2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-11-2000

JoAnn Patenaude, et al.

Precedential or Non-Precedential:

Docket 99-1540

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"JoAnn Patenaude, et al." (2000). 2000 Decisions. Paper 75.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/75
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 asbestosrelated 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 selfassignment 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 casespecific 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 

 18