Statistics and Allocation of Resources

Two estimates of the total number of asbestos cases in the federal system as of April 31, 1984, are 6,655 and 7.170.38 Neither of these figures, however, gives an accurate picture of the number of claims represented in the case filings. In some districts, plaintiffs have filed multiple claims under a single case name. For example, in one case in the United States District Court for the District of New Jersey, 687 individual claimants filed their cases under a single case number.37The Clerks Division of the Administrative Office (AO) attempted to remedy this information gap. According to data collected by the division, the 7,170 cases it identified represent 12,873 individual claimants. The Statistical Analysis and Reports Division of the AO is currently in the process of obtaining information on the number of claims represented by its data.

Asbestos cases are concentrated in a small number of federal district courts. The highest concentrations are in the U.S. district courts for Massachusetts, New Jersey, Eastern Pennsylvania, Southern Mississippi, and Eastern Texas, all of which have more than eight hundred individual claims pending.38 Several other districts, such as Maine, Western Pennsylvania, Maryland, South Carolina, Virginia, Eastern Louisiana, Southern Texas, Northern Ohio, Eastern Tennessee, Southern Indiana, Northern California, and Southern Georgia, have approximately two hundred or more claims pending.39

Allocations of judgeships—but not of clerks and other support personnel—are determined in large part through the use of a measure of the relative difficulty of a court’s caseload, called a “weight­ed caseload.”40 The case weights used to produce a weighted case­load were last determined in a time study conducted by the Federal Judicial Center in 1979, prior to the onset of major asbestos litiga­tion. Under the categories used in the 1979 time study, asbestos cases are commonly classified as “Diversity-Product Liability Per­sonal Injury” cases, to which a weight of 1.5119 has been as­signed.41 The table that follows shows some comparable case weights. These weights are based solely on estimates of the amount of judge time required for these classes of cases and do not refer to the time required of clerks, magistrates, or other court personnel.

No additional credit is allotted for cases with multiple parties, which are typical of asbestos litigation. Courts have to handle extraordinary numbers of motions, discovery issues, trials, and appeals in such cases, but do not receive additional credit for any ad­ditional judicial work created by the multiple plaintiffs and defendants.

Selected Case Weights

Case Type                                                                        Weight

Federal Question-Marine Personal Injury1                                 0.7675

Diversity-Motor Vehicle Personal Injury                        0.8917

Diversity-“Other” Personal Injury                                  1.1152

Diversity-Product liability Personal Injury1                               1.5119

U.S.Defendant “Other” Personal Injury                         2.5839

Airplane Personal Injury                                                 3.0302

Antitrust                                                                          5.3499

SOURCE: S. Flanders, The1979 Federal District CourtTime Study 4-6 (Federal Judicial Center 1980). ‘This category includes some asbestos cases.

Designation of a case as a class action also does not change the case weight.42 But the fact that class actions are treated simi­larly to cases with multiple parties does not dispose of the question, because class actions frequently involve only one defendant with one counsel, whereas multiparty asbestos litigation involves an average of twenty defendants’ lawyers. Class actions also frequently fail to be certified as such under rule 23 of the Federal Rules of Civil Procedure.43 Furthermore, because of the enormous potential liability in class actions, they usually result in a settlement. Whether asbestos cases demand more judicial resources than class actions or other products liability cases demand remains problem­atic and deserves further study.

Clerks report that asbestos cases present special problems because the number of parties creates additional work such as service of process on foreign defendants, filing and copying multiple cross-claims, changing multiple docket sheets after filing of an amended complaint, communicating rulings on motions, sending notices to parties, helping out-of-town counsel to understand and comply with local rules, indexing and cross-indexing cases, filing and docketing separate appeals from rulings on motions, and finding space to file the volumes of paperwork, including discovery materials. Many of these problems have been alleviated by the acquisition of word processors and adoption of local rules limiting the filing of discov­ery material.44Some courts also use master docket files rather than filing a copy of duplicate pleadings in each individual file.45 The use of liaison counsel serves to reduce the clerk’s burden of providing notices and orders to all parties.46

The 1979 time study was designed primarily to allocate judgeships. The system for allocation of clerk positions differs. Using a formula derived from a 1981 work measurement study that identi­fied caseload and the number of judges as the major factors affect­ing demands on the clerks of court, the Clerks Division of the AO presents an annual request to Congress for allocations of positions for the coming year, based on a projection of caseload figures for that year.47 Once the budget allocations are made, the division as­sesses the needs of the courts, based in part on the weights of their caseloads, and allocates the new positions. Under this system, if the statistics do not accurately portray the workload, the Clerks Divi­sion has some discretion to address problems as they arise. In the past, the division has adjusted the allocation of new positions to ac­count for special difficulties in a class of cases. Adjustments in per­sonnel, whether temporary or permanent, are based on present and future caseloads, not on past burdens.

