Filing Trends and Case Dispositions

Discussion of disposition management and alternative trial struc­tures leads to the conclusion that courts need to gauge their re­sources and schedule numbers of cases for trial in a mode that will bring them to trial within a reasonable time, Data suggest that the number of cases scheduled for trial will have to increase dramati­cally to make inroads on the backlog of cases and even to keep pace with current filings.

Data on asbestos case dispositions, however, have a low level of reliability due to several idiosyncratic features of asbestos litiga­tion. Cases are not officially terminated until the clerk files a form with the Administrative Office of the U.S. Courts denoting the final disposition. In asbestos litigation, this may mean that final settlement papers have been filed as to all defendants who are not in bankruptcy. With an average of twenty defendants, one should expect that recorded dispositions will lag behind the reality of set­tlements. In cases involving multiple claimants, the termination cannot be recorded until all settlements are filed.323 Mass settle­ments, such as the Jenkins class action, cannot fully be recorded until individual settlements are accepted and recorded. Partial set­tlements with individual defendants, such as the Raymark-Blatt & Fales agreement, are not recorded at all in the Administrative Office data, skewing the data further toward understating the number of dispositions.

With this major caveat, what follows is the only available quanti­tative data on asbestos case filing and dispositions in federal courts.

Table 11 shows an overall ratio of filings to dispositions in the years 1985-1986 of 3.7 to 1. For every recorded case disposition, there are 3.7 new cases filed in the ten courts studied. Major filings in Massachusetts and Eastern Texas in 1985 and Northern Ohio in 1986 inflate the results, but even  without those extremes,  the

323. In the District of Maryland, this meant that of eighty-seven settlements filed with the clerks office between November 1984 and May 1985, only forty-seven re­sulted in case terminations. Memorandum from Mark Kozlowski, Asbestos Clerk, to Joseph Haas, Clerk of Court, Nov. 6, 1985 (on file at the Federal Judicial Center).

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TABLE 11

Filing and Dispositions of Asbestos Cases for Ten Federal District Courts by Year, 1981-1986

 

Court

Mass,

N.J.

E.Pa.

W.Pa.

Md.

S.C.

E.La.

E.Tex.

N.Ohio E. Train. Total
1981 Fa

1981 Dh

304 0

78 57

87 53

32 12

24

3

135 77

48

4

143 84

36

4

33

39

920 333

1982 F 1982 D

571 0

73

22

140

55

29 25

50

5

81

131

35

2

236 80

16 6

42 22

1,273 348

1983 F 1983 D

554 4

22 35

142 69

37 36

125 10

22 79

27 1

215 14

14 3

25 12

1,183 263

1984 F 1984 D

628 15

13 48

201 107

33

15

76 11

71

37

70 90

374 56

6 11

26 12

1,498 402

1985 F 1985 D

740 16

39

30

309

165

7

14

153

52

70

27

74 50

823 84

94

72

16 27

2,325 537

1986 Fc 1986 Dc

180 293

2 7

159 133

31 6

144 33

55 9

82 30

305 64

853 1

11

15

1,822 591

Total Fd Total Dd

3,090 330

325

220

1,134

595

197

108

625

116

590

372

362 180

2,480 469

1,063 104

210 164

10,076 2,658

aF represents filings for the calendar year. hD represents dispositions for the calendar year. cFigures for 1986 are for the period from Jan. 1,1986 to June 30,1986.

dThese totals include filings and dispositions prior to 1981 and therefore do not represent the totals of the columns.

number of new filings would far outstrip dispositions. New filings have increased dramatically in 1985 and the first half of 1986, re­flecting a national increase in asbestos filings in all federal courts, as shown in table 12. Since 1984 the rate of recorded dispositions per year has increased, with the largest increase being in 1986 when the rate more than doubled.

More than half of all federal asbestos claims were filed in the two and a half years from January 1, 1984, to June 30, 1986. To keep pace, courts will have to increase the number of cases sched­uled for trial.

Reports from interviews mirror some of the statistical data and also underscore the limitations of the numbers. InEastern Penn­sylvania, for example, the court was on schedule to finish all 1985 filing by the end of 1987. InNorthern Ohio, the court was in the process of creating and testing modified case management plans to deal with a new wave of cases. InSouth Carolina, the court sched­uled a fall 1986 special term of court to clear the asbestos backlog. InEastern Texasthe parties began using the arbitration process to dispose of the cases filed after January 1, 1985. In Eastern Louisi­ana andMaryland, the courts were scheduling cases filed in 1986

TABLE 12

Asbestos Cases Filed in All Federal District Courts by Year, 1974-1986″

Year                                       Number                        Percentage

1974″

1

0

1975″

22

0

1976″

53

0

1977a

149

1

1978

272

1

1980

1,450

7

1981

1,955

9

1982

2,208

11

1983

2,379

11

1984

3,269

16

1985

4,832

23

1986b

_3,660

17

Total cases

20,837

 

“Filings for 1974-1977 include only those cases terminated after July 1,1977. See supra note 45, bPigures for 1986 are for the period from January 1 to June 30.

for trials in 1989 and 1990, respectively. There were indications in most districts of an awareness of the backlog and of a plan to reduce it. Not all of the plans, however, called for movement of a sufficient number of cases to reduce the backlog if filings continue at the current rate.

What is the prognosis for asbestos injury litigation? The lawyers interviewed did not have a uniform picture of future trends. Most, however, were of the opinion that the major wave of massive, in­tensive exposure has passed with the filing of most shipyard worker cases. New cases represent exposure to asbestos during the 1960s, just prior to the widespread adoption of more stringent pre­cautions in the 1970s. While fewer cases could be expected from the less intense exposure of the 1960s and 1970s, many expected the in­juries to be more serious, on the average. Long-range forecasts indi­cate that the numbers of cases in all courts will double, but that the rate of filing will taper off considerably in the next ten years,324

Whether filings will continue to grow in the federal courts de­pends, at least in part, on how plaintiffs’ counsel perceive the ca­pacity of those courts to resolve their claims fairly and relatively expeditiously. One set of factors influencing plaintiffs’ choice be­tween federal and state forums relates to relatively fixed proce-

324. See the discussion supra at notes 11-18.

Chapter IX

dures, such as jury size and voting rules (e.g., accepting nonunanimous verdicts), discovery limits, and rules of evidence. The other major set of factors, one that varies over time and in re­lation to the state courts, is the amount of delay in securing a trial date. In several districts in which federal courts had proved to be slower than state courts, some plaintiffs’ lawyers stated that they had filed or planned to file future cases in state courts. InMassa­chusettsandNew Jersey, the figures in table 11 show a drop in fil­ings. In other districts, the predicted reductions did not occur.

In short, data on dispositions and filings give no grounds for opti­mism about prospects for eliminating the backlog of asbestos cases. Unless current plans are modified to take account of the reality of continued filings, so that the rate of dispositions exceeds new fil­ings, by definition no progress will be made on that backlog. Wait­ing forWellingtonto settle future cases seems impractical, givenWellington’s current policy of waiting for the courts to schedule trials. Polite curtsies are a prelude to waltzing in circles.