Settlement

Settlement is by far the predominant mode of disposition of as­bestos cases.

1. See, e,g., In re Massachusetts Asbestos Litig., M.M.L, Nos. 1-5 (all cases),
   Order of Magistrate Cohen Amending Pretrial Order No. 4 (D. Mass. May 8, 1986).
2. The depository serves as a source of access to the documents, but the parties
   have not stipulated to the authenticity or admissibility of the documents.

For a discussion of the general issue of access of other plaintiffs to discovery infor­mation from prior cases, even when that information is covered by a protective order, see Comment, Mass Products Liability Litigation: A Proposal for Dissemina­tion of Discovered Material Covered by a Protective Order, 60 N.Y.U. L. Rev. 1137 (1985).

66.  In none of the jurisdictions studied had the parties consented to trial by a
magistrate in an asbestos case.

24

Complexity and Simplification

TABLE 3 Procedural Progress at Termination of

Federal Asbestos Cases

(All Districts; All Beported Terminations)

July 1,1977, to June 30,1986

As table 3 indicates, 73 percent of the asbestos case dispositions are recorded as settlements, voluntary dismissals, or consent judg­ments.⁶⁷ Less than 3 percent of the cases proceed to bench or jury trial, far fewer than the trial rate generally reported.⁶⁸ Pretrial motions account for an additional 1 percent of the cases that clearly involve judicial action. Table 4 presents data for the ten

1. This is close to what might be considered normal for tort litigation. In the
   University of Wisconsin’s Civil Litigation Research Project, 75 percent of the cases
   were reported as “not adjudicated.” Kritzer, Adjudication to Settlement: Shading in
   the Gray, 70 Judicature 161, 164 (Oct.-Nov. 1986). Kriteer excluded from his classifi­
   cation all cases that were tried, decided without trial or dismissed for cause, had
   motion ruling, or defaulted. Kritzer’s categories, however, differ from the categories
   used to construct tables 3, 4, and 5. The latter include among settlements cases in
   which there were earlier rulings or other judicial action.
2. Id, at 162, 164 (10 percent rate). See also infra table 5 (9 percent rate for fed­
   eral personal injury products liability cases in the ten study courts).

25

Chapter III

study courts only, and table 5 shows the comparable rates for prod­ucts liability litigation in those ten federal district courts for the same time period, 1974-1986.

TABLE 4

Procedural Progress at Termination of

Asbestos Cases in TenFederal Districts,

July 1,1977, to June 30,1986

Comparing tables 4 and 5, the most striking contrast is in the trial rates. Products liability cases in the ten study courts are more than four times as likely to go to trial than are asbestos cases. The percentage of settlements was approximately identical (74 versus 73 percent). Only 5 percent of the asbestos cases are disposed of by trial or ruling on pretrial motions, compared with 15 percent of the other products liability cases.

In the great majority of the districte studied in this report, there had been few complete trials during 1985 and 1986. In only three of the ten districts did respondents report more than two trials during this period. Data from records of the Administrative Office of the U.S. Courts also show few trials during this period.

26

Complexity and Simplification

TABLE 5

Procedural Progress at Termination of Personal Injury Products Liability Cases

in Ten Federal Districts, July 1,1980, to June 30,1986

In general, the annual rate of trials has increased slightly from 1983 to 1986. The average in 1986 is one jury trial per district. Typically, a handful of trials provide information on values that drive the initial settlements. The values are adapted to variations in individual cases, and soon a matrix of values becomes available to the parties. Trials are necessary only when new evidence or untested cases, such as those from a different jobsite, arise.

Settlement formulations, however, have not become as mechani­cal as a workers’ compensation schedule of benefits. One lawyer ar­ticulated the standard view of the evolving settlement process by describing it as “one part analysis and one part intuition.” Lawyers and judges report a range of values for each type of disease and use their analysis of the facts and their judgment and intuition to evaluate a case within that range.

27

Chapter III

TABLE 6

Asbestos Jury Trials in Ten Federal District Courts

Prior to 1983

^aData for 1986 cover the period front January 1 to Ju ne 30,1986, only.