BERTRAND v. A-C PRODUCT LIABILITY TRUST

Filing 82

ORDER THAT THOMPSON HINE DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS DENIED IN PART AND DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 11/4/15. 11/5/15 ENTERED AND COPIES MAILED, E-MAILED AND MAILED TO USBC W.D. OF MICHIGAN.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLARD E. BARTEL, et al.,
:
(Administrators for Estate of :
Darryl J. Bertrand, Sr.)
:
:
Plaintiffs,
:
:
:
v.
:
:
:
A-C PRODUCT LIABILITY TRUST, :
ET AL.,
:
:
Defendants.
:

CONSOLIDATED UNDER
MDL 875

E.D. PA CIVIL ACTION NO.
2:11-30147-ER

O R D E R

AND NOW, this 4th day of November, 2015, upon
consideration of the Motion for Summary Judgment (Judicial
Estoppel) of the Thompson Hine Defendants 1 (ECF No. 58), and for
the reasons set forth in the accompanying memorandum, it is
hereby ORDERED that the motion is DENIED in part and DENIED
without prejudice in part, as follows:

(1)

The motion is DENIED as to the arguments related
to judicial estoppel (with respect to all
claims);

1

These Defendants are: (1) American Steamship Company,
(2) Amersand Steamship Company, (3) Bell Steamship Company, and
(4) Reiss Steamship Company. (ECF No. 58-1.)

(2)

With respect to Plaintiff’s pre-petition nonmalignancy claims, the motion is DENIED without
prejudice as to the arguments related to the real
party in interest/standing; and

(3)

With respect to Plaintiff’s post-petition
malignancy claims, the motion is DENIED as to the
arguments related to the real party in
interest/standing.

It is FURTHER ORDERED, in accordance with the
accompanying memorandum, as follows:

(1)

The Clerk of this Court shall (a) make a copy of
this order and the accompanying memorandum to be
filed on the docket of Mr. Bertrand’s bankruptcy
case in the Bankruptcy Court for the Western
District of Michigan (No. 09-bk-90709-JDG); (b)
ascertain the identity of the trustee; and (c)
have served upon the trustee a copy of said order
and memorandum at his/her last known address;

(2)

The trustee will have sixty (60) days from the
date of the filing of the memorandum and order on
the docket of the Bankruptcy Court to provide a
signed letter to this Court (a) confirming that
2

he/she has petitioned the Bankruptcy Court to
reopen Mr. Bertrand’s bankruptcy proceedings and
(b) certifying his/her intention to be added as a
party-plaintiff in the instant case (substituting
only as to the non-malignancy claims, with the
Administrators of Mr. Bertrand’s estate (Willard
E. Bartel and David E. Peebles) continuing as the
named Plaintiffs with respect to the malignancy
claims);
(3)

Once the trustee has petitioned the Bankruptcy
Court to reopen the bankruptcy proceedings, and
until a motion for substitution as partyplaintiff has been filed by the trustee, he/she
is to file a monthly status update with this
Court (by the last day of each month), (a)
informing the Court of the status of the petition
to reopen, and (b) certifying his/her continuing
intention to pursue the non-malignancy claims in
the instant case;

(4)

If the bankruptcy proceedings are reopened, the
trustee will have thirty (30) days from the date
of the Bankruptcy Court’s order reopening those
proceedings to move in the instant case to be
3

added as a party-plaintiff (with respect to the
non-malignancy claims only);
(5)

In the event that the trustee (a) fails to advise
this Court within the sixty (60) day timeframe
that he/she has petitioned the Bankruptcy Court
to reopen Mr. Bertrand’s bankruptcy proceedings
and intends to proceed with the non-malignancy
claims, (b) declines to petition for reopening of
those proceedings, (c) fails to provide a monthly
status update after having petitioned the
Bankruptcy Court, or (d) fails to move to be
added as party-plaintiff in the instant case
(substituting only for the non-malignancy
claims) within thirty days of the Bankruptcy
Court’s reopening of the bankruptcy case: the
Court will give Plaintiffs an additional thirty
(30) days 2 to provide this Court with notice that
they intend to (1) pursue only the malignancy
claims, or (2) petition the Bankruptcy Court for
the Western District of Michigan to reopen the

2

This would be ninety (90) days from the date the
memorandum and order are filed on the Bankruptcy Court’s docket
(for events pursuant to 5(a) or 5(b); or thirty (30) days from
the date of the pertinent failure pursuant to 5(c) or 5(d)).
4

bankruptcy proceedings and move in that court to
compel abandonment of the non-malignancy claims.

AND IT IS SO ORDERED.

s/ Eduardo Robreno
EDUARDO C. ROBRENO,

5

J.