Courts may cluster cases differently for trial than they do for settlement. Cases for trial are grouped according to such factors as evidentiary issues and representation by counsel. Generally, courts strive to combine cases involving similar diseases from the same work site and involving the same trial counsel. One court includes a range of cases, from the least serious to the most serious, in each group, thereby giving each side an incentive to settle the entire package.100In other courts, cases may be grouped according to work site, occupation, time of exposure, disease, and counsel.101 None of the courts group cases of living plaintiffs with those of the estates or survivors of deceased plaintiffs.
In theory, clustering cases for trial and clustering them for settlement are not incompatible; in practice, it may be difficult to implement separate tracks for trial and settlement because of the strong correlation between settlement and establishment of a firm trial date. In a plan such as the OAL one, in which there are 120 days between the major settlement conference and the trial, the cases might be reorganized for trial if settlement efforts fail.
- Courts have recognized that an ethical problem is involved in the distribution of a lump-sum settlement to multiple plaintiffs. In one case, the court appointed two retired state court judges to distribute a settlement fund to numerous plaintiffs. See also Inside Agent Orange, Nat’l L.J., May 21, 1984, at 1, col. 1. In that settlement, the parties and the court created an administrative structure to distribute the fund.
- See, e.g., Memorandum Order, In re All Asbestos Cases Pending (D. Md. Dec.
16, 1983).