Legal Case Summary

We can begin with the argument. We thought it would be a good idea to get the lay of the land here. We know that there are motions to consolidate, which we have not granted, but we may. Are there other counsel in the room that have cases that are also affected by the same subject matter? You're asking about the plan of the council? Yes, or defense council? We're doing plan of the council. Okay. We're good. One of both of you come up and just tell us. Are there other cases pending? We know there are some other cases in the pipeline here. We don't know whether you're involved with them or not. Yeah, yeah. And if defense council have an interest in this as well. For instance, I'm on a panel. Well, I know there is a panel in May that has other dismissals, and that's what it would be. Yes, there's for sure the landess group of cases, I call it. The present group, of course, there's two groups that were consolidated now. I told them 12 cases. There was 11, and then one, those are the two groups I call them. Are you involved in the cases in May? I don't know if we had a date set on that that I had seen, but I know the cases of ours. Are that are up that are part of the motion to consolidate our group that begins with landess. Okay. All right. And it's landess, Connor, and Svet and Srebra are the four cases. Note that's just been fully brief very recently. All right. Good. In the last probably week or so

. Were those suicide dismissals? Those are dismissals, I believe, pursuant to the same types of orders that are involved here. Very close. I mean, that's why. Okay. Mr. Mahalin. Or you would be. Good morning, Danny Mohalin. My understanding is we're here on 12 cases today. I'll be arguing on behalf of all the appellees in those cases. I also understand that there are four additional cases that are in the pipeline. My firm is personally not involved in those cases, but there may be other defense counsel here today that are involved in those cases. Is anyone here involved in those other cases? You're under Thomas Ellingen. Yes. Like Mr. McCoy said, there are a group of other cases. I think they went in two waves. My client is in straver and Stafford. All right. In those are brief. I don't believe we have oral arguments set. Right. And were these again, Suis Frontier? It's been a similar situation. All right. All right

. The cases where there's been a notice of appeal, but no briefing yet. Are you aware? Not that my client is involved in and not that I'm aware of. Okay. Good. Well, we'll try to sort it all out then. So it appears that the resolution of these cases here then may affect may affect other cases as well. And we'll have to sort that out. Well, good. Mr. McCoy, you ready to proceed? Yes. Yes. Yes, this is I'm all set here. Just got a little bit. I haven't grown that tall yet. I don't think I will. This set of cases that's before your honor, of course, comes from MDL 875, the asbestos litigation, which we are well aware of. MDL is. Which has been winding down. And I say that because looking at the narrowest possible grounds for resolving the issues before the court, there's no need here to be concerned with limiting the powers of the MDL judge, Judge Rubino. That's not necessary to resolve these cases. When I say that resolved in a way that the appellants planists would be prevailing here in this court, it's also not necessary to go past the abuse of discretion standard. That standard can be used here to resolve these cases. Are you saying that Judge Rubino did not need to explicate under pulleys any more than he did? I'm saying just the opposite. So you are saying that a judge in this situation his power is limited by pulleys? His power is limited because pulleys applies to all cases, not because it's an MDL, but because it applies to all cases, pulleys. What presidential opinion supports the application of pulleys in a non-suis-fonte context? I'm not certain if I understand what you mean by non

. Well, here there's a motion to dismiss. Yes. There are motions to dismiss. One notice with time for response, responses for file, the judge entered an order. Pulleys involved in a suis-fonte the court on its own without a motion. Correct? That's correct. Okay. So I'm saying what presidential opinion of hours says that pulleys applies in a motion to dismiss context? In a 41-B context, pulleys findings are required. And certainly one case that I would point to is the decision in the United States of America versus 8 million in change and currency, which is a opinion of Justice Rendell. And that case states that when there is a dismissal on the merits such as here, and that case involved the discovery violation effectively, and that case the six factors had to be weighed. And the court criticized the district court for weighing only four of the six. Here, there was no findings at all on the pulleys factors. Another significant. And you say that was the 8 million dollar case was a motion to dismiss? Yes. I have to go back and read my own opinions. What about that? I'm sorry, I didn't want to interrupt the question here, but tell me a bit about the notice. Why? Why weren't you on notice here? A bit about the, I'm sorry. About the being on notice on the October. Notice that you were subject to dismissal under the. There's no question that there was notification that AO12 need to be met. That's not a concern here in terms of our position. We're not saying we were not on notice. What we're saying is we were on notice of a particular standard that existed originally starting in 2007, was changed in 2009. That was a standard that was being satisfied when these submissions were made. When the order came down in November of 2011, which is a subject of this appeal, the basis for the dismissals, that order created certain changes

. Why weren't you on notice by the in October? Tell me. We were on notice of the order that was in place in 2000. All right, but what was the difference in the standard that you claim was changed? Difference in the standard. They're several. I mean, the November order was explicit saying exposure history required, right? And the motions were the bulk of the motions were filed thereafter, were they not? Some of these motions just came afterwards. Right. Some came in advance, though. Right. I'm sorry. I interrupted. You were going to say what changed in that order in response to the Jewish question. Right. So the change is that there was some requirement of an exposure history. That was one change. Another change was to require a finding of impairment. The problem with these changes was that they're still not well defined, because exposure history has many different standards in medical science. Well, what do you think it is? This, go ahead. I mean, you've been one of the disadvantages that I have as a judge is I don't live and breathe. Maybe that's another good verb. The asbestos cases, but you all do. What is it? What, when someone says you need complete exposure history in order to diagnose in order to identify causation in the context of medical parlance and proceeding with litigation, what does it mean? That's a jury question, typically. That's the first thing. It's the fact. It's a fact issue. It means when

... Would you have to prove you're exposed to a certain product and you have to give a context, don't you? Right. And that comes down to the specific defendants. These, the AO-12 order is not about proving a case against a specific defendant. It's only about whether there's a medical diagnosing report sufficient to establish an asbestos related injury. It's a medical diagnosing report. It's not a detailed occupational exposure history such as you present to a jury defendant by a defendant. And the standards that are looked at in reference to Judge Rubino's opinion, he doesn't adopt any one of those. He references those. The standards are not the only ones that are out there because plaintiffs have cited additional standards. At trial, we use typically the Helsinki criteria with our experts. That's cited within our briefing here. The Helsinki criteria would require an overall long-term tenure, history of exposure approximately to diagnose a lung cancer. The radiographic findings alone can be enough. Yeah, but what? Oh, go ahead, sorry. And that standard is one of the many standards that can be used by the physicians. It's really dependent on the physicians as to which standards they want to go by. Are you saying that the submissions you had on file that you thought were in compliance with AO12? Were exactly what would have been required by virtue of pages 13, 14, and 15 of Judge Rubino's November 14th order? I'm saying, I'm saying if you look at what he said about needing an exposure history, yes, these are maritories claims. That's one of the poolous factors. The question is, are these maritories claims? We're not here deciding a despositive motion of the sufficiency of the evidence. That's why I say the abuse of discretion standard was violated in not making these poolous findings. There's a case- But at least that's the two plaintiffs, right? Brickson Brzynski, you can see that you didn't have adequate AO12 for reports. Yes, we did not have causation letters. We were relying on the allegations and the complaint which hadn't been contested of lung cancer being caused by asbestos

. I want to point out one other case, which is the Levere case? This was cited in our briefs, 8.79, 2.11, 86. And in that case, there was a, again, a motion and findings were involving a government counter claim against an SBA borrower. And the court, in this case said that it is the function of the and whether the record supports its findings. Here, the district court simply did not undertake any poolous balancing, although some reviewing courts in the absence of a district court analysis have applied their own poolous test. We do not undertake this task here as it would require factual findings, not within the parameters of our review. We therefore, determined the case must be remanded. That's the scenario that should be applied here, because certainly, again, within his discretion, Judge Rubino can make specific findings under poolous and specific findings as to which standard is actually needing to be satisfied, neither happened in this case. The poolous, the absence of the poolous findings in cells is an abuse of discretion. Did you find that we adequately applied the poolous factors in the November order? No. No, he didn't make any. There was no appeal. There are over 70 plaintiffs in that case. That made, there was a large number, yes. Yeah. And in many instances, because of the large volume of cases that we're dealing with, and you look back over time, the merits of the cases may not be as good as they as they need to be for going forward for trial because of the age of many of these cases. These cases, many instances, have been pending for 15, 20 years. They may not have met this standard of impairment if you treat that as a requirement in his finding in November. Well, what about, we have three plaintiffs, Gricks, Rizinski, and Arda. What did the judge do wrong in those cases? In those cases, the medical records show that there's an impairment or in the case of Gricks and Rizinski, there's certainly a maritalist claim for lung cancer also. Medical reports didn't show that, did they? The medical reports in Errant, well, here from the defendants on that. Right. They show that he had actually got to send my notes. Errant had treated findings, meaning his own physicians, before the biomedical experts were hired, found the fusions, plural effusions, adelectic, sort of, a lung, restrictive lung disease, and asbestosis

