Asbestos Law Information

Summary and Conclusions

This summary draws together major findings from the report and restates them in relation to generally accepted knowledge about case management.

1. The standard formulation regarding the capacity of firm,
credible trial dates to generate case dispositions through settlement
or trial applies even in the unique context of asbestos litigation.338
Scheduling cases in large numbers and at the limits of the court’s
capacity to conduct trials produces dispositions. No limits to this
axiom of case management surfaced in this study.

2. There is a gap in pretrial and trial structures designed to
manage large groups of mass tort cases on a statewide basis. Be­
cause these cases are generally diversity cases, there is a natural
commonality among cases that arise in the same state. In states
with multiple districts, there is no incentive for a single district to
use consolidation or class action procedures on a statewide basis.
The Judicial Panel on Multidistrict Litigation has not used its ap­
parent authority to divide cases into subgroups at the state level.
The multidistrict procedure also lacks clear authority to consoli­
date cases for trial in a form other than a class action (if the trans­
feree district is not a proper venue for all of the cases).

3. Consolidation under Federal Rule of Civil Procedure 42(a) and
bifurcation or trifurcation (in traditional or reverse formats) are
flexible mechanisms for management of mass tort litigation. These
rules enable courts to shape procedures for grouping cases accord­
ing to the demands of a particular form of litigation. At the same
time, these novel formats create possibilities of prejudice to one or
both parties.

4. Individual assignment systems break down in the face of the
procedural complexity initially caused by filing a large number of
cases against a large number of defendants. Absent a districtwide
management system, repetitiveness and inconsistent adjudication
of multiple  motions  are likely  under  the  individual  calendar
system. Assignment of cases to a single judge for pretrial manage­
ment within the district (or state) may be a useful modification of

336. See, e.g., S. Flanders, Case Management and Court Management in. United States District Courts 33-35 (Federal Judicial Center 1977).

Chapter XI

the individual calendar system in such situations. Once the pretrial process is stabilized, the court can revert to the individual calendar system or consolidate the cases for mass disposition. Permanent as­signment of a form of mass tort litigation for individual trials by a single judge is a form of special treatment that is likely to generate delays.

5. Special assignment of asbestos cases to magistrates or other
assignments not directly linked to scheduling trials serves to delay
cases beyond the time of individually assigned cases.

6. Special assignments also work. As judges and lawyers gain ex­
perience with the litigation, they tend to reduce its complexity and
become able to settle or try increasingly large numbers of cases si­

  1. In the early stages of litigation of similar cases, systematic col­
    lection of information about prior settlements enhances the ability
    of counsel to settle cases and to develop formulas for settlements.
  2. All forms of judicial intervention in the settlement process, in­
    cluding the traditional role of intervening only upon request of the
    parties, lead to settlements. Establishing a clear trial structure,
    having standard rulings on motions, and conducting a few trials
    seem to be sufficient to establish case values for a large number of
    similar cases that involve the same lawyers.

9. Trial activity seems to level off after authoritative trial and
appellate rulings establish a framework for settlements. Judicial
burdens diminish sharply after initial trials.