Foreward

Asbestos litigation is unique. As this study points out, it is the convergence of a number of factors that makes it so: the numbers and concentrations of cases, the widespread use of a highly toxic product during an extended latency period, the suppression of in­formation about its dangers, the clarity of general causation and the lack of clarity of causation-in-fact. Yet, viewed from another perspective, lawyers and judges report that although asbestos cases were once complex, they have become routine. This confirms the principal finding reported in an earlier Center publication, Asbes­tos Case Management Pretrial and Trial Procedures (Federal Judi­cial Center 1985), that “[a]sbestos cases, however complex they may have been at first, have become relatively routine product liability cases that involve a large number of parties.” To say this much, however, does not yet warrant classifying asbestos litigation with simple fender-benders. Large numbers can create enough problems in themselves. It is helpful to remember Kenneth Feinberg’s refer­ence to “the experience of one former asbestos manufacturer [Man-ville Corp.], which saw its defense of a single claim explode into a litigation burden of 17,000 claims.”
The perception of these experienced lawyers and judges can best be understood in the light of how much has been achieved by pru­dent and innovative case management, with use of alternative dis­pute resolution, and the development of expertise by the bench as well as the bar.

This report describes techniques that have worked and some that have not. The problems remain acute, however, because the number of filings has increased dramatically. It is true that the number of dispositions has also increased and the length of time required for trial has decreased, but the fact remains that there is an increasing backlog of asbestos cases in most courts.

The picture with asbestos litigation reminds us of the importance of adequate resources in the effort “to secure the just, speedy, and inexpensive determination of every action.” Multiplying judges to keep pace with the escalating caseloads is not, in itself, the optimal solution. The importance of dedicated judges and the value of inno­vative techniques, recorded in these pages, attest to that. However, we must also remember that there are irreducible minimums and at some point resources become so scarce, whether because vacan­cies are not filled or new judgeships are not created—or both—that it is simply not possible to afford litigants their due.

Finally, I would like to thank those careful readers of our earlier report, especially Chief Judge Charles Clark and Judge Alvin Rubin of the U.S. Court of Appeals for the Fifth Circuit, for encour­aging us to explore more fully the shadowy world of toxic torts. Their interest and concern helped stimulate this current effort. We publish this study in the hope that it will shed light on some of the murky corners of a challenging area of law.
A. Leo Levin