. Those findings are all mentioned in his medical records. In Errant's. In Errant's, right? You don't have that in the other two. That's correct. The other two are strictly on the lung cancer basis. There are maritalist claims under pullus that should be sent back, because if you balance the factors. You're saying with Bricks and Rizinski, you did comply with the administrative order number 12? Right. We're saying we did comply to the extent that these people have a lung cancer. We were saying, though, we did not have the causation letter under AO 12. You can see that. At the time, yes. And why doesn't that do them? Those. They feel them. Because if the only thing that I would say on those two judges is if you look at the findings for the, the pleadings alleging lung cancer, you look at the pool as factors. These gentlemen had maritalist claims. They had histories of asbestos exposure and they had lung cancer. If you apply the Helsinki criteria, that would be a sufficient basis for causation. But so the pool as factors trumped the administrative order in an MDO? The requirement of the pool as findings is necessary. Well, then what what value is having an administrative order like AO 12? If you can come in and say, well, we didn't comply with it. And but nonetheless, we think we have a maritalist claim. AO 12 has a has a great value. And the value is is evident in that many, many cases did not survive AO 12. And only a small handful of the cases are on appeal here. Because of the failure to find the pool as factors in that group and our evaluation of these cases as being maritalist cases that should go for. So are you saying in all those other, all those other cases that didn't survive that the pool as factors were not applicable? I'm not saying they're not applicable

. I'm simply saying that it would be futile to bring all those cases to this court based on the judgment that our firm had. And that's the function of AO 12 is to screen out a lot of cases where something can't be proved. So a lot of them were challenged on the basis of the lack of exposure history and were arguably properly thrown out. Is that correct? That's I believe correct. Yes. In the sense that our firm is not contesting those findings. But you did oppose dismissal at the district court level. You just are not challenging the judges' ruling. I'm not sure. Is that any of the 70 some cases that were just missed in November? I'm not sure. We contested everyone in those cases. I just don't know. I only know the record on these 12 and the general history of the rest. Now we've got 41. This is a 41D. So is that different? A 41B is exactly what pool is intended to govern. I think my time is up. Any other questions? Do you have you had some rebuttal time? Yes, I reserve four minutes for a vote. Very good. What I've done. Thank you very much, Mr. McCoy. Mr. Holland. Good morning

. Good morning again, Your Honours. Danny Moe Holland on behalf of all the appellaries. We think we submit to the court the AO-12 administrative order that we're here are going about today falls comfortably within the district court's broad discretion to manage its docket. In fact, we think it's within the essential discretion that the district court must have to manage its docket, particularly in a proceeding like the one that this appeal arises from, the asbestos MVL, which had 150,000 plaintiffs in it. 2007, which had over 8 million plaintiffs. But all the more reason that an order of that kind should be specific. And if something's going to be thrown out based upon a lack of exposure history, should not the administrative order have said that the diagnosis must include XYZ to put people on notice. There's no question here that these plaintiffs were on notice. The or as I'm sure the court is aware, AO-12 says you must submit a medical report. It must be based on objective and subjective criteria. And it must be sufficient to withstand a dispositive motion. By 2007, in the asbestos litigation really long before that, what that meant to people who do this every day was very clear. And to the extent that everybody did it, all of the submissions that were filed for ZO-12 had complete exposure histories. Well, if they were to comply with AO-12, they would have had complete exposure histories. There were many that didn't comply. But the ones that the thousands of them did, you're saying. They either did, or the cases were dismissed, or they went out in another direction under AO-12. To the tune of about 140,000 plaintiffs, and the interesting, and I think a remarkable thing about that is that those that huge number of plaintiffs had their cases resolved as far as the MDL proceeding was concerned. I'm not saying family resolved, but as far as the MDL proceeding is concerned, without funding this court with appeals, without really much wailing and gnashing the thief at all. As a matter of fact, everybody knew the game, not the game, but everybody knew the rules, proceeded according to those rules, and then their business. But this group, and it's not even this group, as one of your honors mentioned earlier, scores of these cases were dismissed and not appeal. They were dismissed for the very same grounds that the 12 cases that we're here about today were dismissed by the same lawyers, by the same judge, in the same orders even, and those cases weren't appeal. But there's even a better reason why they were on notice. This is where the notice issue stopped. On November 14, 2011, Judge Rubrino issued his first AO-12 order in the CDLO cases, and said, explaining, applying AO-12, what this means is you've got to have a complete and comprehensive occupational and exposure history

. And so from that point on, certainly these plaintiffs, these lawyers should have known that, did know that, because as somebody pointed out, 70 or so other cases got dismissed on that day, none appealed, but all dismissed. So what about the ones that, before November? I'm not sure. The first order of dismissal, my understanding, was in November 11, 2011. The cases that we are here on today got dismissed in March of 2012, and then I believe January of 2013. But the three. The three, Aaron and the two B's were the November 14, 2011. No, they were on March 13. They were on March 13. Or later. I think there was one, there's staff case was in January of 2013. Eight were from March, three from, now you're confusing me, I thought they were 11 from March. 11 from March, one from January of 2013. I'm sorry. So there is no doubt at that point. It could be no doubt that that is exactly what this order meant, because Judge Rubino was dismissing cases with prejudice on that basis. But how about now? How about the pool? Forget notice, how about the poolers factors? Should he not have analyzed those in connection with these cases in March the way he referenced back in November? I think he did. I think he incorporated his, first I think Judge Rubino and his March order. The poolers appear in that March order? That word? I believe his, I believe in the, maybe in a footnote, he references his findings regarding that in his March order. But doesn't poolers require that you really look at the cases and apply the factors? I think it does and I think he did. Keep in mind, excuse me, you're right, keep in mind that functionally, although these are different plaintiffs, and each one is entitled to his date in court, it's not making that argument. For our purposes here today though, these cases are functionally identical. They all suffer the same problem. They have different names and they have different facts in some instances, but at the end of the day, they're dismissed with the exception of the Brent's and Brzezinski cases, which I'll speak to in a minute. They're dismissed basically on the same basis. Because the lawyers didn't supply the history, it's not that they are not maritalist claims, it's that something wasn't filed. Why shouldn't we send it back for an analysis specific analysis under poolers? Because Judge Reno has to be able to manage his document. The first thing that he did in 2007, after all these cases had accumulated, was to enter an order requiring the plaintiffs to produce prima facia evidence that they have a claim. You're making the MDL into a substantive event or a substantive handling. We're really all it's doing is supposed to centralize for purpose of pretrial proceedings. We're saying the substantive law applies differently in an MDL than it does in other cases because the Judge needs to manage his document. You honor there are plenty of cases where case management orders have been entered in MDLs, which have had the result of dismissals. We cite these in operation right there in May. Akuna out of the fifth circuit is another leading case. The final propel no mean case out of the ninth circuit, all of which stand for the proposition that the district court in this case is able to do things like enter these for lack of a better word, term of art loan pine orders, as one of his tools for managing the cases. Without that, what you have is what you would have, what this circuit would still be burdened with, is what it was burdened with in 2007. That is 150,000 cases which weren't going anywhere. So clearly the district court in an MDL proceeding has broad discretion. Certainly broad enough to enter in order like this. But let me understand what you're saying. You're saying that pool of supplies, but it really doesn't have to be performed in I'm not saying that at all. I'm saying, Joseph Reno got it exactly right and what he wrote about POS. He says there's no magic formula under POS. He says here are the POS factors and they're important. He then makes findings which are relevant to those factors. For example, he talks about the willfulness of the plaintiffs in failing to provide a grant for the plaintiffs. He says that the plaintiffs have had compliant AO 12 reports. But that's the same connection with the November dismissals. Correct, you're on. That should be viewed as applicable to the March dismissals Israel. Absolutely

