Overview

In the ten districts studied, the variation in pretrial and trial structures ranged from fully individual treatment of each case to a districtwide class action, with multiple variations in between. Table 10 charts those variations according to the degree of consolidation used and the type of trial calendar.

TABLE 10

Overview of Pretrial and Trial Structures for Ten Study Courts

 

  Consolidation Typeof
Court

Pretrial

Trial Trial Calendar
Mass.

Yes

No Master
N.J.

Yes

No Individual
E.Pa.

Yes

No Master
W.Pa.

No

No Individual
Md.

Yes

Yes Master
S.C.

Yes

Yes Singlejudge
E.La.

Yes

No Master
E.Tex.

Yea

Yes Singlejudge
N.Ohio

Yes

Yea Singlejudge
E. Term.

No

No Individual

Four of the courts in this study organized the trial of asbestos cases around the individual case. In the most individual system, in Eastern Tennessee, cases were assigned to judges and set for trial on individual judges’ calendars. In Western Pennsylvania, all trials have been scheduled on an individual basis, even when the cases were assigned to a single judge. In Eastern Pennsylvania, cases are put on a master asbestos trial list, with trials scheduled on an indi­vidual basis. At least one judge in that district, however, has pre­sided over a consolidated trial of fifteen cases.219 In Massachusetts, large blocks of cases (fifty or more) are scheduled for settlement conferences, but the trial list of cases that do not settle is on an individual basis.

In some of the districts, the structure of pretrial consolidations and dispersion of nonsettled cases for trials operates like a micro-

219. Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357, 383 (E.D. Pa. 1982), aff’d sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir.

1985).

cosm of the national multidistrict litigation procedure.220 In the Eastern District of Louisiana, cases are consolidated for pretrial purposes, but trials will be on an individual, sequential basis. InNew Jersey, two major cases have involved large numbers of plantworkers, handled on a group basis. Other individual claims are managed on an individual basis, with some overarching legal issues carved out for consolidated treatment by the court. InCamden, cases were grouped and subgrouped together for settle­ment purposes; trial, however, was on an individual basis.

In the Districts of Maryland, Northern Ohio, andSouth Carolina, cases have been consolidated for pretrial and trial purposes. In none of these districts, however, has there been a trial to verdict of a full group of cases.

In the Eastern District of Texas, Judge Parker has experimented with various trial groupings to deal with the massive caseload in that district. In what Judge Parker later declared to be a failure, the court set up a “trial in the round” in which multiple juries heard the common evidence and then individual damage claims.221 Inconsistent liability verdicts arising out of separate jury delibera­tions were not reconcilable with notions of fairness and justice. A modification of this procedure involved a trial of four bellwether cases from a cluster of thirty, with verdicts in the four cases bind­ing the remaining twenty-six on the common issues.222 Finally, Judge Parker certified an opt-out class action for approximately 755 cases (which settled after presentation of the plaintiffs’ case at trial) and a mandatory class for approximately 1,000 remaining cases.

  1. 28 U.S.C. § 1407 (1986).
  2. For a summary discussion of this experiment, see Green, supra note 102, at
    221-23; Arthurs, Texas Judge Rides Herd on Asbestos Suits, Legal Times, May 19,
    1986, at 1, 4-7.
  3. Newman v, Johns-Manville, Civil Action No. M-79-124-CA (E.D, Tex.), man­
    damus denied sub nom. In re
    Armstrong World Indus., Inc., No. 84-2690 (5th Cir.
    Nov. 26, 1984). See also id., Petition for Writ of Mandamus at 4-5 (5th Cir. Nov. 26,
    1984). A panel of the Fifth Circuit denied the petition for writ of mandamus and
    motion for stay of the proceeding in a per curiam summary order filed on November
    27, 1984. After a verdict for the four bellwether plaintiffs, all of the cases settled. A
    copy of the special verdict forms used in Newman is on file at the Federal Judicial
    Center. For further descriptions of these trials, see M. Selvin & L. Picus, The Debate
    Over Jury Performance: Observations from a Recent Asbestos Case (Rand Corp.
    1987); Arthur, Texas Judge Rides Herd on Asbestos Suits, Legal Times, May 19,
    1986, at 1; Hensler, supra note 1, at 42, 65.