Standardized Sanctions: Rule 11

Faced with a considerable number of situations in which plaintiffs’ counsel failed to uncover sufficient evidence of product identi­fication to justify having named a company as a defendant, the court in the Western District of Pennsylvania devised a method of standardizing the imposition of sanctions for improper certification of the pleadings by plaintiffs’ counsel under rule 11 of the Federal Rules of Civil Procedure.⁷⁵

Upon the granting of a defendant’s motion for summary judgment because of lack of product identification or upon a voluntary dismissal of a defendant by the plaintiff, the court automatically invokes a standard order. This order requires plaintiffs’ counsel to provide an affidavit setting forth the specific legal and factual basis for identification of the defendant’s product as one to which the plaintiffs had been exposed. The affidavit is to be submitted within ten days of a voluntary dismissal of a defendant or the granting of a motion for summary judgment based on insufficient product iden­tification, but it must refer to facts known at the time of the inclu­sion of the defendant in the action and must include “the attor­ney’s own statement of the investigation and research upon which the inclusion of the defendant or third-party defendant was based.”⁷⁶ If the attorney fails to file the affidavit or fails to demon­strate that the joinder complied with rule 11, “the court will impose such sanctions, including, inter alia, attorneys’ fees and costs, as appear to be warranted,”⁷⁷

Such an order sends a clear signal to counsel that the court will not tolerate the proliferation of defendants without regard to evidence that their product may have damaged the plaintiff. The order also tends to mitigate the harshness of imposition of sanc­tions by affording attorneys a clear description of the conditions under which sanctions will be imposed.

1. Rule 11 provides, in pertinent part, that

[t]he signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

1. In re Asbestos Litig., Memorandum Order, Misc. No. 8482 (W.D. Pa. Dec. 13,
   1983). The court permitted a grace period of thirty days from the date of its order
   for plaintiffs to dismiss voluntarily any defendants joined improperly. Id.
2. Id. Under the terms of rule 11, however, an attorney might be able to show
   that joinder of any defendant who manufactured asbestos products is supported by existing law, or a good faith argument for extension of existing law, on market share liability; see, e.g., Hardy v. Johns-Manville Sales Corp, 509 F. Supp. 1353, 1358-59 (E.D. Tex. 1981), rev’d on other grounds, 681 F.2d 384 (5th Cir. 1982), and cases cited in Special Project, supra note 3, at 622 n.279.