Disposition Management

Randresearchers found that “[vjariation in the pace of disposi­tion across courts is … more a matter of judicial behavior than of lawyer or litigant effort.*’112 As illustrated in the previous subsec­tion, a primary management task is to integrate the paperwork management system with the disposition management system. In disposition management, the emphasis is on firm, credible trial dates and scheduling of sufficient numbers of cases to reduce the queue of cases.113

The court’s influence is at its maximum in disposition manage­ment: Action or inaction by the court itself has a dramatic impact on the value of a case. Failure to set a trial date generally results in a sizeable lowering of the value of a case and, conversely, sched­uling of a trial date usually increases the plaintiffs bargaining power.114 By providing rigid deadlines, the court imposes an end to the constant reevaluations that might otherwise impede settlement of cases. * *s Once the court cuts off all discovery and precludes trial

  1. Hensler, supra note 1, at 83.
  2. Discussion of grouping of cases for trial will be considered infra at notes 299
    to 305.

    1. D. Waterman & M. Peterson, supra note 108, at 8.
    2. Courts create the context within which parties resolve actionable disputes. In
      Professor Galanter’s terms, the courts confer “a bargaining endowment” on the par­
      ties that includes “not only the substantive entitlements conferred by legal rules,”
      but also the “rules that enable those entitlements to be vindicated.” Galanter, The
      Radiating Effects of Courts, in K. O. Boyum & L. Mather, Empirical Theories About
      Courts 117, 121 (1983). In addition to rules, the “delay, cost, and uncertainty of elic­
      iting a favorable determination also confer bargaining counters on the disputants.”
      Id. at 121-22. See also J. White & H. Edwards, The Lawyer as Negotiator 173 (1976)
      (“the fact that there will be a public trial if settlement is not reached is the single
      critical fact from which a variety of consequences about lawsuit negotiation flow”).

use of new information, the ingredients for evaluation and trial become relatively constant.

Some courts link paperwork management and disposition man­agement by setting a firm trial date at the initial scheduling con­ference or its equivalent. Starting from the earliest possible date given the available resources, the court will then count backwards from the trial date to impose time limits on other pretrial proc­esses such as the filing of motions and cutoffs for various forms of discovery. The Ohio Asbestos Litigation (OAL) and the District of Maryland’s standing order are prototypes of this approach.116

Another approach to disposition management is to set priorities among cases and prepare only those cases that appear to be ripe for trial. Courts tend to presume that all cases filed are equally ready for trial and that they should be scheduled on a first-come, first-served basis. This assumes that there are not external forces, such as the statute of limitations, driving the filing of litigation. In asbestos litigation, cases may be filed because of what one lawyer calls the “asbestos frenzy,” a quite understandable phenomenon driven by the discovery doctrine used in many statutes of limita­tions cases117 and by the public apprehension of the dangers of ex­posure to asbestos. Lawyers file cases as soon as possible to protect their clients (and themselves) from serious statute of limitations problems. Some of these cases, however, may be based on limited physical impairments at the time of filing.118 Indeed, the long la-

116.  See, e.g., T. Lambros, E. Green & F, McGovern, Ohio Asbestos Litigation Case
Management Plan and Case Evaluation and Apportionment Process 30-31 (1983); In
re Baltimore Asbestos Litig., All Cases, Memorandum and Order (D. Md. Dec. 16,
1983).

Under the OAL, there is a major wrinkle: Settlement conferences are the key events and discovery is carefully structured (and limited) so that information neces­sary for case evaluation, such as a medical report or an employment history, is pre­sented early. On the other hand, information that lawyers consider necessary for trial, such as a deposition of a co-worker about exposure to specific asbestos prod­ucts, is deferred until after the main settlement conference. In lieu of a full deposi­tion, the court permits Simplified Pretrial Informational Transactions (SPRINT) interviews and has suspended Fed. R. Civ. P. 26 deposition procedures until a show­ing of necessity for trial is made. In re Ohio Asbestos Litig., OAL Order No. 32 (N.D. Ohio Feb 6, 1985) (order creating SPRINT interviews and specifying procedures); see abo In re Ohio Asbestos Litig., OAL Order No. 40 (N.D. Ohio Sept. 18, 1985) (mo­tions for leave to depose medical experts before trial denied subject to showing of necessity after direct testimony); discussion infra at notes 140 to 164.