. Why shouldn't we send it back for an analysis specific analysis under poolers? Because Judge Reno has to be able to manage his document. The first thing that he did in 2007, after all these cases had accumulated, was to enter an order requiring the plaintiffs to produce prima facia evidence that they have a claim. You're making the MDL into a substantive event or a substantive handling. We're really all it's doing is supposed to centralize for purpose of pretrial proceedings. We're saying the substantive law applies differently in an MDL than it does in other cases because the Judge needs to manage his document. You honor there are plenty of cases where case management orders have been entered in MDLs, which have had the result of dismissals. We cite these in operation right there in May. Akuna out of the fifth circuit is another leading case. The final propel no mean case out of the ninth circuit, all of which stand for the proposition that the district court in this case is able to do things like enter these for lack of a better word, term of art loan pine orders, as one of his tools for managing the cases. Without that, what you have is what you would have, what this circuit would still be burdened with, is what it was burdened with in 2007. That is 150,000 cases which weren't going anywhere. So clearly the district court in an MDL proceeding has broad discretion. Certainly broad enough to enter in order like this. But let me understand what you're saying. You're saying that pool of supplies, but it really doesn't have to be performed in I'm not saying that at all. I'm saying, Joseph Reno got it exactly right and what he wrote about POS. He says there's no magic formula under POS. He says here are the POS factors and they're important. He then makes findings which are relevant to those factors. For example, he talks about the willfulness of the plaintiffs in failing to provide a grant for the plaintiffs. He says that the plaintiffs have had compliant AO 12 reports. But that's the same connection with the November dismissals. Correct, you're on. That should be viewed as applicable to the March dismissals Israel. Absolutely. Even though it's not really referenced. So there is no question. But that these plaintiffs, these lawyers knew what was required. There is no question from the AO 12 order. AO 12? I would submit to you. But even nobody, nobody is able to argue that ignorance beyond November 14, 2011, when Judge Reno issued his first dismissal because at that, it's in plain and dead. Instead, hadn't that the plaintiffs' counsel should have moved to supplement their AO 12 reports at that point in time? If they had something, they didn't supplement at any point. Even as we stand here today, there are not compliant reports in these cases. Now, had there been a motion to supplement in late November of 2011? Maybe we had a different case, but there wasn't. Now, here's another point. This is critical. And argument sort of weaves its way through the brief, through the plaintiffs' briefs and was a certain extent mentioned today, that perhaps the thing to do is to cobble together information, some of which, but very actually little of which, was submitted in response to AO 12, some of which might be in the complaint, some of which might be in those documents here, and some of which might be in the interrogatory answers here, and somehow the sum of all that is sufficient to provide, as relevant to the purposes we're here today, a complete exposure history. But that's not what the purpose of AO 12 was. The purpose of AO 12 was to get a medical report where a doctor says, here is the reason why this plaintiff has a disease associated with inhalation of asbestos fibers. And if we take the jigsaw approach and pull in pieces from everywhere, we don't get that. We don't have that assurance of reliability. So, that's not sufficient. So it's not sufficient that there's something in the record. It's what is required, according to your view, is that the doctor have had it as part of the diagnosis. Well, my view as well as Jesu Brino's view as expressed in AO 12 requiring the medical report. Well, as the essential requirement of the doctor, the November 14 argument that the standards for the diagnosis include this. I'm sorry. I'm sorry. And as, I mean, the AO 12 is very general. But the November 14 article refers to the standard of a diagnosis as requiring

. Even though it's not really referenced. So there is no question. But that these plaintiffs, these lawyers knew what was required. There is no question from the AO 12 order. AO 12? I would submit to you. But even nobody, nobody is able to argue that ignorance beyond November 14, 2011, when Judge Reno issued his first dismissal because at that, it's in plain and dead. Instead, hadn't that the plaintiffs' counsel should have moved to supplement their AO 12 reports at that point in time? If they had something, they didn't supplement at any point. Even as we stand here today, there are not compliant reports in these cases. Now, had there been a motion to supplement in late November of 2011? Maybe we had a different case, but there wasn't. Now, here's another point. This is critical. And argument sort of weaves its way through the brief, through the plaintiffs' briefs and was a certain extent mentioned today, that perhaps the thing to do is to cobble together information, some of which, but very actually little of which, was submitted in response to AO 12, some of which might be in the complaint, some of which might be in those documents here, and some of which might be in the interrogatory answers here, and somehow the sum of all that is sufficient to provide, as relevant to the purposes we're here today, a complete exposure history. But that's not what the purpose of AO 12 was. The purpose of AO 12 was to get a medical report where a doctor says, here is the reason why this plaintiff has a disease associated with inhalation of asbestos fibers. And if we take the jigsaw approach and pull in pieces from everywhere, we don't get that. We don't have that assurance of reliability. So, that's not sufficient. So it's not sufficient that there's something in the record. It's what is required, according to your view, is that the doctor have had it as part of the diagnosis. Well, my view as well as Jesu Brino's view as expressed in AO 12 requiring the medical report. Well, as the essential requirement of the doctor, the November 14 argument that the standards for the diagnosis include this. I'm sorry. I'm sorry. And as, I mean, the AO 12 is very general. But the November 14 article refers to the standard of a diagnosis as requiring. Absolutely. I think AO 12 is not that general, but certainly the November 14 order is painfully specific. Was painfully specific to 70-blanis who didn't appeal, by the way. Bricks and Brzynski pays 36 of the plan as brief. They acknowledge that they don't comply with AO 12. Arent, A-R-E-N-D-T, that was one of the 12 plaintiffs. The plaintiffs did not submit as part of the AO 12 submissions, a medical report with a diagnosis of an asbestos-related disease. This is outlined in our brief, but just to address something that was brought up earlier. They did a CT scan. They did submit a CT scan without a diagnosis. There were other materials that the plaintiffs submitted on appeal. I believe in, and later in the district court, but not in response to AO 12. None of those materials were either submitted in response to AO 12, or did they not contain a comprehensive exposure history. So Arent is still out. Clearly, the remainder of the cases are out for the lack of a complete comprehensive exposure history. And then, Your Honor, let me- I just have one quick question. Is your contention that we should view the reports of Dr. Skomfeld, Anderson and St. Act as medical screeners reports, that they were just screeners as opposed to, you know, and look at them a little more scrutiny? Dr. Skomfeld has diagnosed more than 50,000 people with asbestos. So he clearly was a screener. Now, it's not required for this court to be in this side. Okay. But doesn't- I thought AO 12 requires a hearing if we got a problem with the screen. AO 12 sets forth the medical report requirement

. Absolutely. I think AO 12 is not that general, but certainly the November 14 order is painfully specific. Was painfully specific to 70-blanis who didn't appeal, by the way. Bricks and Brzynski pays 36 of the plan as brief. They acknowledge that they don't comply with AO 12. Arent, A-R-E-N-D-T, that was one of the 12 plaintiffs. The plaintiffs did not submit as part of the AO 12 submissions, a medical report with a diagnosis of an asbestos-related disease. This is outlined in our brief, but just to address something that was brought up earlier. They did a CT scan. They did submit a CT scan without a diagnosis. There were other materials that the plaintiffs submitted on appeal. I believe in, and later in the district court, but not in response to AO 12. None of those materials were either submitted in response to AO 12, or did they not contain a comprehensive exposure history. So Arent is still out. Clearly, the remainder of the cases are out for the lack of a complete comprehensive exposure history. And then, Your Honor, let me- I just have one quick question. Is your contention that we should view the reports of Dr. Skomfeld, Anderson and St. Act as medical screeners reports, that they were just screeners as opposed to, you know, and look at them a little more scrutiny? Dr. Skomfeld has diagnosed more than 50,000 people with asbestos. So he clearly was a screener. Now, it's not required for this court to be in this side. Okay. But doesn't- I thought AO 12 requires a hearing if we got a problem with the screen. AO 12 sets forth the medical report requirement. We then file motions to dismiss where that requirement was not satisfied. There was a hearing on those, and I- No, no, but there are certain screeners that are suspect because of past history. In those cases, isn't the hearing required before dismissal? I'm not sure how to answer that question. There were other screeners who were suspect on which we file motions and there were hearings. So I think maybe the answer to that is yes or at least that's what happened. I see my time's up. I'll be here. Were there cases where supplemental submissions were made after the November 14th order? There were various plaintiffs in your cases. There was one case, the Duffy case, where a supplemental submission, non-compliant mind you, but was made. So I don't really think the issue is at this point. I don't know what would have been, frankly, would have been the case back then. But certainly they knew how to supplement if they wanted to. They just didn't. And so we're left with what AO 12 submissions there are. One final point. All of the stuff that's in the appendices in this case, not all of that was submitted in response to AO 12. So with respect to Judge Rubrina's findings that the AO 12 materials were not compliant, those are subject to a, in my view, the fact that finding the fact is subject to a clearly erroneous standard and there's no showing that that's clearly. I was going to ask that question about Michaels for instance. We have a number of papers at 240 appendix. It says administrative order 12 submissions. And it has exhibits are were all of those submitted as a administrative order 12 submissions. Give two answers to this question. Here's what my notes say about that. And I have this committee memory. The AO 12 submission was appendix at 247 to 255

