While the recurrence of an asbestos-type phenomenon appears unlikely, table 13 also demonstrates that cases with some of the characteristics of asbestos are a reality. Table 14 is designed to aid in the transfer of case management information from this report to other types of mass tort litigation by isolating each characteristic and identifying relevant case management procedures.
Table 14 is largely self-explanatory. Management techniques that were tried and discarded during asbestos litigation (collateral estoppel comes to mind) are not included. Techniques that were not used, but which have the potential to be useful, such as statewide class action or MDL proceedings, are included. The list is intended to be suggestive, not exhaustive.335
TABLE 14 Case Management Approaches Related to Case Characteristics
Characteristics Case Management Approaches
1. Long latency period Pretrial consolidation for discovery
Accumulation of discovery materials
Computerization of records re products and exposure at different sites (by counsel)
Multidistrict discovery, statewide or national (not used)
2. Serious injuries Creation of inactive asbestos docket
Automatic exchange of medical information
3. Widespread product use Nationwide or statewide procedure for discovery
and exchange of information regarding national defendant’s production, distribution, and knowledge of dangers, such as MDL (not used)
335. See generally Manual for Complex Litigation, Second (Federal Judicial Center 1985).
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The Future
Characteristics
TABLE 14 (Continued)
Case Management Approaches
4. Large numbers of cases
5. Dangers known or know-able, but suppressed
6. Clear general causation
7. Disputed causation-in-fact
8. Large numbers of defendants
Assignment to single judge or committee for pretrial management
Dispersion to all judges for trial Master trial calendar
Consolidation of cases in clusters organized by case characteristics and plaintiffs attorney
Class action, districtwide Class action, statewide (not used)
Multidistrict procedures with statewide groupings (not used)
Discovery procedures listed in #1 and #3, above
Consolidation of punitive damages claims (not used)
Mandatory class action after formal findings of limited funds (not used)
Consolidated rulings on general causation and state-of-art and other common issues—or class action
Reverse bifurcation
Discovery procedures listed in #1—3, above, especially automatic exchange of medical information
Computer data bases for case evaluation
Alternative dispute resolution procedures, if necessary and not abused to delay trials
Judge-hosted settlement conferences Special master-hosted settlement conferences Firm trial dates Liaison counsel
Private agreements among defendants to allocate awards and coordinate defense
Standard districtwide rulings on pretrial and evidentiary motions
Deeming of filing of cross-claims
Opt-out motions procedure
Master docketing systems
Consolidation and other procedures listed in #4, above
Assignment to single judge or committee for pretrial management