As experience with asbestos litigation has evolved, resolution of common issues has become more routine, at least in theory. Indi­vidual trials in the early years may have contributed to the evolu­tionary discovery of evidence of liability.306 These trials helped achieve a major goal of the tort system, namely, holding public and private entities accountable for behavior that damages or threatens public health and safety.307 As asbestos litigation has reached a mature stage, the time seems ripe for conversion of judicially estab­lished rights into routine claims. This has been successfully man­aged in some courts, but not in others. Traditional case-by-case liti­gation of common issues works in some courts because the parties have been able to settle cases routinely,308 In other courts, the task of building an experience base of litigation upon which to rest routine settlements is far from completion.

Asbestos cases routinely settle when firm credible trial dates are set. As larger numbers of cases are combined for joint trial, whether it be a class action or a consolidated trial, the group of cases settles. As long as trial is a viable alternative and the court shows some capacity to meet that trial date, parties have settled their cases. Because the system has evolved into a settlement system,  the capacity of juries  and judges to  comprehend  the

  1. T. Willging, supra note 4, at 28-29.
  2. See, e.g., In re All Asbestos Cases, Memorandum Opinion (D. Md. Dec. 16,

    1. See generally Brodeur, supra note 21.
    2. Id; Hensler, supra note 1, at 110-12; G. Eads & P. Reuter, Designing Safer
      Products (1983).
    3. Cf. Hensler, supra note 1, at 66-67 (“Some repetitive litigation of substantive
      issues can be intuitively sound …. But these considerations do not require that
      common issues remain open forever.”).

Chapter VII

number of cases is not the primary limit. The main question has become: How many cases can the lawyers evaluate and the defend­ants pay within a structured time period? Those factors may be more malleable than the capacity of juries or judges to process cases.

Finally, trial structures need to be integrated with the court’s as­signment system. If fewer judges are available to manage the case­load, there is more need for a group approach to trials. If greater resources are available, more traditional approaches work. Under traditional approaches, however, a court may invest more time than is necessary in applying a case-by-case management system. Even if little time investment is required—an issue to be discussed in the next chapter—separate treatment of each case tends to delay settlements.