. We then file motions to dismiss where that requirement was not satisfied. There was a hearing on those, and I- No, no, but there are certain screeners that are suspect because of past history. In those cases, isn't the hearing required before dismissal? I'm not sure how to answer that question. There were other screeners who were suspect on which we file motions and there were hearings. So I think maybe the answer to that is yes or at least that's what happened. I see my time's up. I'll be here. Were there cases where supplemental submissions were made after the November 14th order? There were various plaintiffs in your cases. There was one case, the Duffy case, where a supplemental submission, non-compliant mind you, but was made. So I don't really think the issue is at this point. I don't know what would have been, frankly, would have been the case back then. But certainly they knew how to supplement if they wanted to. They just didn't. And so we're left with what AO 12 submissions there are. One final point. All of the stuff that's in the appendices in this case, not all of that was submitted in response to AO 12. So with respect to Judge Rubrina's findings that the AO 12 materials were not compliant, those are subject to a, in my view, the fact that finding the fact is subject to a clearly erroneous standard and there's no showing that that's clearly. I was going to ask that question about Michaels for instance. We have a number of papers at 240 appendix. It says administrative order 12 submissions. And it has exhibits are were all of those submitted as a administrative order 12 submissions. Give two answers to this question. Here's what my notes say about that. And I have this committee memory. The AO 12 submission was appendix at 247 to 255. The remainder of the appendix regarding Mr. Michaels was not part of the AO 12 submission. So for example, they were in a regulatory exerb at 256 to 61, not an AO 12 submission. There were medical records it exerbs 262 to 266, not an AO 12 submission. And I believe that's comprehensive as to these submissions that were made on Mr. Michaels. That is only a fraction of them. Okay. So that's not clear. But more generally, Judge Rubrina's findings as to, he was there. And his findings as to the sufficiency of those AO 12 submissions are finding the fact which are not, or had not been demonstrated to be clearly one. I may be mischaracterizing plaintiffs position, but I'm wrong. But I think he's saying that irrespective of AO 12 and also what was said forth in the November. Order that the MDL transfer each judge in this kind of case has in this circuit has to apply the pool effectors so that if there is some merit, plausible or conceivable merit, even though it is not spelled out in the in the response to the AO 12 order, we still have to send it back and have the district judge go through all the pool effectors. The meritoriousness, you want me to comment on that? No, yeah. The meritoriousness of the claim is the sixth pool effector. There are five others. I understand. And even though a claim could conceivably be meritorious, there are circumstances in which either a party or as lawyers or whatever are so intransigent. Exhibits such a history of delitorianist, delitorianistness. And I could go on, for example, that those outweigh that you can still lose. You can have a meritorious claim and still manage to mess it up and lose and get dismissed. That's what happened here. The court laid out the path for them to follow. Put signpost along the way and they refused to follow, failed to follow

. The remainder of the appendix regarding Mr. Michaels was not part of the AO 12 submission. So for example, they were in a regulatory exerb at 256 to 61, not an AO 12 submission. There were medical records it exerbs 262 to 266, not an AO 12 submission. And I believe that's comprehensive as to these submissions that were made on Mr. Michaels. That is only a fraction of them. Okay. So that's not clear. But more generally, Judge Rubrina's findings as to, he was there. And his findings as to the sufficiency of those AO 12 submissions are finding the fact which are not, or had not been demonstrated to be clearly one. I may be mischaracterizing plaintiffs position, but I'm wrong. But I think he's saying that irrespective of AO 12 and also what was said forth in the November. Order that the MDL transfer each judge in this kind of case has in this circuit has to apply the pool effectors so that if there is some merit, plausible or conceivable merit, even though it is not spelled out in the in the response to the AO 12 order, we still have to send it back and have the district judge go through all the pool effectors. The meritoriousness, you want me to comment on that? No, yeah. The meritoriousness of the claim is the sixth pool effector. There are five others. I understand. And even though a claim could conceivably be meritorious, there are circumstances in which either a party or as lawyers or whatever are so intransigent. Exhibits such a history of delitorianist, delitorianistness. And I could go on, for example, that those outweigh that you can still lose. You can have a meritorious claim and still manage to mess it up and lose and get dismissed. That's what happened here. The court laid out the path for them to follow. Put signpost along the way and they refused to follow, failed to follow. And they did it repeatedly. They did it November, got 70 dismissed. It is March. And then later in these other cases that the court's got coming down by plan. So merely because one has a potentially meritorious case does not give you a pass on all the procedural safeguards and procedural requirements that the courts, either in an MDL or just in a regular case, might impose. Well, that may be true, but somebody doesn't, somebody need to say that that underpulles these are outweighed and would either be us or if we can do it from the record or the district court on remand. I think the district court did say that in its November order as it applies to the March cases. As it applies to a case that it hasn't seen in March. Well, it had seen them in March and that's when he picked up the, that's when I would suggest that you picked up the March or picked up the November order in March. Thank you. Thank you. Mr. McCoy. I want to talk about one other poolist case for a moment in terms of the importance of poolist to all cases in the third circuit, including MDL cases. The next case of, this was not a published opinion, but it's in 236, effipendic 740. And this was a 2007 decision. This didn't involve justice. Manesky is a, is a district court judge. I think I was reversed on that one, but go ahead. Oh, yes, you took that, maybe I don't have read it. We got permission from the bench, but it says before dismissing an action, this is a third circuit. A district court is required to make explicit findings regarding the factors enumerated in the poolist decision. So it's, it's again, another statement that the poolist decision is mandatory. And these, these are not just mass torts of, of some small amount of value here. These people have serious conditions

. And they did it repeatedly. They did it November, got 70 dismissed. It is March. And then later in these other cases that the court's got coming down by plan. So merely because one has a potentially meritorious case does not give you a pass on all the procedural safeguards and procedural requirements that the courts, either in an MDL or just in a regular case, might impose. Well, that may be true, but somebody doesn't, somebody need to say that that underpulles these are outweighed and would either be us or if we can do it from the record or the district court on remand. I think the district court did say that in its November order as it applies to the March cases. As it applies to a case that it hasn't seen in March. Well, it had seen them in March and that's when he picked up the, that's when I would suggest that you picked up the March or picked up the November order in March. Thank you. Thank you. Mr. McCoy. I want to talk about one other poolist case for a moment in terms of the importance of poolist to all cases in the third circuit, including MDL cases. The next case of, this was not a published opinion, but it's in 236, effipendic 740. And this was a 2007 decision. This didn't involve justice. Manesky is a, is a district court judge. I think I was reversed on that one, but go ahead. Oh, yes, you took that, maybe I don't have read it. We got permission from the bench, but it says before dismissing an action, this is a third circuit. A district court is required to make explicit findings regarding the factors enumerated in the poolist decision. So it's, it's again, another statement that the poolist decision is mandatory. And these, these are not just mass torts of, of some small amount of value here. These people have serious conditions. And that's one reason why we've got a small group on appeal that has significant value when people have lung cancer and they die from it. And they've got significant asbestos exposure. That's the importance of this group of cases. But if the lawyer doesn't come forward with, you know, sufficient showing, I mean, that happens all the time. A lot of meritorious cases get thrown out because the lawyer has not complied with whatever he or she has to comply with. And why should we not say, well, the November, you know, these, the March situation really follows form to November. So the judge doesn't have to, you know, repeat his opinion every time he dismisses the case. Well, it certainly can have an application to cases going forward the November order. But the, isn't this, isn't this a way an orderly and deal transfer, a judgment proceed? Right. We're not questioning that, that aspect of it. You're right. But we are questioning again, the poolest findings are missing here in applying even that, that November order of 2011 of Judge Rubino. These ten of these 12 people in this group, Consolidate group, have medical causation reports from qualified witnesses who's challenges or whose expert qualifications are not challenged. There was a reference to Dr. Schoenfeld in the MDL proceedings in my law firm's cases. The defendant's dropped any challenge to him. There was a series of proceedings in the, at the end of it all just dropped any challenge to his abilities. So we have causation reports and the sufficiency of those reports, if that's, if that's to be evaluated in terms of their merit or a poisonous and other factors under pooless, that has to be done. Let me give three quick examples of these cases. Okay. First off, there's the Hansen case, which I think might go under Dellenbach also. That's the victim in the special administrator, different names. That's a lung cancer case. He had 30 plus years of asbestos work as an asbestos worker, meaning holding the product in his hands every day for a period of 30 years. He was diagnosed with underlying asbestos

