Management by Mass Tort Characteristics

While the recurrence of an asbestos-type phenomenon appears unlikely, table 13 also demonstrates that cases with some of the characteristics of asbestos are a reality. Table 14 is designed to aid in the transfer of case management information from this report to other types of mass tort litigation by isolating each characteristic and identifying relevant case management procedures.

Table 14 is largely self-explanatory. Management techniques that were tried and discarded during asbestos litigation (collateral estop­pel comes to mind) are not included. Techniques that were not used, but which have the potential to be useful, such as statewide class action or MDL proceedings, are included. The list is intended to be suggestive, not exhaustive.335

TABLE 14 Case Management Approaches Related to Case Characteristics

Characteristics                                                      Case Management Approaches

1.   Long latency period                    Pretrial consolidation for discovery

Accumulation of discovery materials

Computerization of records re products and exposure at different sites (by counsel)

Multidistrict discovery, statewide or national (not used)

2.   Serious injuries                          Creation of inactive asbestos docket

Automatic exchange of medical information

3.   Widespread product use             Nationwide or statewide procedure for discovery

and exchange of information regarding national defendant’s production, distribution, and knowledge of dangers, such as MDL (not used)

335. See generally  Manual  for  Complex   Litigation,   Second  (Federal  Judicial Center 1985).

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The Future

 

Characteristics


TABLE 14 (Continued)

Case Management Approaches

 

 

 

4. Large numbers of cases

5. Dangers known or know-able, but suppressed

6. Clear general causation

7. Disputed causation-in-fact

8. Large numbers of defendants


Assignment to single judge or committee for pretrial management

Dispersion to all judges for trial Master trial calendar

Consolidation of cases in clusters organized by case characteristics and plaintiffs attorney

Class action, districtwide Class action, statewide (not used)

Multidistrict procedures with statewide groupings (not used)

Discovery procedures listed in #1 and #3, above

Consolidation of punitive damages claims (not used)

Mandatory class action after formal findings of limited funds (not used)

Consolidated rulings on general causation and state-of-art and other common issues—or class action

Reverse bifurcation

Discovery procedures listed in #1—3, above, especially automatic exchange of medical information

Computer data bases for case evaluation

Alternative dispute resolution procedures, if necessary and not abused to delay trials

Judge-hosted settlement conferences Special master-hosted settlement conferences Firm trial dates Liaison counsel

Private agreements among defendants to allocate awards and coordinate defense

Standard districtwide rulings on pretrial and evidentiary motions

Deeming of filing of cross-claims

Opt-out motions procedure

Master docketing systems

Consolidation and other procedures listed in #4, above

Assignment to single judge or committee for pretrial management