Consolidation and Assignment

Faced with the flood of paperwork associated with asbestos cases, most of the courts in districts with substantial caseloads have devised standardized procedures for routine handling of pretrial issues. Generally, these courts have assigned the cases to a single judge for pretrial purposes.⁸¹ Sometimes the court will designate a magistrate or special master to supervise discovery proceedings⁸² or to develop standardized discovery materials.⁵³

Rule 42(a) of the Federal Rules of Civil Procedure provides for consolidation of cases in these terms:

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any and all matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Federal courts have consolidated asbestos cases primarily for pretrial purposes, focusing on the supervision of discovery.⁸⁴ Rule 42(a) authorizes more extensive consolidation, and some courts have taken advantage of that opportunity.⁵⁵

Pretrial consolidation of cases and assignment to a single judge or magistrate serve the important purpose of facilitating the active, unified management of the litigation without unnecessary duplication of effort. A single judge or magistrate can monitor the pretrial activities of counsel and rule on motions with a uniformity and consistency that rarely can be achieved by a multiplicity of judges. By monitoring a wide range of asbestos litigation, a single judge also accumulates thorough knowledge of technical issues common to the cases.

Such benefits, however, may be limited. The ultimate goal of case management is to set a firm, credible trial date and bring the case to a conclusion through either trial or settlement. If the judge to whom the asbestos cases have been assigned is the only person on the court with the ability to bring the cases to trial, the ultimate purpose of the assignment may be lost. The court simply may not be able to schedule enough cases for trial. If the pretrial issues have been assigned to a magistrate, the effects may be worse because of the inability of the magistrate to conduct trials without the consent of the numerous parties,⁵⁶ a consent unlikely to be given by the multiple parties in a typical asbestos case.

Assignment to a magistrate has additional advantages and disadvantages. The magistrate may become the only “specialist” in asbestos litigation; and other judges’ lack of familiarity with asbestos cases may help to perpetuate the myth of the complexity of those cases. On the other hand, the magistrate may be better able to fa­cilitate settlement precisely because the magistrate is unlikely to preside at trial.⁵⁷

When properly balanced with the participation of judges who will be available to conduct trials in asbestos cases, use of a magistrate can help to clear the proliferation of motions that a multiplicity of parties creates. Delegation of duties to a magistrate should be seen as part of the process of bringing a case to a firm trial date and not as a substitute for judicial involvement in the process.

Courts have dealt with assignment of pretrial issues in several ways. One court has divided cases by work site and assigned a different judge to each site, presumably on the theory that similar discovery issues will relate to the records of the employer at one site.⁵⁸That court also established a master trial calendar that distributed all pending cases among seven judges on a rotating basis; one judge is assigned each month to hear two clusters of approxi­mately five cases each.⁵⁹

Several courts have assigned pretrial matters to one judge and then reassigned the cases to all members of the court for trial.⁶⁰ Other courts have assigned all cases to a single judge on the theory that the cases will settle as the staggered trial dates approach and the burden on the single judge will not be overwhelming.⁶¹ (For further discussion of systems of calendaring cases for trial, see “Systems of Calendaring” infra.)

1. See, e.g., Lambros et al., supra note 45, at 3; see generally Pellicoro & Hopkins,
   supra note 5.
2. See, e.g., In re Massachusetts Asbestos Cases, Pretrial Order No. 1, M.B.L. No.
   1 (D. Mass. Feb. 7, 1979),
   1. See, e.g., Lambros et al., supra note 45, at 3-6.
3. See, e.g., Pre-trial Order No. 1, In re General Dynamics Asbestos Cases, C.M.L.
   No. 1 (D. Conn. 1976) (“consolidated for purposes of discovery, and tentatively for
   purposes of trial”); see also Neubauer v. Owens Corning Fiberglas Corp., 686 F.2d
   570, 571 (7th Cir. 1982), cert, denied, 459U.S. 1226 (1983).
4. In the Eastern District of Texas, the district court has discussed with counsel
   the possibility of trying about fifty cases in a consolidated format on liability issues
   and considering damages in clusters of five to ten. Judge Parker Mulling New Trial
   Approaches, Mealey’s Litig. Reps. Asbestos, July 27, 1984, at 933. Judge Parker finally decided on a group of thirty plaintiffs, all represented by the same counsel and each case involving similar injuries to insulation workers or their spouses. Newman v. Johns-Manville, No. M-79-124-CA (E.D. Tex. Oct. 24, 1984).

In Maryland, the district court invoked rule 42(a) to support the consolidation of five to eight claims for trial. The claims were grouped according to “(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged (e.g., lung, colon, mesothelioma).” Memorandum Order, In re All Asbestos Cases Pending (D. Md. Dec. 16, 1983).

1. See 28 U.S.C. § 636(c).
2. See H. Will, R. Merhige, Jr., & A. Rubin, The Role of the Judge in the Settlement Process 18-19, 221Federal Judicial Center 1977).
3. See Baltimore Multiple Litigation Nos. 1, 2, 3, and 4 (D. Md. 1980, 1981, 1983,
   1984).
4. 1. Memorandum Order, In re All Asbestos Cases Pending, Attachments A, B, C
      (D. Md. Dec. 18, 1983).
   2. The U.S.district courts for the Western District of Pennsylvania, the District
      of New Jersey, and the Eastern District of Texas follow this approach.
   3. The U.S.district courts for the Northern District of Ohio and the District of
      South Carolina follow this procedure.