. And that's one reason why we've got a small group on appeal that has significant value when people have lung cancer and they die from it. And they've got significant asbestos exposure. That's the importance of this group of cases. But if the lawyer doesn't come forward with, you know, sufficient showing, I mean, that happens all the time. A lot of meritorious cases get thrown out because the lawyer has not complied with whatever he or she has to comply with. And why should we not say, well, the November, you know, these, the March situation really follows form to November. So the judge doesn't have to, you know, repeat his opinion every time he dismisses the case. Well, it certainly can have an application to cases going forward the November order. But the, isn't this, isn't this a way an orderly and deal transfer, a judgment proceed? Right. We're not questioning that, that aspect of it. You're right. But we are questioning again, the poolest findings are missing here in applying even that, that November order of 2011 of Judge Rubino. These ten of these 12 people in this group, Consolidate group, have medical causation reports from qualified witnesses who's challenges or whose expert qualifications are not challenged. There was a reference to Dr. Schoenfeld in the MDL proceedings in my law firm's cases. The defendant's dropped any challenge to him. There was a series of proceedings in the, at the end of it all just dropped any challenge to his abilities. So we have causation reports and the sufficiency of those reports, if that's, if that's to be evaluated in terms of their merit or a poisonous and other factors under pooless, that has to be done. Let me give three quick examples of these cases. Okay. First off, there's the Hansen case, which I think might go under Dellenbach also. That's the victim in the special administrator, different names. That's a lung cancer case. He had 30 plus years of asbestos work as an asbestos worker, meaning holding the product in his hands every day for a period of 30 years. He was diagnosed with underlying asbestos. That case has merit. Wilhelm or Stafford case against special administrator and victim. He was testing asbestos breaks by machine. A causation letter was submitted for his lung cancer on a motion to reconsider. It was still denied. Or the case was still dismissed. He had bilateral asbestos disease in his treating physician records. He had fibrosis. He had plaques on both sides. These are findings of asbestos related diseases, according to the medical records when the causation reports. Mr. Zirp, he had fibrosis. He had asbestos. He had bilateral calcified plaques. 33 years in electrician. Insulating electrical furnaces and other asbestos work. These are in his records. He also has a causation letter for his non-molignant condition. These cases require the findings under police. In my correct, I would say, notwithstanding the standards set forth in November 14th order, the trial judge would have to go through a pull-us analysis for each case that he dismisses, even if there is non-compliance within November 14th order. Yes, and part of it would be to determine whether there is compliance with the November 14th order. The November 14th order doesn't tell us which standard to follow. It just says standard to record medical organizations. Our physicians are following such standards that we're exciting to. We pointed out that health sinky report and the criteria

. That case has merit. Wilhelm or Stafford case against special administrator and victim. He was testing asbestos breaks by machine. A causation letter was submitted for his lung cancer on a motion to reconsider. It was still denied. Or the case was still dismissed. He had bilateral asbestos disease in his treating physician records. He had fibrosis. He had plaques on both sides. These are findings of asbestos related diseases, according to the medical records when the causation reports. Mr. Zirp, he had fibrosis. He had asbestos. He had bilateral calcified plaques. 33 years in electrician. Insulating electrical furnaces and other asbestos work. These are in his records. He also has a causation letter for his non-molignant condition. These cases require the findings under police. In my correct, I would say, notwithstanding the standards set forth in November 14th order, the trial judge would have to go through a pull-us analysis for each case that he dismisses, even if there is non-compliance within November 14th order. Yes, and part of it would be to determine whether there is compliance with the November 14th order. The November 14th order doesn't tell us which standard to follow. It just says standard to record medical organizations. Our physicians are following such standards that we're exciting to. We pointed out that health sinky report and the criteria. But if you have not provided sufficient evidence for the court to determine maritalism, i.e., the judge thinks the diagnosis had to include that exposure history in order to be a valid diagnosis, and the diagnosis, aren't you in effect handicapping or what do I want to say? You're rendering it impossible for the court to actually weigh that because you haven't shown that it's maritalist. Well, that would be true. That would be true. That would be true if there wasn't an exposure history, but there was the factors I'm talking about are we're in the record now. The doctor would not form a causation opinion if there wasn't an exposure history. I can tell you that. That has to appear, doesn't that have to be apparent in the diagnosis that that was done? This is a medical diagnosis report and these diagnosing reports do state the espacess exposure history in a way sufficient for the physician to make the connection. They do state it. So you're saying it's adequate if the report says that somebody work as a plumber for 35 years and they were exposed asbestos at various times that's adequate. That's a merit or is a claim. Thank you. Any other questions? Thank you very much. Thank you Mr. McCoy, Mr. Holland. Thank you very much.

