IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
MISC. CASE NO. 1:13-mc-00021-MR-DLH
)
)
IN RE: ASBESTOS-RELATED )
LITIGATION ) ORDER
)
____________________________________ )
THIS MATTER is before the Court sua sponte in order to more
efficiently administer asbestos cases filed in the United States District Court
for the Western District of North Carolina.
IT IS, THEREFORE, ORDERED as follows:
1. The Initial Pre-Trial Order Coordinating Proceedings, No.
WDCP-83-1, entered March 17, 1983, and the Supplemental Order thereto,
entered August 4, 1989, are hereby SUPPLANTED by the present Order
and are no longer in effect.
2. All cases in the United States District Court for the Western
District of North Carolina in which the plaintiff or plaintiffs claim damages
for alleged exposure to asbestos or asbestos-containing products
(“asbestos cases”) shall be subject to this Order.
3. Unless otherwise specified or provided for in this Order, all
discovery and pretrial proceedings in asbestos cases shall be governed by
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and pursuant to the Federal Rules of Civil Procedure, the Local Rules of
this Court, this Order, and the Pretrial Order and Case Management Plan
entered by the Court in each individual case.
4. All asbestos cases shall be referred to the Magistrate Judge for
pretrial proceedings.
5. In accordance with the Order entered February 24, 2005,
entitled In re: Single-Plaintiff Asbestos Cases, Misc. Case No. 1:05-mc-
00011-LHT, each asbestos case filed in the United States District Court for
the Western District of North Carolina will consist of a single plaintiff, with
the exception of (a) complaints filed by a husband and wife for claims
arising out of the same occurrence or transaction and (b) complaints filed
by or prosecuted by the personal representative of a deceased person or
an estate, which may be filed together with the claim of the spouse of the
deceased or the claim of the personal representative of such spouse.
6. A plaintiff filing an asbestos case may, simultaneously with the
filing of the complaint, file a motion ex parte seeking an Order from the
Court compelling the production of any necessary pathology materials from
a medical facility or health care provider. A sample order compelling the
production of pathology materials is attached hereto and is also available
through the Court’s website at http://www.ncwd.uscourts.gov.
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7. Any party who obtains pathology materials during the course of
litigation, pursuant to Court Order or otherwise, shall be required to
preserve such materials and not engage in any destructive testing of the
same without the consent of all parties in the case or Court approval.
8. Crossclaims for contribution by and between defendants shall
be implied. All crossclaims for contribution, whether implied pursuant to
this Order or expressly asserted, shall automatically be deemed denied,
and no Answer to such crossclaims need be filed. If a defendant expressly
asserts a crossclaim for indemnity against one or more defendants based
upon a written or oral contract, however, then the defendant or defendants
who are the subject of such a crossclaim shall file an Answer to the
crossclaim within twenty-one (21) days of being served with the crossclaim.
9. If an Amended Complaint is filed, any Answer filed by a
defendant to the original Complaint shall be deemed adopted as an answer
to the Amended Complaint. No filing of an adoption of the original Answer
is necessary. Any additional allegations in an Amended Complaint are
deemed to be denied unless a defendant files an Answer to the Amended
Complaint stating otherwise. Nothing herein shall be construed to prevent
any defendant from filing an Answer to an Amended Complaint in the event
that such defendant in good faith believes such Answer is essential to
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proper framing of the issues. Such filing, however, will not delay the joinder
of issues, the obligation to conduct the initial attorneys’ conference or the
entry of the Pretrial Order and Case Management Plan.
10. There is no need for a defendant to serve its Answer or other
responsive pleading upon another defendant who has not filed any Answer
or responsive pleading unless the former defendant has expressly included
a crossclaim against the latter defendant, although paragraph 9 above
remains applicable. A defendant will have the obligation to check the
ECF/PACER system to ascertain what other pleadings, orders, and
documents have been filed prior to that defendant filing a responsive
pleading.
11. Where a defendant files a motion to dismiss pursuant to Rule
12 of the Federal Rules of Civil Procedure, the filing of such motion shall
not prevent the joinder of issues. Thus, once all defendants have filed
either an initial answer or other responsive pleading to the Complaint, and
all cross-claims and counterclaims have been responded to, issues will be
deemed joined and the parties will be required to proceed with the initial
attorneys’ conference pursuant to Local Rule 16.1, notwithstanding any
pending Rule 12 motions to dismiss.
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11. All filings with the Court should be double-spaced and in at
least fourteen (14) point font. Where briefs are filed in support of motions,
such briefs shall not exceed twenty-five (25) pages.
IT IS SO ORDERED. Signed: July 12, 2013
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No.: 1:__-cv-_____-MR
Plaintiffs,
vs.
Defendants.
ORDER GOVERNING RELEASE OF PATHOLOGY MATERIALS
THIS MATTER comes before the Court on the <Plaintiff’s/Defendant’s>
motion for an Order compelling the release of pathology materials related to
the claims asserted in this case for injury or death as a result of exposure to
asbestos or asbestos-containing products.
The Court finds that the request is proper and should be granted.
IT IS, THEREFORE, ORDERED that any physician, laboratory, hospital,
clinic or other person or entity who is currently in possession of pathology
materials (whether tissue, pathology slides, or any other form of pathology
material) pertaining to <Plaintiff/Plaintiff’s decedent> shall release such
materials to counsel for the <Plaintiff(s)/Defendant(s)> in this matter.
IT IS SO ORDERED.
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