Asbestos litigation has presented and continues to present profound challenges to the judicial system. Courts in districts with large concentrations of asbestos personal injury cases have struggled, some more intensely and successfully than others, with myriad numbers of cases. Commentators have created a burgeoning literature that typically examines asbestos litigation as a more or less representative example of what has come to be known generally as mass toxic tort litigation.1 Some commentators distinguish between mass accidents, such as the familiar incidents at Bhopal, India, and Chernobyl in the U.S.S.R.,2 and latent toxic torts, such as those related to asbestos, groundwater pollution, or other exposures over a period of time. Explicitly or implicitly, some commentators and courts assume that asbestos cases foreshadow dramatic changes in the landscape of litigated disputes.3 This report will ex-
- “Mass toxic tort” or “mass exposure” litigation refers to court actions filed as a
result of exposure of large numbers of plaintiffs to toxic substances, either in a
single event or over an extended period of time. See, e.g., D. Hensler, W. Felstiner,
M. Selvin & P. Ebener, Asbestos in the Courts: The Challenge of Mass Toxic Torts
(1985) [hereinafter Hensler]; Feinberg, The Toxic Tort Litigation Crisis: Conceptual
Problems and Proposed Solutions, 24 Hous. L. Rev. 155 (1987); McGovern, Manage
ment of Multiparty Toxic Tort Litigation: Case Law and Trends Affecting Case Man
agement, 19 Forum 1 (1983); Parrish, Dimensions of the Problem, 8 State Ct. J. 5
(1984); Babin, Environmental Liability and the Tort System, 24 Hous. L, Rev. 27
(1987); Rosenberg, The Causal Connection in Mass Exposure Cases: A “Public Law”
Vision of the Tort System, 97 Harv. L. Rev. 849 (1984); Rubin, Mass Torts and Litiga
tion Disasters, 20 Ga. L. Rev. 429 (1986); Weinstein, Preliminary Reflections on the
Law’s Reaction to Disasters, 11 Colum. J. Envtl. L. 1 (1986); Special Project, An
Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36
Vand. L. Rev. 573 (1983); Note, Moss Exposure Torts: An Efficient Solution to a Com
plex Problem, 54 Cin. L. Rev. 467 (1985); Comment, Affirmative Judicial Case Man
agement: A Viable Solution to the Toxic Product Litigation Crisis, 38 Me. L. Rev. 339
(1986). - See, e.g., Weinstein, supra note 1, at 6-15. Chief Judge Weinstein’s typology dis
tinguishes the single-event mass tort, such as the Bhopal gas leak or the Kansas
City skywalk collapse, from multiple-event torts, such as those resulting from use of
toxic products over time. The proximity of the injury to the alleged cause and the
clarity of causation are two additional features that distinguish types of mass disas
ters. - See, e.g., Feinberg, supra note 1, at 156 (“The experience of one former asbestos
manufacturer [Manville Corp.], which saw its defense of a single claim explode into
a litigation burden of 17,000 claims by 1982, serves as a premonition of what might
yet be expected”); see also Hensler, supra note 1, at 110-24 (asbestos litigation as
sumed to be representative of mass latent injury torts; proposal for action commis-
Chapter I
amine the assumptions that asbestos litigation is representative of other toxic torts and that it forecasts vast changes in the landscape of disputes that reach the courts.
My overall approach in this report is to include both historical and predictive dimensions. On the historical side, I dissect and analyze the origin and development of asbestos litigation up to its current state, with an eye toward unmasking its essential features and documenting the efforts that courts and lawyers have used, successfully or otherwise, in their attempts to control the litigation. In the historical phase, I address questions such as these:
- What are the major characteristics of asbestos litigation that
might render it unique? - How complex are asbestos cases, and what types of burdens
have they imposed on the courts? - What special (managerial) treatments have courts formulated
to respond to the unique features of asbestos litigation, and
how effective have these treatments been?
On the predictive side, I use a table to guide projections about whether similar waves of litigation are likely to flood the courts in the future. This table is designed to aid courts in answering questions such as these: Are special treatments called for? What is the nexus linking proposed treatments to case characteristics? Are the unique characteristics of asbestos litigation likely to be repeated in other types of cases? What are the key variables? Two intertwined questions drive the analysis: Does asbestos litigation and other forms of toxic tort litigation warrant special treatment by the courts? If so, what treatments have been effective in responding to the unique characteristics of asbestos litigation and, therefore, may be useful in similar litigation?
sion to study issues that mass latent injury torts, exemplified by asbestos, pose for the civil justice system).
Other commentators have identified characteristics that distinguish asbestos litigation from other mass toxic torts. See, e.g., Rabin, supra note 1 (discussing identification, source, and boundary problems for injuries in toxic tort cases involving individualized harms, multiple party cases, or mass tort occurrences); see also Weinstein, supra note 1, at 6-15 (national disaster court recommended to cope with toxic torts).