In re: Asbestos Prods. Liability Litig. (Schroeder) — civil — reversal — Smith

The Third Circuit today held that asbestos-litigation defendants waived their personal-jurisdiction defense and that the district court’s ruling to the contrary was an abuse of discretion. The defendants asserted personal jurisdiction as a defense at the outset, but they implicitly waived the defense by, among other things, asking the court for certain rulings before deciding whether to waive jurisdiction and objecting to transfer to a court with jurisdiction. In so holding, the court expressly split with the Sixth Circuit. Only in asbestos litigation is it not surprising when the opinion ends, ” Barring any additional preliminary matters, these 30-year-old cases should at last proceed to adjudication on the merit.”

Joining Smith was McKee; Fisher dissented, vibrantly. Between the dissent and the circuit split, I suspect there’s a bit of battling ahead before any proceeding to adjudication actually transpires. Arguing counsel were Louis Bograd of Motley Rice for the plaintiffs and Harold Henderson of Thompson Hine for the defendants.