Numbers and Concentration of Cases

 

In practical terms, substantial numbers of potential cases accu­mulated during the period of intensive use of asbestos. These cases continued to accrue until the rights to compensation were clearly established and corrective measures taken during the 1970s. After courts began to recognize the right of workers to recover damages from asbestos manufacturers, during the mid-1970s,37 these cases flooded the courts.38 Exact counts of pending asbestos cases are im­possible to find. Recent estimates of the number of cases range from about 33,00039 to 5O.OOO.40 New cases continue to be filed, and Manville estimates that it will have to pay between 83,000 and 100,000 personal injury claims as a part of its reorganization.41 Ap-

  1. Hensler, supra note 1, at 15.
  2. T. Willging, supra note 4, at 9.
  3. See, e.g., Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir, 1973),
    For a detailed description of the evolution of asbestos litigation during this stage,
    see P. Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial 39-93
    (1985). For a summary overview of that process, see Hensler, supra note 1, at 18-20.
    For a theoretical analysis of the development of a rough equilibrium of case values
    during this process, see McGovern, Toward a Functional Approach for Managing
    Complex Litigation, S3 U. Chi. L. Rev, 440, 481-83 (1986).

    1. See Hensler, supra note 1, at 33-34.
    2. Id. at 24.
    3. In re Johns-Manville Corp, No. 82 B 11,656-76, slip op. at 28-29, 68 Bankr. 618
      (S.D.N.Y. Dec.  18,  1986) (50,000 is “floor” based on more than 53,000 claimants
      voting in reorganization plan).
    4. Cram Down Reorganization Plan Approved for Manville,  1 Mealey’s Litig.
      Reps.: Asbestos, Dec. 26, 1986, at 5,508; 5,511 (testimony of G. Earl Parker, Manville
      executive vice president, estimating 60,000 claims to be paid in next ten years).

12

proximately 21,000 cases have been filed in the federal courts as of July 1986. See table 1.

It is important to note that asbestos cases are ultimately based on a claim of personal injuries to an individual worker or by­stander. As such, they demand individual attention at the point of allocation of damages and, to a lesser extent, in the proof of causa-tion-in-fact. While economies of scale can be attained through con­solidation and other procedural devices,42 allocations to individual cases must be calculated by agreement of the parties or by a jury or judge.

Asbestos cases filed during the 1970s tended to be concentrated in certain cities and districts because a large cohort of workers with injuries were shipyard workers in cities with major port facili­ties, such as Boston, Philadelphia, San Francisco-Oakland, and Los Angeles, or in areas with major asbestos manufacturing facilities, such as Tyler, Texas, and Manville, New Jersey. As the litigation developed, lawyers representing plaintiffs began to develop a sepa­rate subspecialty of asbestos litigation and to file hundreds of cases.43 One expects, however, that as information about asbestos litigation becomes more widely dispersed, cases in other locales will follow. Casual exposure to asbestos can cause asbestos-related dis­eases, and such exposure ranges from that of spouses and children of asbestos industry workers to those with peripheral connections with the industry, including insulation workers and brake-lining repair workers.44 Table 1 shows the distribution of all asbestos cases filed in federal courts. All districts with more than ninety as­bestos filings, based on data from the Administrative Office of the U.S. Courts, are listed.45

  1. See the discussion infra chapter 7.
  2. See also Hensler, supra note 1, at 16-18.
  3. B. Castleman, supra note 8, at 405-24.
  4. For all of the tables in this report, the data cover cases that were filed or ter­
    minated during the period from July 1, 1977, through June 30, 1986. Asbestos cases
    filed and terminated prior to July 1, 1977, are not included. Asbestos cases filed
    prior to July 1, 1977, and terminated after July 1,1977, are included.

The Administrative Office began to collect data specifically identifying asbestos cases on October 1, 1984. To identify asbestos cases filed prior to October 1, 1984, all personal injury products liability case captions were examined. If a major asbestos manufacturer was named as the defendant, that case was included in the data base.

13

TABLE 1

Concentration of Asbestos Filings in Federal Courts from July 1,1977, to June 30,1986

 

    Number of Percentage of
Circuit Court

Filings

Filings
First Cir. Me.

401

2

  Mass.

3,090

15

  Other

132

_
Subtotal  

3,623

17

Second Cir. Conn.

1,023

5

  Other

110

Subtotal  

1,133

5

Third Cir. N.J.

325

2

  E.Pa.

1,134

5

  W.Pa.

197

1

  Other

39

—.
Subtotal  

1,695

8

Fourth Cir. Md.

625

3

  S.C.

590

3

  E.Va.

391

2

  S.W.Va.

189

1

  Other

180

Subtotal  

1,975

9

Fifth Cir, W.La.

166

1

  E.La.

362

2

  N. Miss,

146

1

  S. Miss.

2,720

13

  N.Tex.

518

2

  E.Tex.

2,480

12

  S.Tex.

659

3

  W. Tex.

99

0.5
  Other

81

Subtotal  

7,231

34.5
Sixth Cir. E.Mich.

94

0.5
  N. Ohio

1,063

5

  S. Ohio

198

1

  E. Tenn.

210

1

  Other

124

1

Subtotal  

1,689

8.5
Seventh Cir. N. 111.

254

1

  Other

185

1

Subtotal  

439

2

Eighth Cir.      
Subtotal  

325

2

Ninth Cir. N. Cal.

334

2

  C.Cal.

168

1

  Hawaii

750

3

  W.Wash.

163

1

  Other

272

1

Subtotal  

1,687

8

      (continued)

14

Unique Characteristics

TABLE 1 (Continued)

 

Circuit Court Number of Pilings

Percentage of Filings

Tenth Cir. Subtotal  

149

1

Eleventh Cir. M. Fla, S.Fla. S.Ga. N.Ga. Other

306 105

245 155 4?

1 1 1

1

Subtotal  

858

4

D.C.Cir.

Subtotal

 

33

0

Total  

20,837

100

The districts of Massachusetts, Eastern Texas, and Southern Mis­sissippi account for 40 percent of the cases. No other court has more than 5 percent of the federal caseload. Overall, thirty-one of the ninety-three federal districts have more than ninety asbestos filings and account for 92 percent of all filings.

At the circuit level, the concentration is even more dramatic. District courts in the First and Fifth circuits account for 52 percent of all filings. District courts in the Seventh, Eighth, Tenth, and D.C. circuits have received only 5 percent.

A primary effect of the concentration of asbestos cases in a few courts is that the cases will disrupt the ordinary operations of the court and call for a special plan to cope with the block of cases. Special assignment systems and other modes of coping with the specialized and duplicative nature of the cases seem logical. Such plans may, however, have harmful side effects that will be exam­ined more thoroughly in a later chapter.46

In summary, the unique features of asbestos litigation are these:

  • long-term and widespread usage of a useful but dangerous,
    even deadly, substance without clear warnings to the users of
    its known or knowable hazards;
  • clear general  causation  and  reasonably  clear evidence  of
    knowledge of potential perils;
  • large numbers of individual cases, with unclear causation-in-
    fact, concentrated in a limited number of jurisdictions and in­
    volving  an   average   of twenty  defendants  and  a  limited
    number of specialist law firms.

46. See the discussion infra at notes 99 to 106.

15

Chapter II

Respondents uniformly were unable to identify a known sub­stance that had caused, or was likely to cause in the foreseeable future, a litigation explosion like that generated by asbestos cases. Their discussion of potential analogies to asbestos will be examined in a later chapter.47

47. See the discussion infra at notes 325 to 334,