  1. Special Project, supra note 8, at 641-58.
  2. In the Eastern District of Texas, Special Master Francis McGovern collected
    data from plaintiffs’ files indicating that 75 percent (510 of the 684) plaintiffs for
    whom data was available were not disabled at the time of trial. Seventy percent
    (479) of those plaintiffs, however, were not working. Eighty-four percent of the
    nonworking plaintiffs reported that they had retired. Jenkins v. Raymark Indus.
    Inc., M-84-193-CA (E.D. Tex. 1986).

Chapter V

tency period suggests that damages may not be fully known or knowable for decades.119

Judge Rya Zobel in the District of Massachusetts created an in­novative procedure, called the “inactive asbestos docket,” to ad­dress the problem of weak asbestos cases that clog the queue and delay trials for more serious cases.120 Judge Zobel ordered all plaintiffs’ attorneys to review their files; for cases without serious disease, a procedure was created by stipulation of the parties for voluntary dismissal of those cases, subject to refiling. Defendant agreed to waive any statute of limitations defense that had not al­ready been raised.121

Having an inactive procedure seems to be in the interests of all parties and the courts. Indeed, in Eastern Tennessee, the plaintiffs seized a unique opportunity to create a similar procedure without prompting by the court.122 The result was that plaintiffs’ attorneys had the ability and incentive to file in federal court only those cases that approximate a state of trial readiness. Absent a special procedure, the statute of limitations virtually compels filing a case at the first sign of asbestos disease.

An additional benefit of the inactive docket is that it may assist the lawyer in setting priorities among cases. Plaintiffs’ attorneys report that it is difficult to settle a case without some payment to

  1. See the discussion supra at notes 7 to 18.
  2. In re Massachusetts Asbestos Litig., M.M.L. Nos. 1-5, Stipulation Regarding
    Voluntary Dismissal of Cases Upon Certain Conditions (D. Mass. Nov. 13, 1985). For
    a further description of the system, see Lempert, Inactive Docket Reduces Dilemma
    In Asbestos Cases, Inside Litigation, 1, March 1987, at 1.

The stipulation of the parties, which was approved by the court, allows for volun­tary dismissal of the cases under Fed. R. Civ. P. 41(aX2) at the behest of plaintiffs attorney. Plaintiff may refile the complaint once as a matter of course by filing a “Notice of Refiling of Complaint,” using the original docket number. No fee is charged for the refiling.

  1. As of the time of this writing (early 1987), an estimated 400 to 450 cases had
    been assigned to the inactive asbestos docket despite the fact that one law firm re­
    sisted assigning any cases. Evaluations of cases are continuing and additions to the
    docket are anticipated. Estimates of the percentage of qualified cases ranged from
    about 25 percent to 60 percent, or approximately 850 to 2,040 cases.
  2. Trial dates were scheduled promptly in federal court, generally in less than
    six months. Plaintiffs recognized that there were asbestos cases that needed to be
    filed because of statute of limitation problems that would not benefit from a speedy
    scheduling of a trial date. To deal with the situation, plaintiffs’ attorneys filed all
    their asbestos cases in state courts, using the state system like a “holding tank,” as
    one lawyer portrayed it. The state courts made no effort to schedule the cases for
    trial, perhaps aware of the true purpose of the filings. A federal trial could be ob­
    tained by voluntary dismissal of the state case and refiling in federal court. A
    saving statute permitted the refiling within one year without concern about the
    statute of limitations.

