Specialization

Two of the courts studied used specialists to manage asbestos liti­gation from assignment to final disposition, both with a great deal of success. Judges Parker (Eastern District of Texas) and Lambros (Northern District of Ohio) have developed national reputations as innovators, at least in part due to their intensive involvement as “specialists.”78 Each of these judges volunteered to manage a con­solidated docket of asbestos cases at a time when less centralized systems did not show prospects of being able to move the asbestos caseload toward disposition.

At the other end of the spectrum, the Eastern District of Tennes­see uses its traditional individual calendar system to assign cases. This court has a moderate asbestos caseload, about equal to the pre-1986 caseload of Northern Ohio but far less than that of East­ern Texas orMassachusetts(see table 1). None of the judges spe­cializes in asbestos litigation, yet the disposition rate in this district outstrips that of many courts with equivalent numbers of asbestos cases.

In several other districts, a more collegial system, that is, a system involving shared responsibility for the asbestos litigation, reigns. In Eastern Louisiana, Judge George Arceneaux managed the pretrial stage of the asbestos docket based on specialized knowl­edge he acquired in the trial of silicosis cases. Trials were to have been assigned back to all of the judges on an individual calendar basis. When it became apparent to Judge Arceneaux that his pre-trial rulings would have a substantial impact on the trial of all cases, he called for formation of a committee, on which he contin­ues to serve. The committee assigns the cases for trial (“spreads the joy,” as one judge put it) after recent filings have been organized by the magistrate and counsel into groups of cases with similar legal theories, worksites, and counsel.79 The committee also issues

  1. If the system is designed to deal with complexity as opposed to numbers, I
    question whether the assumption of complexity fits the facts of current asbestos liti­
    gation, as found in this report.
  2. See, e.g., Arthur, Texas Judge Rides Herd on Asbestos Suits, Legal Times, May
    19, 1986, at 1; McGovern, supra note 37, at 478-91 (1986). See also Hensler, supra
    note 1, at 60-65, 105-06. See generally T. Willging, supra note 4.
  3. A general order requires counsel, upon filing of a case, to complete a form
    that will aid in identification of the proper category for consolidation. All Asbestos-
    Related Cases, General Order (E.D. La. Nov. 7, 1984).

 

Chapter IV

case management orders and can serve as a vehicle for standard rulings on pretrial issues.

In Eastern Pennsylvania, Judge Charles R. Weiner has served as asbestos coordinator for several years, starting shortly after the Manville bankruptcy in August 1982.80 Prior to that time, all cases had been handled on the individual assignment system without se­rious problems. A stay, lasting about twelve to eighteen months, was issued by the court of appeals pending a decision that the cases could proceed without Manville.81 The stay created a backlog of cases. Judge Weiner responded to a request from the chief judge that he coordinate the flow of asbestos cases.

Working with the lawyers from both sides, Judge Weiner created a trial list of about four to five cases a week. Cases have been as­signed for trial to all the judges on the court in order of seniority, starting with the most senior judges.82 For each trial assignment, both a primary trial judge and a backup judge are assigned, to make the trial date as certain as possible. The judges apparently perceive the system as a fair distribution of a courtwide burden. While pretrial matters are handled by the judge initially assigned to the case, issues of importance to a group of cases may be han­dled by consolidation of an issue, circulation of draft opinions, and even resolution by a three-judge panel of the district.83 Under this system, as of July 1986 the court had scheduled all of its 1984 cases and some 1985 cases for trial before the end of 1986.

In Western Pennsylvania, shortly after his appointment to the bench, Judge Gustave Diamond agreed to the chief judge’s request that he take responsibility for all of the asbestos cases then on the docket of the court. He educated himself about the cases by dealing with pretrial motions and presiding over a trial in a case that lasted four to five weeks (and settled on the eve of final argument). In the course of managing a full docket of asbestos cases together with other civil and criminal cases, Judge Diamond identified a number of pretrial problems that could be solved by standard rul­ings on issues such as sanctions, cross-claims, joint motions, and summary judgment issues.84 Once the pretrial process became es-

  1. For a description of the system used in the Eastern District of Pennsylvania,
    see Weiner, Concentrating ore Cooperation, Litigation, Winter 1986, at 5.

    1. The decision is not published.
    2. Pretrial matters are handled by the judge to whom the case was first as­
      signed.
    3. In New Jersey, the district decided an issue relating to the state-of-the-art de­
      fense for all asbestos cases by creating an en bane procedure to generate a district-
      wide ruling. In re Asbestos Litig., 628 F. Supp. 774 (D.N.J. 1986).
    4. For further discussion of these orders, see T. Willging, supra note 4, at nn.71-
      73, 76-77, 80-81.

tablished, he asked that the remaining cases be redistributed among the court, and this was done. His pretrial rulings stand as a model for use by other judges, but they have not been adopted as standing orders or local rules for the entire court.

In the District of Maryland, the court groups cases for trial by all (nonrecused) judges. The system was created primarily through the efforts of then-Chief Judge Frank A. Kaufman (presently a senior judge) and Judge James ft. Miller, Jr. (who has resigned), building on trials presided over by the current chief judge, Alexan­der Harvey II.85 Judges Kaufman and Miller reviewed the litera­ture on asbestos litigation, drafted case management orders, includ­ing consolidation under Federal Rule of Civil Procedure 42, and held hearings on the proposed orders. The final orders were adopted by a vote of the judges. Groups of cases, clustered by work­site and plaintiffs’ attorney, were scheduled for trial each month before a different judge. For each worksite (which includes multiple trial groups), a single judge was assigned to monitor the pretrial process and to rule on general motions and discovery disputes. Rul­ings on pretrial issues are usually adopted by most of the judges who hear asbestos cases, but there is no formal procedure for adop­tion of rulings beyond the initial case management orders.

In the District of New Jersey, Judge Harold Ackerman was as­signed to handle the Raybestos and Manville plantworker cases shortly after taking his oath of office. He engineered a comprehen­sive settlement of the Raybestos cases and participated jointly with Judge John E. Keefe of the New Jersey Superior Court to stimulate settlement of the Manville cases. The docket of that court is cur­rently divided among the judges, with Chief Judge Clarkson Fisher handling dispositive motions. A stay is currently in effect pending a decision by the U.S. Court of Appeals for the Third Circuit. In theCamdendivision, Judge Stanley Brotman was assigned all of the cases on an individual basis and he disposed of them by presid­ing at a trial and participating actively in settlement discussions for all subsequent cases.

InSouth Carolina, Judge C. Weston Houck was assigned all the district’s asbestos cases shortly after his appointment. He has grouped the cases together and called special terms of court to dis­pose of them. All but one of the dispositions since 1982 have been by settlement; the docket was current as of 1984. Between 1984 and

85. This approach was taken after it became apparent that individual trials under the individual assignment system would not be adequate to deal with the caseload. These trials did, however, apparently establish the values that have been used to settle later cases,

 

Chapter IV

1986, a new backlog developed and a new term of court was held during the fall of 1986.

InMassachusetts, the court has had the highest asbestos case­load in the federal system. Judge Rya Zobel was designated as the pretrial specialist in 1984, She has developed an assignment system that calls for preparation of trial lists of forty to fifty cases each, organized according to plaintiffs’ counsel. Every other month, one of the ten judges, on a rotating basis, undertakes responsibility for any trials. Judge Zobel continues to handle pretrial matters, and she provides each trial judge with a listing of prior evidentiary rul­ings. Before her involvement, a magistrate was assigned to the pre-trial preparation of asbestos cases, but none had been scheduled for trial until Judge Zobel undertook responsibility for the docket.