The question remains whether the system of allocation of personnel adequately responds to the needs generated by asbestos litiga­tion. Clearly, the initial onslaught of asbestos litigation generated intense demands on the resources of the clerk’s offices and the judges to whom asbestos cases were assigned. As procedures become established and the cases become more routinized, the future needs for special personnel to deal with asbestos cases are less clear. To the extent that measures such as word processors and modifications of filing practices can be used to control the asbestos paperwork, they are, because of their flexibility, generally prefera­ble to the addition of personnel.

The question whether the collection of statistics by cases rather than by individual claims disadvantages courts with high asbestos caseloads does not admit of a simple answer. There is no doubt that a case with 687 claimants presents extreme demands on both judicial and nonjudicial personnel in a district court. To what extent, however, do these demands differ from those of other aberrant cases, such as school desegregation cases or protracted antitrust cases?48 Allocations based on the time study are necessarily derived from aggregate data tailored to show an average expenditure of time. Looking only at extreme cases distorts the picture. To find comparable data on multiple-party cases one must determine the extent to which other products liability cases involve multiple claimants or defendants. If “enterprise liability” and “market share liability” theories49 become accepted in products liability cases, suits against multiple defendants will become the norm. There is also evidence that other environmental tort cases involve multiple plaintiffs.so Thus, comparisons of asbestos cases with other products liability cases as well as with other multiple-party cases will be necessary to test the proposition that existing case weights are inadequate to measure the special burdens of asbestos litigation. Such studies will likely be useful for analysis of judicial and clerical burdens imposed by other types of mass toxic tort cases.

  1. R. Pellicoro & D. Hopkins, Districts with Large Caseloads (unpublished report,
    Administrative Office of the United States Courts, Clerks Division 1984).

    1. Id.
  2. S. Flanders, The 1979 Federal District CourtTime Study 2 (Federal Judicial
    Center 1980).
  3. Id. at 4-6. This number represents an estimate that approximately four hours
    of judge time is spent on the average products liability case.

In some jurisdictions, asbestos cases are filed as admiralty cases and may be classified as “Federal Question-Marine Personal Injury” and given a weight of 0.7675.

  1. Id. at 56-60.
  2. Id.
  3. For further discussion of a controversy surrounding the decisions of some
    courts to preclude filing of discovery, see Philadelphia Newspapers v, Publicker Industries, 783 F.2d 1059 (3d Cir.  1984), discussed in Lauter, Public, Press Access Backed in Civil Cases, Nat’l L.J., May 28, 1984, at 10.

    1. See, e.g., T. Lambros, E. Green, & P. McGovern, Ohio Asbestos Litigation Case
      Management Plan 15-16 (1983); see also Order, In re Related Asbestos Cases: Richard
      F. Gerry, No. C-83-6251 (N.D. Cal. Oct. 14, 1983).

      1. See discussion at notes 62 to 68 infra.
    2. See generally Administrative Office of the United States Courts, 1984 Annual
      Report of the Director 45.
    3. See G. Bermant et al., Protracted Civil Trials: Views from the Bench and the
      Bar (Federal Judicial Center 1981).

      1. Special Project, supra note 3, at 618-26.
      2. See, e.g., Allen v. United States, 688 F. Supp. 247 (D. Utah 1984) (1,192 named
        plaintiffs in an atomic-testing case); Riley, Lawyers Take Aim at Dioxin: A Silver
        Bullet—Or Merely a Dud?, Nat’l L.J., July 23, 1984, at 1, col. 1 (172 plaintiffs in one
        dioxin trial in Charleston, West Virginia; 75 plaintiffs in a Sturgeon, Missouri, case).