A by-product of this procedure is an inflation of national statistics regarding as­bestos litigation. Under this system, each case is counted twice: once in the state system and once in the federal.

the client. The inactive docket provides a rationale that is more palatable to a client because review is imposed by the court. An anomaly of the inactive docket, however, is that it may inflate the statistical reporting of cases. Under Administrative Office statisti­cal reporting procedures, the voluntarily dismissal is counted as a termination of a case and the refiling constitutes a new case even though it is given the original docket number.123 Current statisti­cal counting procedures do not have a category that meshes well with the inactive docket procedure.124

For cases that have not yet been filed, Wellingtondefendants have created a similar procedure, dubbed a “green card,” which preserves claims (either before or after filing) by tolling the statute of limitations. Some plaintiffs’ attorneys, however, have taken the position that current claims should be compensated based on the current impairment (e.g., pleural thickening), including damages for fear of development of future injuries (e.g., cancer) and for dam­ages associated with those future injuries.’2 5 These attorneys have refused to cooperate with any system that fails to provide compen­sation for existing impairments. In some jurisdictions,Wellington defendants have responded to such demands (in cases scheduled for trial) by making payments and issuing a green card, entitling plaintiff to file another claim if serious injuries develop.

Occasionally, courts will advance a single case because of an ex­treme emergency. The general rule, however, is that cases should be brought to trial based on their place in the queue, which is de­termined by the date of filing. Even in courts that group clusters of

  1. Administrative Office of the U.S.Courts, 11 Guide to Judiciary Policies and
    Procedures, Statistical Analysis Manual, tit. II, § III.E, p.40, provides that “reopened
    or remanded actions are counted, for statistical purposes, as separate actions.”
  2. Because many of the inactive cases are not expected to be refiled, the alter­
    native of keeping the cases on the docket indefinitely would not account for the re­
    ality of the situation. At present, the best option appears to be to wait until the
    action is at least three years old, has had no action for twelve months, and has com­
    pleted all presently contemplated proceedings. This satisfies the Judicial Conference
    policy for terminating inactive cases. Administrative Office of the U.S. Courts, 11
    Guide to Judiciary Policies and Procedures, Statistical Analysis Manual, tit. II, §
    III.H, p.44.
  3. Courts are divided on this issue. See, e.g., Jackson v. Johns-Manville Sales
    Corp., 781 F.2d 394 (5th Cir. 1986) (en bane) (Mississippi law allows recovery for in­
    creased risk of cancer), cert, denied, 106 S, Ct, 3339 (1986); Gideon v. Johns-Manville
    Sales Corp, 761 F.2d 1129 (5th Cir. 1985) (Texas law allows recovery for fear of
    cancer developing from an existing injury, asbestosis); Adams v. Johns-Manville
    Sales Corp., 783 F.2d 589 (5th Cir. 1986) (no cause of action for fear of cancer under
    Louisiana law in absence of proof of asbestos-related injury or proof of medical prob­
    ability that such injury would result from plaintiffs exposure to asbestos). See gener­
    ally
    Rosenberg, supra note 1 (advocating a proportionality rule to compensate plain­
    tiffs for the increased risk of cancer caused by exposure to toxic substances); Note,
    Increased Risk of Cancer as an Actionable Injury, 18 Ga. L. Rev. 563 (1984).

Chapter V

cases, the clusters are formed soon after filing and include cases of the same vintage.

In summary, two points deserve emphasis. First, this study con­firms the finding of the Asbestos Case Management Conference that the single most important aspect of judicial management of asbestos litigation is the setting of a firm, credible trial date. This study also reveals the need for a system to set priorities for the trial of cases. Under the current system, substantial numbers of cases are called for trial before injuries are fully manifest, while other plaintiffs die of asbestos-related disease before their cases are called for trial. The inactive docket shows promise as a vehicle for excluding the least serious cases from the trial queue. Priorities de­rived from plaintiff need, however, have not been created.