The Federal Asbestos MDL

If you or a loved one has an asbestos diagnosis and the exposure was military or maritime, you may have a valid claim — and there's a fair chance a defendant will try to move it into federal court. We can explain what that changes, and what it doesn't, before you decide anything.

Multidistrict litigation is a federal mechanism for handling large numbers of related cases filed across different districts.

Accordingly, when many federal cases share common questions of fact, the Judicial Panel on Multidistrict Litigation can transfer them to a single district and a single judge for coordinated or consolidated pretrial proceedings. The purpose is efficiency: deciding a recurring evidentiary question once instead of ninety times in ninety districts.

Three points about what an MDL is not are worth stating, because they are commonly misunderstood.

An MDL is not a class action. Each case remains a separate lawsuit with its own claimant, its own facts, and its own outcome. Nobody is bound by a decision in someone else's case in the way class members are bound by a class judgment.

An MDL does not transfer trial. The transfer is for pretrial purposes. Cases that are not resolved go back to their originating district for trial.

An MDL does not change the substantive law. A transferred case generally continues to be governed by the law that would have applied where it was filed. Consolidation changes who manages the pretrial process. The state's rules still decide the claim.

The federal asbestos MDL is docketed as MDL 875, In re: Asbestos Products Liability Litigation (No. VI), and it was transferred to the Eastern District of Pennsylvania in 1991.

Its scale is difficult to overstate. The court describes it as one of the largest multidistrict litigations in the federal courts, having disposed of approximately 180,000 cases and 10 million claims. Those figures reflect decades of accumulated federal asbestos litigation from every district in the country.

In addition, the court has published administrative orders governing the proceeding, and requires counsel to be registered on the Eastern District's electronic case filing system, with documents in MDL 875 filed there under the court's local rules.

Because the proceeding has been running since 1991 and its active caseload and procedures have changed substantially over that time, anything specific about current status, pending case counts, or filing requirements should be checked against the court's own published materials rather than any secondary description.

Most asbestos cases are filed in state court. They reach federal court because a defendant removes them, and two routes recur.

Diversity jurisdiction requires complete diversity of citizenship — no plaintiff sharing a state with any defendant — plus an amount in controversy above the statutory threshold. Multi-defendant asbestos cases frequently defeat diversity, because a case naming a dozen manufacturers will often include at least one that shares the claimant's state. This is one reason the composition of the defendant list has consequences beyond who ultimately pays.

Federal officer removal is the route that matters most in this field, and it gets its own section below.

Keep in mind that removal is a defendant's choice. A claimant who selected a state forum deliberately may find a defendant attempting to move the case, and whether the removal succeeds is itself litigated — motions to remand back to state court are a routine part of asbestos practice.

This is the removal route that arises constantly in Navy and shipyard cases, and it's worth understanding if your exposure was military or maritime.

A defendant may remove a case to federal court on the basis that it acted under the direction of a federal officer. In asbestos litigation the argument typically runs: the equipment was manufactured to detailed military specifications, the government controlled the design including any warnings, and the manufacturer was therefore acting under federal direction, with no independent choice about what to make or what to say about it.

Moreover, that argument is connected to the government contractor defense — the substantive defense that a contractor should not be liable for complying with precise government specifications.

As a result, cases arising from Navy service or naval shipyard work are considerably more likely to end up in federal court than cases arising from a refinery or a commercial building, purely because the defendants have this route available. Whether removal succeeds is heavily litigated and turns on what the specifications actually required and what the government actually controlled — particularly whether it controlled warnings, as opposed to design.

This is one reason a shipboard exposure history is developed with the eventual forum in mind. See Navy shipboard asbestos exposure and venue and jurisdiction.

For an individual claimant, transfer into an MDL changes the process, and leaves the claim itself intact.

Your case stays yours. It is not merged with anyone else's. Your work history, your diagnosis, your defendants, and your damages remain individual.

Pretrial management is centralized. Discovery, motions raising common issues, and scheduling are handled by the transferee court. Issues common across many cases get decided once.

Case-specific work still happens. Product identification, your own exposure evidence, your medical proof, and your damages are developed individually, because they are not common questions.

The substantive law generally follows the case. Transfer does not convert an Illinois case into a Pennsylvania one for purposes of the rules that decide it.

Timing changes. Coordinated proceedings can move a case efficiently on common issues, and can also mean waiting on the schedule of a very large proceeding. Where a claimant is seriously ill, that timing is a real consideration, and it is one of the reasons the choice between state and federal forums matters at the outset rather than later.

Because an MDL is a pretrial mechanism, cases that are not resolved during coordinated proceedings are remanded to the federal district they came from, for trial there.

Two different uses of the word are worth separating, because they cause confusion.

Remand from an MDL means a transferred case going back to its originating federal district after pretrial proceedings.

Remand to state court means a case that was removed from state court being sent back, because the removal was improper. That is a different motion, decided on different grounds, and it is often the first thing litigated after a removal.

A claimant who filed in state court and wants to stay there is generally seeking the second kind of remand — arguing the removal was not proper, instead of accepting transfer and waiting for the first.

Overall, which outcome is preferable depends on the case: on the forum originally chosen, on the strength of the removal, on the applicable substantive law, and on the claimant's health and the timing that follows from it. It is a strategic question decided on the facts of the case.

Removal and remand are argued between lawyers, and a family never has to follow the procedural detail to be well served by it. What matters is that somebody is watching for it from the start.

If your exposure was aboard ship or in a naval yard, that's particularly worth raising early, since it's the fact pattern where this comes up most. There's no cost to that conversation, and no fee unless we win.

It costs nothing to find out where your family stands.