We can begin with the argument. We thought it would be a good idea to get the lay of the land here. We know that there are motions to consolidate, which we have not granted, but we may. Are there other counsel in the room that have cases that are also affected by the same subject matter? You're asking about the plan of the council? Yes, or defense council? We're doing plan of the council. Okay. We're good. One of both of you come up and just tell us. Are there other cases pending? We know there are some other cases in the pipeline here. We don't know whether you're involved with them or not. Yeah, yeah. And if defense council have an interest in this as well. For instance, I'm on a panel. Well, I know there is a panel in May that has other dismissals, and that's what it would be. Yes, there's for sure the landess group of cases, I call it. The present group, of course, there's two groups that were consolidated now. I told them 12 cases. There was 11, and then one, those are the two groups I call them. Are you involved in the cases in May? I don't know if we had a date set on that that I had seen, but I know the cases of ours. Are that are up that are part of the motion to consolidate our group that begins with landess. Okay. All right. And it's landess, Connor, and Svet and Srebra are the four cases. Note that's just been fully brief very recently. All right. Good. In the last probably week or so. Were those suicide dismissals? Those are dismissals, I believe, pursuant to the same types of orders that are involved here. Very close. I mean, that's why. Okay. Mr. Mahalin. Or you would be. Good morning, Danny Mohalin. My understanding is we're here on 12 cases today. I'll be arguing on behalf of all the appellees in those cases. I also understand that there are four additional cases that are in the pipeline. My firm is personally not involved in those cases, but there may be other defense counsel here today that are involved in those cases. Is anyone here involved in those other cases? You're under Thomas Ellingen. Yes. Like Mr. McCoy said, there are a group of other cases. I think they went in two waves. My client is in straver and Stafford. All right. In those are brief. I don't believe we have oral arguments set. Right. And were these again, Suis Frontier? It's been a similar situation. All right. All right. The cases where there's been a notice of appeal, but no briefing yet. Are you aware? Not that my client is involved in and not that I'm aware of. Okay. Good. Well, we'll try to sort it all out then. So it appears that the resolution of these cases here then may affect may affect other cases as well. And we'll have to sort that out. Well, good. Mr. McCoy, you ready to proceed? Yes. Yes. Yes, this is I'm all set here. Just got a little bit. I haven't grown that tall yet. I don't think I will. This set of cases that's before your honor, of course, comes from MDL 875, the asbestos litigation, which we are well aware of. MDL is. Which has been winding down. And I say that because looking at the narrowest possible grounds for resolving the issues before the court, there's no need here to be concerned with limiting the powers of the MDL judge, Judge Rubino. That's not necessary to resolve these cases. When I say that resolved in a way that the appellants planists would be prevailing here in this court, it's also not necessary to go past the abuse of discretion standard. That standard can be used here to resolve these cases. Are you saying that Judge Rubino did not need to explicate under pulleys any more than he did? I'm saying just the opposite. So you are saying that a judge in this situation his power is limited by pulleys? His power is limited because pulleys applies to all cases, not because it's an MDL, but because it applies to all cases, pulleys. What presidential opinion supports the application of pulleys in a non-suis-fonte context? I'm not certain if I understand what you mean by non. Well, here there's a motion to dismiss. Yes. There are motions to dismiss. One notice with time for response, responses for file, the judge entered an order. Pulleys involved in a suis-fonte the court on its own without a motion. Correct? That's correct. Okay. So I'm saying what presidential opinion of hours says that pulleys applies in a motion to dismiss context? In a 41-B context, pulleys findings are required. And certainly one case that I would point to is the decision in the United States of America versus 8 million in change and currency, which is a opinion of Justice Rendell. And that case states that when there is a dismissal on the merits such as here, and that case involved the discovery violation effectively, and that case the six factors had to be weighed. And the court criticized the district court for weighing only four of the six. Here, there was no findings at all on the pulleys factors. Another significant. And you say that was the 8 million dollar case was a motion to dismiss? Yes. I have to go back and read my own opinions. What about that? I'm sorry, I didn't want to interrupt the question here, but tell me a bit about the notice. Why? Why weren't you on notice here? A bit about the, I'm sorry. About the being on notice on the October. Notice that you were subject to dismissal under the. There's no question that there was notification that AO12 need to be met. That's not a concern here in terms of our position. We're not saying we were not on notice. What we're saying is we were on notice of a particular standard that existed originally starting in 2007, was changed in 2009. That was a standard that was being satisfied when these submissions were made. When the order came down in November of 2011, which is a subject of this appeal, the basis for the dismissals, that order created certain changes. Why weren't you on notice by the in October? Tell me. We were on notice of the order that was in place in 2000. All right, but what was the difference in the standard that you claim was changed? Difference in the standard. They're several. I mean, the November order was explicit saying exposure history required, right? And the motions were the bulk of the motions were filed thereafter, were they not? Some of these motions just came afterwards. Right. Some came in advance, though. Right. I'm sorry. I interrupted. You were going to say what changed in that order in response to the Jewish question. Right. So the change is that there was some requirement of an exposure history. That was one change. Another change was to require a finding of impairment. The problem with these changes was that they're still not well defined, because exposure history has many different standards in medical science. Well, what do you think it is? This, go ahead. I mean, you've been one of the disadvantages that I have as a judge is I don't live and breathe. Maybe that's another good verb. The asbestos cases, but you all do. What is it? What, when someone says you need complete exposure history in order to diagnose in order to identify causation in the context of medical parlance and proceeding with litigation, what does it mean? That's a jury question, typically. That's the first thing. It's the fact. It's a fact issue. It means when... Would you have to prove you're exposed to a certain product and you have to give a context, don't you? Right. And that comes down to the specific defendants. These, the AO-12 order is not about proving a case against a specific defendant. It's only about whether there's a medical diagnosing report sufficient to establish an asbestos related injury. It's a medical diagnosing report. It's not a detailed occupational exposure history such as you present to a jury defendant by a defendant. And the standards that are looked at in reference to Judge Rubino's opinion, he doesn't adopt any one of those. He references those. The standards are not the only ones that are out there because plaintiffs have cited additional standards. At trial, we use typically the Helsinki criteria with our experts. That's cited within our briefing here. The Helsinki criteria would require an overall long-term tenure, history of exposure approximately to diagnose a lung cancer. The radiographic findings alone can be enough. Yeah, but what? Oh, go ahead, sorry. And that standard is one of the many standards that can be used by the physicians. It's really dependent on the physicians as to which standards they want to go by. Are you saying that the submissions you had on file that you thought were in compliance with AO12? Were exactly what would have been required by virtue of pages 13, 14, and 15 of Judge Rubino's November 14th order? I'm saying, I'm saying if you look at what he said about needing an exposure history, yes, these are maritories claims. That's one of the poolous factors. The question is, are these maritories claims? We're not here deciding a despositive motion of the sufficiency of the evidence. That's why I say the abuse of discretion standard was violated in not making these poolous findings. There's a case- But at least that's the two plaintiffs, right? Brickson Brzynski, you can see that you didn't have adequate AO12 for reports. Yes, we did not have causation letters. We were relying on the allegations and the complaint which hadn't been contested of lung cancer being caused by asbestos. I want to point out one other case, which is the Levere case? This was cited in our briefs, 8.79, 2.11, 86. And in that case, there was a, again, a motion and findings were involving a government counter claim against an SBA borrower. And the court, in this case said that it is the function of the and whether the record supports its findings. Here, the district court simply did not undertake any poolous balancing, although some reviewing courts in the absence of a district court analysis have applied their own poolous test. We do not undertake this task here as it would require factual findings, not within the parameters of our review. We therefore, determined the case must be remanded. That's the scenario that should be applied here, because certainly, again, within his discretion, Judge Rubino can make specific findings under poolous and specific findings as to which standard is actually needing to be satisfied, neither happened in this case. The poolous, the absence of the poolous findings in cells is an abuse of discretion. Did you find that we adequately applied the poolous factors in the November order? No. No, he didn't make any. There was no appeal. There are over 70 plaintiffs in that case. That made, there was a large number, yes. Yeah. And in many instances, because of the large volume of cases that we're dealing with, and you look back over time, the merits of the cases may not be as good as they as they need to be for going forward for trial because of the age of many of these cases. These cases, many instances, have been pending for 15, 20 years. They may not have met this standard of impairment if you treat that as a requirement in his finding in November. Well, what about, we have three plaintiffs, Gricks, Rizinski, and Arda. What did the judge do wrong in those cases? In those cases, the medical records show that there's an impairment or in the case of Gricks and Rizinski, there's certainly a maritalist claim for lung cancer also. Medical reports didn't show that, did they? The medical reports in Errant, well, here from the defendants on that. Right. They show that he had actually got to send my notes. Errant had treated findings, meaning his own physicians, before the biomedical experts were hired, found the fusions, plural effusions, adelectic, sort of, a lung, restrictive lung disease, and asbestosis. Those findings are all mentioned in his medical records. In Errant's. In Errant's, right? You don't have that in the other two. That's correct. The other two are strictly on the lung cancer