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In Re Asbestos Litigation. James Flanagan David H. Middleton Edee Cochran Esteban Yanez Ortiz John R. Allgood Henry William Evers Lester Eugene Taylor Safety National Casualty Corporation v. Gerald Ahearn James McAdams Dennis Charles W. Jeep James Drake Juanita Drake James Ellison Roland Dearborn Judith Dearborn Kerwin Butcher, Dir., Workers Comp., Director, Office of Workers' Compensation Programs, U.S. Dept. Of Labor Paul Cochran Ida Beck Marion Behee Longshore Intervenor William James Mitchell Fibreboard Corporation Bethlehem Steel Corporation Continental Casualty Company Pacific Indemnity Francis McGovern Owens-Illinois Inc. Penn Mutual Life Insurance Company Columbia Casualty Company Cna Casualty Company of California Celotex Corp. Daniel Herman Rudd, Jr., on Behalf of Themselves and Others Similarly Situated Beverly White, on Behalf of Themselves and Others Similarly Situated John Hansel, on Behalf of Themselves and Others Similarly Situated

Citation: 101 F.3d 368Docket: 95-40635

Court: Court of Appeals for the Fifth Circuit; December 2, 1996; Federal Appellate Court

Narrative Opinion Summary

The case *In re Asbestos Litigation* involved appellants, including James Flanagan and Safety National Casualty Corporation, challenging decisions before the United States Court of Appeals for the Fifth Circuit. The litigation was rooted in a complex asbestos-related matter with numerous appellees, such as Gerald Ahearn and Fibreboard Corporation, showcasing the intricate nature of mass-tort class actions. Originating from the United States District Court for the Eastern District of Texas under Judge Robert M. Parker, the appeal was heard on November 26, 1996, with a subsequent denial of rehearing on December 3, 1996. Despite the appellants' request for an en banc rehearing, the court declined, citing insufficient majority support among active judges as dictated by FRAP 35 and Local Rule 35. Dissenting, Circuit Judge Jerry E. Smith and others contended that the case presented unprecedented no-opt-out, mass-tort class action issues deserving further scrutiny. The procedural complexity was exacerbated by the disqualification or non-participation of six judges, ultimately preventing the supermajority needed for an en banc review. The appellants are directed to seek potential relief through the Supreme Court via a writ of certiorari.

Legal Issues Addressed

No-Opt-Out, Mass-Tort Class Action

Application: The dissent argued that the case involved unprecedented issues related to a mass-tort class action that warranted further review.

Reasoning: Circuit Judge Jerry E. Smith, joined by several colleagues, dissented, arguing that the case involves unprecedented issues related to a no-opt-out, mass-tort class action, meriting further review beyond the circuit panel level.

Rehearing En Banc under Federal Rules of Appellate Procedure 35

Application: The court declined to grant a rehearing en banc due to the lack of majority support among active judges.

Reasoning: The court declined to grant suggestions for rehearing en banc due to insufficient support from the majority of active judges, as outlined in FRAP 35 and Local Rule 35.

Supermajority Requirement for En Banc Reconsideration

Application: The court noted that a supermajority of nine out of the eleven participating judges is required for reconsideration, which was not obtained.

Reasoning: The court noted that a supermajority of nine out of the eleven participating judges is required for reconsideration, a threshold that was not met.