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In re Welding Fume Products Liability Litigation

December 5, 2008

IN RE: WELDING FUME PRODUCTS LIABILITY LITIGATION


The opinion of the court was delivered by: Judge O'malley Tolled Claims

(MDL Docket No. 1535)

ORDER

The Court now enters this "Tolled Claims Order" to set forth various administrative MDL procedures applicable to individuals who earlier entered into the "Tolling Agreement" and now seek to pursue their claims, and also to document certain agreements reached between the parties.

I. References to other Court Orders

As used in this Order, the following definitions apply. All of the Court Orders listed below may be viewed at the following website: www.ohnd.uscourts.gov.*fn1

Tolling Agreement -- docket no. 235, exh. 1.

Former MDL Plaintiff -- an individual who earlier filed a case that became a part of these MDL proceedings, and who then dismissed the case after entering into the Tolling Agreement. Claimant -- an individual who entered into the Tolling Agreement and who did not earlier file a case that became a part of these MDL proceedings. Tolled Claims -- claims asserted by individuals who entered into the Tolling Agreement and which are covered by the Tolling Agreement.*fn2

Tolled Case -- a case filed and previously dismissed by any Former MDL Plaintiff.

CMO-2 -- docket no. 405 (Second Amended Supplemental Case Management Order).

Fact Sheet -- docket no. 287, attachment 2 (also discussed in CMO-2 at 4).

CAO-1 -- docket no. 1724 (First Case Administration Order).

Notice of Diagnosis -- docket no. 1731 (also discussed in CAO-1 at 5-7).

Peripheral Defendant Order -- docket no. 1824.

PDDA -- docket no. 1824, exh. A (Peripheral Defendant Dismissal Agreement).

MDL Decisions -- Orders issued by the MDL court addressing the viability of various claims.*fn3

II. Tolling Agreement -- Background.

On August 19, 2008, Defendants notified plaintiffs they intended to terminate the parties' Tolling Agreement. As of the date of notification, about 11,800 claimants had entered into this Tolling Agreement. The Tolling Agreement tolled "[a]ny time periods for filing or pursuing claims and/or notices required to be given under applicable law in order to preserve rights to claims in any matters against Defendants involving claims of personal injury, loss of consortium, or any other damages allegedly caused by exposure to manganese in welding fumes."*fn4 The Tolling Agreement further stated that its termination date would be "the date 120 days after Plaintiffs' Lead Co-Counsel receive[s] written notice" of Defendants' intention to terminate.*fn5 Accordingly, the Tolling Agreement terminates 120 days after August 19, 2008, which is December 17, 2008. Pursuant to the terms of the Tolling Agreement, this termination is effective as to all individuals and all Defendants participating in the Tolling Agreement.

The Tolling Agreement permitted individuals to avoid a number of obligations otherwise imposed upon plaintiffs who were actively pursuing claims against the Defendants. These obligations included following the normal rules of civil procedure for initiating a formal case, compliance with certain Orders issued by the MDL Court, and so on. Some of the obligations that individuals may have avoided by entering into the Tolling Agreement include:

* filing a complaint and other documents required to commence an action, and paying the filing fee;

* serving each Defendant with copies of the summons and complaint;

* filing an amended complaint consistent with the Court's MDL Decisions (such as the Court's grant of summary judgment to certain Defendants on all claims brought against them in all Welding Fume cases);

* filing either an amended complaint or a stipulation of dismissal of certain Defendants, consistent with the PDDA (which sets out procedures for dismissing without prejudice certain Defendants against whom the Plaintiff was not asserting his principal claims);

* submitting a Fact Sheet to Defendants' Liaison Counsel, as required by CMO-II; and

* filing a Notice of Diagnosis, as required by CAO-1.

Now that the Tolling Agreement is terminating, the Court sets out below certain procedures that individuals who entered into the Tolling Agreement must now follow if they wish to pursue their Tolled Claims through formal litigation. These procedures are adopted pursuant to agreement of the parties and are designed to make clear how and when the parties must fulfill the obligations they earlier avoided by entering into the Tolling Agreement.

III. Categories of Individuals in the Tolling Agreement

The 11,800 claimants who entered into the Tolling Agreement did so in one of two different ways. First, certain individuals filed formal complaints that became a part of this MDL. This includes individuals who filed complaints: (1) directly in this MDL court; (2) in other federal courts, and the case was transferred to this MDL court; and (3) in state courts, and the case was removed to federal court and transferred to this MDL court. These individuals then dismissed their complaints and elected to enter into the Tolling Agreement. These individuals are referred to below as "Former MDL Plaintiffs," and the procedures they must follow if they wish to reinstitute their Tolled Claims are set out in Sections V and VII of this Order, below.

Second, certain individuals never filed a formal complaint that became a part of this MDL; they simply entered directly into the Tolling Agreement. This category includes: (a) individuals who never filed claims at all; and (b) individuals who entered into the Tolling Agreement after having commenced actions in state courts, if the individual dismissed his claims before any removal and completed transfer to the MDL. Individuals in this category are referred to below as "Claimants," and the procedures they must follow if they wish to reinstitute their Tolled Claims are set out in Sections V and VI of this Order, below.

As a general matter, the parties and the Court agree that a Former MDL Plaintiff may revive his previously-dismissed case by filing in this Court, on the docket for that case, a "Notice of Reinstitution of Tolled Case" (in a format similar to the example attached as Exhibit 3). The effect of this Notice will be to withdraw the plaintiff's previously-filed voluntary dismissal and to put the case back on the live docket. The parties and the Court further agree that a Claimant may pursue his Tolled Claims by filing a new complaint in any federal district court where venue is proper. The entirety of the required procedures for each category is set out below, in Sections V - VII of this Order.

IV. Separate Tolling Provision in the Peripheral Defendant Dismissal Agreement

Before setting out the procedures applicable to Tolled Claims, the Court makes clear how the Tolling Agreement interacts with the PDDA. Separate from the Tolling Agreement, the parties entered into a Peripheral Defendants Dismissal Agreement ("PDDA"), which was adopted by the Court.*fn6 The purpose of the PDDA was: "(1) to provide the parties with a vehicle to identify the 'peripheral Defendants' in each case; (2) to allow plaintiffs to dismiss those peripheral Defendants without prejudice, while (a) tolling any statutes of limitation, and (b) preserving all existing rights to consecutive dismissals under Fed. R. Civ. P. 41(a)(1) or similar state rule; (3) to allow plaintiffs to re-institute their claims against a previously-dismissed peripheral Defendant, if discovery later provides a factual basis therefor; and (4) to allow a peripheral Defendant against whom a claim is re-instituted to re-open discovery only upon good cause shown and with the approval of the Court."*fn7

Under the PDDA, there were two mechanisms that a Plaintiff could use to dismiss a peripheral Defendant: "(1) filing . . . amended complaints dropping previously-named Defendants or Peripheral Defendants in specific cases; and/or (2) filing of case-specific 'Stipulations of Dismissal' providing for the dismissal of Peripheral Defendants."*fn8 As discussed below in Sections VI and VII of this Order, there are now different mechanisms for dismissal of ...


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