basis. There are maritalist claims under pullus that should be sent back, because if you balance the factors. You're saying with Bricks and Rizinski, you did comply with the administrative order number 12? Right. We're saying we did comply to the extent that these people have a lung cancer. We were saying, though, we did not have the causation letter under AO 12. You can see that. At the time, yes. And why doesn't that do them? Those. They feel them. Because if the only thing that I would say on those two judges is if you look at the findings for the, the pleadings alleging lung cancer, you look at the pool as factors. These gentlemen had maritalist claims. They had histories of asbestos exposure and they had lung cancer. If you apply the Helsinki criteria, that would be a sufficient basis for causation. But so the pool as factors trumped the administrative order in an MDO? The requirement of the pool as findings is necessary. Well, then what what value is having an administrative order like AO 12? If you can come in and say, well, we didn't comply with it. And but nonetheless, we think we have a maritalist claim. AO 12 has a has a great value. And the value is is evident in that many, many cases did not survive AO 12. And only a small handful of the cases are on appeal here. Because of the failure to find the pool as factors in that group and our evaluation of these cases as being maritalist cases that should go for. So are you saying in all those other, all those other cases that didn't survive that the pool as factors were not applicable? I'm not saying they're not applicable. I'm simply saying that it would be futile to bring all those cases to this court based on the judgment that our firm had. And that's the function of AO 12 is to screen out a lot of cases where something can't be proved. So a lot of them were challenged on the basis of the lack of exposure history and were arguably properly thrown out. Is that correct? That's I believe correct. Yes. In the sense that our firm is not contesting those findings. But you did oppose dismissal at the district court level. You just are not challenging the judges' ruling. I'm not sure. Is that any of the 70 some cases that were just missed in November? I'm not sure. We contested everyone in those cases. I just don't know. I only know the record on these 12 and the general history of the rest. Now we've got 41. This is a 41D. So is that different? A 41B is exactly what pool is intended to govern. I think my time is up. Any other questions? Do you have you had some rebuttal time? Yes, I reserve four minutes for a vote. Very good. What I've done. Thank you very much, Mr. McCoy. Mr. Holland. Good morning. Good morning again, Your Honours. Danny Moe Holland on behalf of all the appellaries. We think we submit to the court the AO-12 administrative order that we're here are going about today falls comfortably within the district court's broad discretion to manage its docket. In fact, we think it's within the essential discretion that the district court must have to manage its docket, particularly in a proceeding like the one that this appeal arises from, the asbestos MVL, which had 150,000 plaintiffs in it. 2007, which had over 8 million plaintiffs. But all the more reason that an order of that kind should be specific. And if something's going to be thrown out based upon a lack of exposure history, should not the administrative order have said that the diagnosis must include XYZ to put people on notice. There's no question here that these plaintiffs were on notice. The or as I'm sure the court is aware, AO-12 says you must submit a medical report. It must be based on objective and subjective criteria. And it must be sufficient to withstand a dispositive motion. By 2007, in the asbestos litigation really long before that, what that meant to people who do this every day was very clear. And to the extent that everybody did it, all of the submissions that were filed for ZO-12 had complete exposure histories. Well, if they were to comply with AO-12, they would have had complete exposure histories. There were many that didn't comply. But the ones that the thousands of them did, you're saying. They either did, or the cases were dismissed, or they went out in another direction under AO-12. To the tune of about 140,000 plaintiffs, and the interesting, and I think a remarkable thing about that is that those that huge number of plaintiffs had their cases resolved as far as the MDL proceeding was concerned. I'm not saying family resolved, but as far as the MDL proceeding is concerned, without funding this court with appeals, without really much wailing and gnashing the thief at all. As a matter of fact, everybody knew the game, not the game, but everybody knew the rules, proceeded according to those rules, and then their business. But this group, and it's not even this group, as one of your honors mentioned earlier, scores of these cases were dismissed and not appeal. They were dismissed for the very same grounds that the 12 cases that we're here about today were dismissed by the same lawyers, by the same judge, in the same orders even, and those cases weren't appeal. But there's even a better reason why they were on notice. This is where the notice issue stopped. On November 14, 2011, Judge Rubrino issued his first AO-12 order in the CDLO cases, and said, explaining, applying AO-12, what this means is you've got to have a complete and comprehensive occupational and exposure history. And so from that point on, certainly these plaintiffs, these lawyers should have known that, did know that, because as somebody pointed out, 70 or so other cases got dismissed on that day, none appealed, but all dismissed. So what about the ones that, before November? I'm not sure. The first order of dismissal, my understanding, was in November 11, 2011. The cases that we are here on today got dismissed in March of 2012, and then I believe January of 2013. But the three. The three, Aaron and the two B's were the November 14, 2011. No, they were on March 13. They were on March 13. Or later. I think there was one, there's staff case was in January of 2013. Eight were from March, three from, now you're confusing me, I thought they were 11 from March. 11 from March, one from January of 2013. I'm sorry. So there is no doubt at that point. It could be no doubt that that is exactly what this order meant, because Judge Rubino was dismissing cases with prejudice on that basis. But how about now? How about the pool? Forget notice, how about the poolers factors? Should he not have analyzed those in connection with these cases in March the way he referenced back in November? I think he did. I think he incorporated his, first I think Judge Rubino and his March order. The poolers appear in that March order? That word? I believe his, I believe in the, maybe in a footnote, he references his findings regarding that in his March order. But doesn't poolers require that you really look at the cases and apply the factors? I think it does and I think he did. Keep in mind, excuse me, you're right, keep in mind that functionally, although these are different plaintiffs, and each one is entitled to his date in court, it's not making that argument. For our purposes here today though, these cases are functionally identical. They all suffer the same problem. They have different names and they have different facts in some instances, but at the end of the day, they're dismissed with the exception of the Brent's and Brzezinski cases, which I'll speak to in a minute. They're dismissed basically on the same basis. Because the lawyers didn't supply the history, it's not that they are not maritalist claims, it's that something wasn't filed. Why shouldn't we send it back for an analysis specific analysis under poolers? Because Judge Reno has to be able to manage his document. The first thing that he did in 2007, after all these cases had accumulated, was to enter an order requiring the plaintiffs to produce prima facia evidence that they have a claim. You're making the MDL into a substantive event or a substantive handling. We're really all it's doing is supposed to centralize for purpose of pretrial proceedings. We're saying the substantive law applies differently in an MDL than it does in other cases because the Judge needs to manage his document. You honor there are plenty of cases where case management orders have been entered in MDLs, which have had the result of dismissals. We cite these in operation right there in May. Akuna out of the fifth circuit is another leading case. The final propel no mean case out of the ninth circuit, all of which stand for the proposition that the district court in this case is able to do things like enter these for lack of a better word, term of art loan pine orders, as one of his tools for managing the cases. Without that, what you have is what you would have, what this circuit would still be burdened with, is what it was burdened with in 2007. That is 150,000 cases which weren't going anywhere. So clearly the district court in an MDL proceeding has broad discretion. Certainly broad enough to enter in order like this. But let me understand what you're saying. You're saying that pool of supplies, but it really doesn't have to be performed in I'm not saying that at all. I'm saying, Joseph Reno got it exactly right and what he wrote about POS. He says there's no magic formula under POS. He says here are the POS factors and they're important. He then makes findings which are relevant to those factors. For example, he talks about the willfulness of the plaintiffs in failing to provide a grant for the plaintiffs. He says that the plaintiffs have had compliant AO 12 reports. But that's the same connection with the November dismissals. Correct, you're on. That should be viewed as applicable to the March dismissals Israel. Absolutely. Even though it's not really referenced. So there is no question. But that these plaintiffs, these lawyers knew what was required. There is no question from the AO 12 order. AO 12? I would submit to you. But even nobody, nobody is able to argue that ignorance beyond November 14, 2011, when Judge Reno issued his first dismissal because at that, it's in plain and dead. Instead, hadn't that the plaintiffs' counsel should have moved to supplement their AO 12 reports at that point in time? If they had something, they didn't supplement at any point. Even as we stand here today, there are not compliant reports in these cases. Now, had there been a motion to supplement in late November of 2011? Maybe we had a different case, but there wasn't. Now, here's another point. This is critical. And argument sort of weaves its way through the brief, through the plaintiffs' briefs and was a certain extent mentioned today, that perhaps the thing to do is to cobble together information, some of which, but very actually little of which, was submitted in response to AO 12, some of which might be in the complaint, some of which might be in those documents here, and some of which might be in the interrogatory answers here, and somehow the sum of all that is sufficient to provide, as relevant to the purposes we're here today, a complete exposure history. But that's not what the purpose of AO 12 was. The purpose of AO 12 was to get a medical report where a doctor says, here is the reason why this plaintiff has a disease associated with inhalation of asbestos fibers. And if we take the jigsaw approach and pull in pieces from everywhere, we don't get that. We don't have that assurance of reliability. So, that's not sufficient. So it's not sufficient that there's something in the record. It's what is required, according to your view, is that the doctor have had it as part of the diagnosis. Well, my view as well as Jesu Brino's view as expressed in AO 12 requiring the medical report. Well, as