cases 

and unduly burdened the Defendants.

C.

Plaintiffs‟ final argument challenges the District Court‟s failure to provide 

Plaintiffs with individualized analyses of their claims and the mandatory findings 

necessary to justify dismissal with prejudice. This argument fails because, as previously 

stated, the District Court properly considered the Poulis factors in its November 2011 

order, the parties addressed them in their briefs, and the Court incorporated those factors 

into its dismissal of the Plaintiffs‟ claims in July 2012. Because Plaintiffs failed to 

provide the submissions necessary to withstand a dispositive motion, the Court was left 

with little to assess in terms of individualized analysis.

Plaintiffs‟ argument also fails because they were put on notice in November 2011 

of the District Court‟s view on the diagnostic information required for their cases. See 

Asbestos (VI), 718 F.3d at 248. Rather than correcting their submissions to comply with 
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AO 12, which they had ample opportunity to do, Plaintiffs chose to argue that the District 

Court‟s interpretation was flawed and that their submissions were sufficient. The 

consequences of taking this route were clear given the District Court‟s previous 

dismissals in November 2011. See id. (“Plaintiffs chose the strategy of arguing to the 

contrary, in seeming denial, while the consequences of doing so . . . were quite clear, and 

admittedly drastic.”).

Because the District Court adequately weighed the parties‟ arguments in 

accordance with Poulis, and Plaintiffs were given the opportunity to cure any potential 

defects, the District Court did not abuse its discretion in dismissing Plaintiffs‟ cases 

pursuant to Rule 41(b).

IV.

For the reasons set forth above, we will affirm the District Court‟s dismissal with 

prejudice of the claims in the instant appeal.