Settlement Complications

The multiplicity of parties and the number of unsettled legal issues led to a further complication in early asbestos litigation— namely, minimal opportunity to settle cases prior to trial. This occurred for several reasons. The “sheer number of interested par­ties—including named defendants, insurers of defendants, and third party defendants—impede[d] the settlement process.”31 Be­cause of concerns about the statutes of limitation and repose and also because of the lack of insurance claims facilities, plaintiffs’ at­torneys generally filed actions without prior presentation of claims to insurers.32 State law rules regarding the effects of settlement among joint tortfeasors also inhibited separate settlements.33

With the passage of time, the actors in the asbestos litigation process have simplified these complicating factors. As is discussed later in this report, courts and litigants have taken steps to standardize pleadings and reduce the impact of paperwork on the courts. Appellate rulings such as Borel have clarified the legal standards to be applied in a given jurisdiction. Counsel have organized them­selves on a national scale and share evidence discovered in earlier cases.34Jury decisions have particularized a range of possible outcomes and allowed the parties to identify salient factors likely to affect the value of a case.

Settlement issues remain complicated, but efforts to reduce these complications have borne fruit and show promise of further progress. Prior verdicts and settlements have cleared a path for future settlements. As defendants learn to apportion liability among themselves in cases related to a specific job site, they establish formulas for future apportionment. Formation of local commit­tees of counsel to coordinate litigation in a given district promotes a structure for discussion of settlement issues among defendants. Formation of a cost-containment group by insurers and other de­fendants presents similar opportunities on a national level. Finally, efforts to develop a national claims facility hold the promise of es­tablishing a firm framework for allocating liability among multiple defendants without litigation. At the time this report was written, a group of thirty asbestos manufacturers and insurers had signed a national agreement to establish such a claims facility and to settle their own disputes regarding insurance coverage.85

In sum, asbestos cases have become routine products liability cases that involve a large number of parties. As the law becomes settled and the facts more organized, the cases become more susceptible to relatively brief trials of consolidated claims. Evaluation of the cases also becomes more routine and settlement more likely. National efforts to coordinate plaintiffs’ and defendants’ counsel and to establish a national claims facility show promise of further accelerating the disposition of asbestos cases.

  1. Locks, supra note 16, at 1189 (footnotes omitted).
  2. Parrish, supra note 2, at 5.
  3. See, e.g., Takiff, Pennsylvania’s Joint Tortfeasor Act: Settlement and Releases,
    Mealey’s Litig. Reps. Asbestos, July 27, 1984, at 937.
  4. See, e.g., Buell, Managing Asbestos Litigation Through Local Defense Counsel
    Committees, For Def., Oct. 1982, at 23; Ranh, How the Plaintiffs’ Bar Shares Its Information, Nat’l L.J., July 23, 1984, at 1, col. 4.
    1. Thirty Companies Have Conditionally Signed Wellington Pact, Mealey’s Litig.
      Reps. Asbestos, July 27, 1984, at 919.
    2. The former figure is based on a provisional estimate from SARD, supra note 5;
      the latter is from R. Pellicoro & D. Hopkins, supra note 5. Pellicoro and Hopkins
      derived their data from a survey of clerk’s offices conducted during the winter of
      1984.

      1. Austinv. Johns-Manvilie, No. 75-754 (D.N.J. filed May 6, 1975).