the essential requirement of the doctor, the November 14 argument that the standards for the diagnosis include this. I'm sorry. I'm sorry. And as, I mean, the AO 12 is very general. But the November 14 article refers to the standard of a diagnosis as requiring. Absolutely. I think AO 12 is not that general, but certainly the November 14 order is painfully specific. Was painfully specific to 70-blanis who didn't appeal, by the way. Bricks and Brzynski pays 36 of the plan as brief. They acknowledge that they don't comply with AO 12. Arent, A-R-E-N-D-T, that was one of the 12 plaintiffs. The plaintiffs did not submit as part of the AO 12 submissions, a medical report with a diagnosis of an asbestos-related disease. This is outlined in our brief, but just to address something that was brought up earlier. They did a CT scan. They did submit a CT scan without a diagnosis. There were other materials that the plaintiffs submitted on appeal. I believe in, and later in the district court, but not in response to AO 12. None of those materials were either submitted in response to AO 12, or did they not contain a comprehensive exposure history. So Arent is still out. Clearly, the remainder of the cases are out for the lack of a complete comprehensive exposure history. And then, Your Honor, let me- I just have one quick question. Is your contention that we should view the reports of Dr. Skomfeld, Anderson and St. Act as medical screeners reports, that they were just screeners as opposed to, you know, and look at them a little more scrutiny? Dr. Skomfeld has diagnosed more than 50,000 people with asbestos. So he clearly was a screener. Now, it's not required for this court to be in this side. Okay. But doesn't- I thought AO 12 requires a hearing if we got a problem with the screen. AO 12 sets forth the medical report requirement. We then file motions to dismiss where that requirement was not satisfied. There was a hearing on those, and I- No, no, but there are certain screeners that are suspect because of past history. In those cases, isn't the hearing required before dismissal? I'm not sure how to answer that question. There were other screeners who were suspect on which we file motions and there were hearings. So I think maybe the answer to that is yes or at least that's what happened. I see my time's up. I'll be here. Were there cases where supplemental submissions were made after the November 14th order? There were various plaintiffs in your cases. There was one case, the Duffy case, where a supplemental submission, non-compliant mind you, but was made. So I don't really think the issue is at this point. I don't know what would have been, frankly, would have been the case back then. But certainly they knew how to supplement if they wanted to. They just didn't. And so we're left with what AO 12 submissions there are. One final point. All of the stuff that's in the appendices in this case, not all of that was submitted in response to AO 12. So with respect to Judge Rubrina's findings that the AO 12 materials were not compliant, those are subject to a, in my view, the fact that finding the fact is subject to a clearly erroneous standard and there's no showing that that's clearly. I was going to ask that question about Michaels for instance. We have a number of papers at 240 appendix. It says administrative order 12 submissions. And it has exhibits are were all of those submitted as a administrative order 12 submissions. Give two answers to this question. Here's what my notes say about that. And I have this committee memory. The AO 12 submission was appendix at 247 to 255. The remainder of the appendix regarding Mr. Michaels was not part of the AO 12 submission. So for example, they were in a regulatory exerb at 256 to 61, not an AO 12 submission. There were medical records it exerbs 262 to 266, not an AO 12 submission. And I believe that's comprehensive as to these submissions that were made on Mr. Michaels. That is only a fraction of them. Okay. So that's not clear. But more generally, Judge Rubrina's findings as to, he was there. And his findings as to the sufficiency of those AO 12 submissions are finding the fact which are not, or had not been demonstrated to be clearly one. I may be mischaracterizing plaintiffs position, but I'm wrong. But I think he's saying that irrespective of AO 12 and also what was said forth in the November. Order that the MDL transfer each judge in this kind of case has in this circuit has to apply the pool effectors so that if there is some merit, plausible or conceivable merit, even though it is not spelled out in the in the response to the AO 12 order, we still have to send it back and have the district judge go through all the pool effectors. The meritoriousness, you want me to comment on that? No, yeah. The meritoriousness of the claim is the sixth pool effector. There are five others. I understand. And even though a claim could conceivably be meritorious, there are circumstances in which either a party or as lawyers or whatever are so intransigent. Exhibits such a history of delitorianist, delitorianistness. And I could go on, for example, that those outweigh that you can still lose. You can have a meritorious claim and still manage to mess it up and lose and get dismissed. That's what happened here. The court laid out the path for them to follow. Put signpost along the way and they refused to follow, failed to follow. And they did it repeatedly. They did it November, got 70 dismissed. It is March. And then later in these other cases that the court's got coming down by plan. So merely because one has a potentially meritorious case does not give you a pass on all the procedural safeguards and procedural requirements that the courts, either in an MDL or just in a regular case, might impose. Well, that may be true, but somebody doesn't, somebody need to say that that underpulles these are outweighed and would either be us or if we can do it from the record or the district court on remand. I think the district court did say that in its November order as it applies to the March cases. As it applies to a case that it hasn't seen in March. Well, it had seen them in March and that's when he picked up the, that's when I would suggest that you picked up the March or picked up the November order in March. Thank you. Thank you. Mr. McCoy. I want to talk about one other poolist case for a moment in terms of the importance of poolist to all cases in the third circuit, including MDL cases. The next case of, this was not a published opinion, but it's in 236, effipendic 740. And this was a 2007 decision. This didn't involve justice. Manesky is a, is a district court judge. I think I was reversed on that one, but go ahead. Oh, yes, you took that, maybe I don't have read it. We got permission from the bench, but it says before dismissing an action, this is a third circuit. A district court is required to make explicit findings regarding the factors enumerated in the poolist decision. So it's, it's again, another statement that the poolist decision is mandatory. And these, these are not just mass torts of, of some small amount of value here. These people have serious conditions. And that's one reason why we've got a small group on appeal that has significant value when people have lung cancer and they die from it. And they've got significant asbestos exposure. That's the importance of this group of cases. But if the lawyer doesn't come forward with, you know, sufficient showing, I mean, that happens all the time. A lot of meritorious cases get thrown out because the lawyer has not complied with whatever he or she has to comply with. And why should we not say, well, the November, you know, these, the March situation really follows form to November. So the judge doesn't have to, you know, repeat his opinion every time he dismisses the case. Well, it certainly can have an application to cases going forward the November order. But the, isn't this, isn't this a way an orderly and deal transfer, a judgment proceed? Right. We're not questioning that, that aspect of it. You're right. But we are questioning again, the poolest findings are missing here in applying even that, that November order of 2011 of Judge Rubino. These ten of these 12 people in this group, Consolidate group, have medical causation reports from qualified witnesses who's challenges or whose expert qualifications are not challenged. There was a reference to Dr. Schoenfeld in the MDL proceedings in my law firm's cases. The defendant's dropped any challenge to him. There was a series of proceedings in the, at the end of it all just dropped any challenge to his abilities. So we have causation reports and the sufficiency of those reports, if that's, if that's to be evaluated in terms of their merit or a poisonous and other factors under pooless, that has to be done. Let me give three quick examples of these cases. Okay. First off, there's the Hansen case, which I think might go under Dellenbach also. That's the victim in the special administrator, different names. That's a lung cancer case. He had 30 plus years of asbestos work as an asbestos worker, meaning holding the product in his hands every day for a period of 30 years. He was diagnosed with underlying asbestos. That case has merit. Wilhelm or Stafford case against special administrator and victim. He was testing asbestos breaks by machine. A causation letter was submitted for his lung cancer on a motion to reconsider. It was still denied. Or the case was still dismissed. He had bilateral asbestos disease in his treating physician records. He had fibrosis. He had plaques on both sides. These are findings of asbestos related diseases, according to the medical records when the causation reports. Mr. Zirp, he had fibrosis. He had asbestos. He had bilateral calcified plaques. 33 years in electrician. Insulating electrical furnaces and other asbestos work. These are in his records. He also has a causation letter for his non-molignant condition. These cases require the findings under police. In my correct, I would say, notwithstanding the standards set forth in November 14th order, the trial judge would have to go through a pull-us analysis for each case that he dismisses, even if there is non-compliance within November 14th order. Yes, and part of it would be to determine whether there is compliance with the November 14th order. The November 14th order doesn't tell us which standard to follow. It just says standard to record medical organizations. Our physicians are following such standards that we're exciting to. We pointed out that health sinky report and the criteria. But if you have not provided sufficient evidence for the court to determine maritalism, i.e., the judge thinks the diagnosis had to include that exposure history in order to be a valid diagnosis, and the diagnosis, aren't you in effect handicapping or what do I want to say? You're rendering it impossible for the court to actually weigh that because you haven't shown that it's maritalist. Well, that would be true. That would be true. That would be true if there wasn't an exposure history, but there was the factors I'm talking about are we're in the record now. The doctor would not form a causation opinion if there wasn't an exposure history. I can tell you that. That has to appear, doesn't that have to be apparent in the diagnosis that that was done? This is a medical diagnosis report and these diagnosing reports do state the espacess exposure history in a way sufficient for the physician to make the connection. They do state it. So you're saying it's adequate if the report says that somebody work as a plumber for 35 years and they were exposed asbestos at various times that's adequate. That's a merit or is a claim. Thank you. Any other questions? Thank you very much. Thank you Mr. McCoy, Mr. Holland. Thank you very much