Effects of Special Treatment

In several districts, an effect associated with separation of asbes­tos cases for special assignment is that asbestos cases have a longer queue. For the ten courts studied, the median time between filing and termination for all terminated asbestos cases was 641 days (mean = 756). That time far exceeds the median time for all non-motor vehicle personal injury cases in all districts, which was thir­teen months (390 days) in the year ending June 30, 1985.” The comparable time period for nonasbestos products liability cases in the ten study districts is 409 days (mean = 562).

The reader should not, however, rush to the judgment that spe­cial treatment causes the delay in disposition of asbestos cases. As­bestos cases have many unique features that could be expected to lead to delays, especially the presence of multiple parties (and the associated settlement complications),¹⁰⁰ stays of cases pending ap­pellate decisions, * °¹ and the long latency period, with its associated discovery complications and evidentiary disputes.¹⁰² After all, the mean and median times for disposition of all cases are simply ag­gregate figures that focus on a central point; it is not necessarily unreasonable that asbestos cases, with their distinct complications, have taken more than the mean or median length of time to be ready for trial. The key question at this time is whether the special treatment of dispersing asbestos cases at a rate slower than the average for the court is warranted once a pretrial case manage­ment system has been established.

In most jurisdictions, pretrial management coupled with a few trials renders asbestos litigation routine. Judicial involvement in the typical case is generally limited to application of standard rul­ings or participation in a settlement conference. New substantive issues are relatively rare and some courts have established proce­dures to dispose of these issues on a districtwide basis. If a trial is deemed necessary, judicial involvement will increase, but this is a rare event. The norm is that cases settle when they are called for trial.

In jurisdictions in which the cases have become routine, justifica­tion for special trial systems is elusive. If special treatment results

99.  Administrative Office of the U.S.Courts, Annual Report of the Director 318
(1985).

1. See generally T. Willging, supra note 4, at 7-10 and sources cited therein.
2. See the discussion supra at note 81.
3. Id.; see also Green, The Inability of Offensive Collateral Estoppel to Fulfill
   Its Promise: An Examination of Estoppel in Asbestos Litigation, 70 Iowa L. Rev. 141,
   190-98 (1984) (issues relating to knowledge of dangers and determination of defects
   in asbestos products).

in substantial delays for asbestos trial assignments in comparison with similar cases, are there special features of asbestos litigation that might justify the delays? Two justifications are presented, one from the perspective of the court, the other from the perspective of the defendants. From the court’s perspective, assignment of cases for trial in limited numbers represents an implicit allocation of re­sources to one type of litigation. This assumes, of course, that the cases will demand large amounts of judicial resources, a contention that this report contradicts. Assume, however, that scheduling of asbestos litigation for trial may drain scarce judicial resources (per­haps because of a general impasse in settlement negotiations be­tween opposing lawyers). Even in those circumstances, the only grounds for distinguishing asbestos cases from other cases appear to be special “cash flow” problems that asbestos defendants may be experiencing. From the defendants’ perspective, cash flow is the main justification for such special treatment. The two arguments converge. Both rationales cede power to defendants to control the trial docket by acceding to short-term threats of trials.¹⁰³

The cash flow justification generally is based on representations of counsel in informal contexts. Competent evidence of cash flow problems might justify delays;¹⁰⁴ other alternatives, however, should be considered. A court could reasonably leave the issue for the parties to resolve, on the assumption that the plaintiffs can demand evidence of financial straits and can tailor the timing of payments to the financial position of the defendants or theWel­lington facility. Another solution would be to leave the question of solvency to a forum, such as a bankruptcy court or a court consid­ering a nationwide class action, that provides a structure to appor­tion assets fairly to all claimants, to assess plans for future oper­ations, and to evaluate a defendant’s ability to make payments.

Resolution of the “cash flow” debate is beyond the scope of this report. The issue deserves attention because it appears that several courts have, perhaps without extensive deliberation or based on outdated assumptions about the complexity of asbestos litigation, failed to allocate the resources to asbestos cases that their numbers

1. Long-term employment of a trial strategy deprives defendants of the benefits
   of settlements, which they have chosen in a high percentage of cases. These benefits
   include lower transaction costs and reduction of risks of high awards that, in turn,
   increase the value of all cases.
2. Cf. In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 305-06 (6th Cir. 1984)
   (evidence of limited fund required before certification of a mandatory class action
   under Fed. R. Civ. P. 23(b)(lXB)); In re Northern Dist. of Cal. Dalkon Shield I.U.D.
   Prods. Liab. Litig., 693 F.2d 847, 852 (1982), cert, denied, 459 U.S. 1171 (1983) (evi­
   dence of net worth, earnings, and available insurance necessary to establish founda­
   tion for mandatory class action based on limited fund).