Pretrial

Lawyers and judges specified several pretrial changes that pro­moted simplification. A major change that could have national im­plications is that two major plaintiffs’ law firms and Wellington lawyers have agreed to waive their respective clients claims for pu­nitive damages and the state-of-the-art defense for hundreds of cases in the Eastern District of Texas.60 In the same agreement, these parties created a procedure for cases in which the plaintiffs do not have evidence of restrictive impairments of breathing, as shown by pulmonary function tests. This procedure will permit the parties or an arbitrator to place cases on the court’s administrative docket, with a stay of all proceedings, for up to two years.61 The District of Massachusetts had previously created a similar proce­dure.62

Several plaintiffs’ attorneys indicated that they now screen cases more carefully than they did before. One candidly admitted that he had accepted too many cases in the early years, not predicting the abundance of cases that developed and the demands of those cases on the law firms and the courts. Some counsel for plaintiffs now think that premature filing of marginal cases affects the ability to obtain trials for more serious cases. One claimed that his office now used pulmonary function tests to distinguish obstructive lung defects, which might be attributable to smoking, from restrictive lung defects, which are more likely caused by asbestos.83 Focusing on the medical evidence, two lawyers in the office review a typical case before filing and an out-of-town specialist law firm also has to sign off before the case is filed. In the District of Massachusetts, and in other jurisdictions, this process is standardized by a require-

  1. Jenkins v. Raymark Indus., Inc., No. M-84-193-CA, Order & Alternative Dis­
    pute Resolution Agreement at 7 (E.D. Tex. Sept. 19, 1986). The agreement applies to
    claims Bled between January 1, 1985, and April 1, 1986, after the cutoff date for
    phase one of the class action.

    1. Id. at 4, 5-6.
    2. See the discussion infra at notes 119 to 125.
  2. Such a practice would be likely to have a major effect. For example, in the
    Eastern District of Texas, 171 of the plaintiffs in the first phase of the Jenkins class
    action had pulmonary function test results that showed either normal functions or
    obstructive defects only; 197 showed mixed results or restrictive defects only; and
    326 did not have any useful test results. Jenkins v. Raymark Indus., Inc., No. M-84-
    193-CA (ED. Tex. 1986) (slides prepared by special master are on file with the Fed­
    eralJudicialCenter).


Chapter III

ment that plaintiffs file specific medical information with their complaint.64

Another aspect of pretrial simplification is the accumulation of discovery materials. One possible issue regarding each defendant is whether or not plaintiff was exposed to a product manufactured by that defendant. In the early stages of asbestos litigation, that infor­mation was difficult to obtain. Discovery of the available evidence, however, has accumulated for each jobsite so that it is frequently possible to identify invoices and co-worker testimony that will con­firm or refute plaintiffs claims without extensive new discovery. At least one plaintiff firm has computerized records of such infor­mation.

In the Eastern District of Louisiana plaintiff and defense lawyers jointly established a document depository, accessible to all lawyers, that includes documents from all cases, such as medical records, depositions (including depositions and documents from other juris­dictions), medical articles about asbestos dating back to the nine­teenth century, and documents relating to each defendant.65

On the other hand, in a few jurisdictions, the pretrial process re­mains unorganized, resulting in unfettered contentiousness. Discov­ery battles highlight the need for a settled process to exchange in­formation, but counsel continue to squabble and resist, perhaps representing the dominant legal culture of their locale. Some courts further distance themselves from resolution of the cases by delegating pretrial functions, including monitoring of discovery dis­putes, to magistrates, who have little power to control the general strife or bring cases to trial.66 The absence of firm trial dates and realistic discovery cutoffs in those jurisdictions seems to add fuel to such strife.