Overview

Interviewees were unanimous on two points: Asbestos cases were once complex and they have become less complex with experience. In only one jurisdiction did respondents indicate that asbestos cases were presently more complex than other products liability cases filed in federal court.48 In three jurisdictions, the overall impres­sion was that asbestos cases are equal in complexity to other fed­eral products liability cases; in five jurisdictions,49 asbestos cases were seen as less complex than other federal products liability cases,80

  1. That district, Massachusetts, had the highest number of filings and the lowest
    ratio of dispositions to filings. These factors suggest that the district may have
    unique complicating factors and has only recently evidenced serious efforts toward
    simplification. See also Hensler, supra note 1, at 99-100.

    1. In one jurisdiction I did not elicit responses on this precise issue.
  2. I did not intend to carry out a quantitative study of this issue due to con­
    straints of time and inherent limitations based on the subject matter and the diffi­
    culty of quantifying exactly the comparisons of different cases. I did, however, for-

Chapter III

In general, the process of simplification of asbestos cases has evolved primarily through pretrial rulings, trials, appeals, and set­tlements of eases. The creation of the Wellington Asbestos Claims Facility5 • has simplified some aspects of settlement in most juris­dictions, but in some areas, the rearrangements involved in imple­menting the Wellington agreement relating to common defense have disrupted settled patterns.

A judge who had presided over four asbestos trials and several clusters of consolidated cases vividly portrayed the process of sim­plification by displaying his file folders for the cases: The first case included several full accordion files and the last, a single manila folder. The first case took a week and a half of trial time before settling. The second case was a consolidation of cases involving two workers and their spouses. Trial took three weeks. The third was an individual trial, lasting nine days. The fourth trial consolidated the cases of six plaintiffs and their spouses and took three weeks of trial time. During the two years between that trial and the inter­view for this report, all cases had settled, most without significant judicial action.

Another judge capsulized the tenor of the vast majority of re­sponses on the question of complexity in this way: “Asbestos cases are not complex, but compound.” Typical remarks from lawyers were that “cases are very simple” and that “the law is settled.” A typical judicial reaction was that asbestos cases become “simple to try” after the first trial. This is not to say that no complications remained, especially in the district with the highest volume of cases, Massachusetts. In another district in which there had been no trials, the lawyers stated that the medical issues were complex.

mulate a questionnaire that was used primarily to focus discussion on these issues. A relatively small percentage of the lawyer-interviewees (fifteen of sixty-one, or 26 percent) completed the questionnaires, and I present these returns in this note in impressionistic rather than quantitative form, because I am not convinced that they are representative. They do not, however, differ substantially from the responses conveyed in the interviews.

In the questionnaire, I called the attention of respondents to a recently closed as­bestos case and asked for a comparison with a typical case in the office or chambers and for a comparison with another closed case of their choice among either an early asbestos case, another toxic tort case, another federal products liability case, or an­other federal personal injury case. Respondents indicated that a recently closed as­bestos case was slightly more difficult, in terms of disposition, than a typical case in the law firm. They also indicated that the closed asbestos case was more difficult than another toxic tort case (n = 4), about equal to a typical toxic tort case (n = 1) and a federal personal injury claim (n = 5), and slightly less difficult than an ear­lier asbestos case in = 4). Only one respondent chose to compare the recently closed asbestos case with another federal products liability case; he reported that the latter was much more difficult than the asbestos case.

51. See supra note 5 for a description of the Wellington plan.

In other districts, the remaining complicating factors related to set­tlements.

Findings regarding complicating and simplifying factors in asbes­tos litigation are summarized in table 2 and discussed in the sec­tions following that table. Additional discussion of the simplifica­tion of asbestos litigation will be found in later chapters, especially those dealing with standard pretrial procedures, settlement, and alternative trial structures.