Assignment Systems: Should Asbestos cases be treated separately?

Starting from the proposition that the scheduling of trials is es­sential to the disposition of asbestos cases, the next step is to exam­ine the various systems used to assign asbestos cases for trial. In the course of looking at different models of organization, this report posits an underlying question that logically precedes the cre­ation of special systems for asbestos litigation: To what extent, if any, should special treatment be given to asbestos cases in the as­signment process? After examining models of special systems, the report will return to the question of whether special treatments are warranted.

In describing the assignment systems used in the ten courts stud­ied, there are four fundamental issues:

• Does the court assign the cases to judge-specialists⁷⁸ who will
  maintain responsibility for their disposition and, if so, what
  effects does this have on the disposition of cases?
• If a specialist is to be used, how does the court choose a spe­
  cialist? Does it make a difference if a volunteer steps forward
  as opposed to having an individual designated by the chief
  judge?
• What, if any, benefit or credit is afforded a judge who under­
  takes a special assignment to manage asbestos cases?
• In what ways, if any, do other members of the court remain
  involved in the assignment and trial of cases?

In looking at the practices for assignment of asbestos cases, the diversity is striking. There is no universally acclaimed model. Indeed, no two courts of the ten studied operate programs that

75. By the term specialist I mean that the judge acquires a special knowledge of the subject matter and procedures relating to asbestos litigation. I do not intend to connote that any judge will deal exclusively with asbestos cases. In the courts stud­ied, I did not find a single judge who handled only asbestos cases, even on a tempo­rary basis.

verse bifurcation (trial of damages first, typically taking two days) and rarely conduct a full trial. In another district, respondents esti­mated ten days, but there had not been a trial since 1984. In four districts, there had been not been any trials recently enough to support an informed estimate.

 

In one jurisdiction, respondents expressed a need for more trials to clarify the law and set values for cases involving serious inju­ries. In another jurisdiction, parties anticipated that a jury trial would be necessary to support values for cases from a new work­site.

Districtwide stays of all asbestos litigation, pending resolution of appeals, may have impeded dispositions in one district. On the other hand, the stays may have simply validated a de facto delay relating to the availability of judicial resources.

Scheduling of trials is the dominant need in asbestos litigation.⁷⁴ In those districts with delays in dispositions, lack of trial dates is reported to be the primary cause. A major factor implicated in the scheduling of trials is the court’s assignment system for asbestos cases.

74. See also T. Willging, supra note 4, at 24-31.

In the early stages of asbestos litigation, that infor­mation was difficult to obtain. Discovery of the available evidence, however, has accumulated for each jobsite so that it is frequently possible to identify invoices and co-worker testimony that will con­firm or refute plaintiffs claims without extensive new discovery. At least one plaintiff firm has computerized records of such infor­mation.

 

In the Eastern District of Louisiana plaintiff and defense lawyers jointly established a document depository, accessible to all lawyers, that includes documents from all cases, such as medical records, depositions (including depositions and documents from other juris­dictions), medical articles about asbestos dating back to the nine­teenth century, and documents relating to each defendant.⁶⁵

On the other hand, in a few jurisdictions, the pretrial process re­mains unorganized, resulting in unfettered contentiousness. Discov­ery battles highlight the need for a settled process to exchange in­formation, but counsel continue to squabble and resist, perhaps representing the dominant legal culture of their locale. Some courts further distance themselves from resolution of the cases by delegating pretrial functions, including monitoring of discovery dis­putes, to magistrates, who have little power to control the general strife or bring cases to trial.⁶⁶ The absence of firm trial dates and realistic discovery cutoffs in those jurisdictions seems to add fuel to such strife.

ing trial or settlement, A test of the adequacy of a special assign­ment system is whether it is designed to cope with large numbers of cases.⁷⁷