Special Burdens on Court Personnel

Whether asbestos cases present a special burden to courts with high concentrations of cases needs to be viewed in the context of a court’s entire caseload. Two points help to set the stage. First, cases in the early years were concentrated in coastal regions or port cities, with resulting concentration of burdens in those areas. Second, asbestos litigation was superimposed on existing dockets, which generally were full. Indeed, data on weighted filings show that the last time the federal courts met the accepted congres­sional-judicial standard of 400 weighted filings per judge was in 1979, just before federal asbestos filings jumped from hundreds per year to a rate of more than 7,000 cases per year in the first half of 1986.³⁰⁹ Lag time between the early filing of cases and the process­ing of new appointments to the bench meant that burdens imposed in one time period were relieved years later, if at all.

Current data show that a large percentage of the increase in tort filings in the federal courts during the past decade can be attrib­uted to asbestos cases. Using estimates of 16,000 asbestos cases filed in federal court as of 1985, Galanter concluded that asbestos cases accounted for a large portion of the growth of products liability fil­ings in federal courts between 1973 and 1985.³¹⁰ Federal Judicial Center data indicate that those figures are conservative and that 20,837 asbestos cases were filed in the federal courts as of 1986.³¹¹ Asbestos filings account for a major increase in the demand on judges’ time imposed by products liability cases. In 1979, products liability personal injury cases were ranked ninth and constituted 1.85 percent of estimated judicial time; in 1985, such cases ranked fourth and asbestos cases alone accounted for 2.38 percent of esti­mated judge time.³¹² This bulge of filings was superimposed on a

809. See supra table 9. See also Flanders, What Do the Federal Courts Do, 5 Rev. Litig, 199, 201-03 (1986) (weighted filings per judgeship have passed the agreed threshold of 400 for creation of new judgeships and currently are up to 469).

1. Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3, 24-25
   (1986).
   1. See supra note 45 and table 1.
2. Flanders, supra note 309, at 206. The estimate of judge time is based on the
   most recent time study conducted by the Federal Judicial Center. S. Flanders, The
   1979 Federal District Court Time Study (Federal Judicial Center 1980).

Chapter VIII

caseload that had increased by 123 percent between 1975 and 1984.³¹³

Some courts addressed the new burden by concentrating early ef­forts on the management of the new caseload, with the effect of greatly reducing future burdens. After management systems and pretrial and trial rulings became established, judicial burdens less­ened and asbestos cases became simpler than typical products li­ability personal injury cases.³¹⁴ Other courts gave priority to other types of cases. In those courts, asbestos cases were singled out for special treatment, generally delegated to a magistrate for pretrial action, and not scheduled for trial. Those courts continue to face a mounting, but largely unmet, burden of asbestos litigation. On the other hand, those courts have husbanded scarce judicial resources for other priorities. Not investing judicial resources into asbestos litigation has allowed at least one court to trim its backlog of other civil cases.

In a study that included four of the federal district courts in­volved in this study (Eastern Texas, Eastern Pennsylvania, Massa­chusetts, and New Jersey), the Rand Corporation’s Institute for Civil Justice concluded that courts were not devoting the resources to asbestos cases that their numbers would otherwise command: “No court for which we have information devotes more than 1 per­cent of its judicial resources to asbestos case management even when asbestos cases account for a substantial portion of the civil caseload.”³¹⁵ The current study finds a greater investment of judi­cial resources in some districts, notably Eastern Texas and prob­ably Eastern Pennsylvania andNorthern Ohio, yet the conclusion is similar: Most courts have not allocated resources sufficient to schedule asbestos cases for trial within the same time period as similar nonasbestos cases.

Judicial burdens seem concentrated in the early stages of manag­ing the litigation. Most courts developed special case management procedures. In one court two judges worked on creating a proce­dure and having a hearing with counsel to discuss the proposals, investing a total of three judge-weeks in the process. In one of the specialist courts, the judge spent 50 to 75 percent of his time for two years in creating and implementing an intensive case manage­ment program. Another judge, who was relieved of new civil case

1. Galanter, supra note 310, at 15-16. Aside from asbestos litigation, however,
   much of the increase involved student loan and Social Security cases, which have
   relatively low case weights (.2637 and .0B56, respectively). S. Flanders, supra note
   312, at 53-54. See also Galanter, supra, at 17.
   1. See the discussion supra at notes 47 to 74,
   2. Hensler, supra note 1, at 79.

assignments for more than one year, devoted 40 to 50 percent of his time to developing case management orders, ruling on motions, and presiding at trials.

One judge combined trials with issuance of problem-solving case management orders, spending approximately 30 percent of his time for a year and a half in the trial and management of asbestos cases. Combined with managing an existing docket of civil cases (with no new civil cases drawn during the period) and keeping up with the criminal docket, this judge felt that his involvement was “pervasive.”

Not all of the case management development involved major bur­dens on judges. Some tasks can be delegated. In one court, the judges delegated the task of creating an order to the magistrate, who met with counsel and worked out the details of a thorough order, including a procedure for clustering cases, use of master pleading, a scheduling format, and a trial list. In a court that uses an individual assignment system for asbestos cases, one judge dele­gated the drafting of a case management order to his law clerk. The clerk got in touch with counsel and put together a draft that included consolidated pretrial discovery, standard interrogatories, and a scheduling order for clusters of cases.

As reported above,³¹⁶ judicial burdens were measured by accor­dion files of records during the first trials of asbestos cases. Of the courts that invested substantial resources into asbestos cases be­tween 1980 and 1985, none report burdens that are disproportion­ate to the volume of cases. Some report that there is absolutely no burden from the cases and that they rarely have any involvement because the cases generally settle. Judges who handled a dispropor­tionate share of the early cases have been able to return to their normal dockets after dispersion of cases to other judges. Often rul­ings on nondispositive motions, such as motions in limine, are de­ferred so that judicial efforts will not be wasted.

Judicial burdens from asbestos litigation should be measured in relation to the number of cases involved. In the Eastern District of Texas, the class action trial and previous consolidation of groups of cases absorbed a considerable proportion of Judge Parker’s time. Pretrial, trial, and postsettlement phases of the class action de­manded about 50 percent of his time for several months, including twenty-five days of trial time. During the entire year of that trial (1986), Judge Parker estimates that he spent not more than 25 per­cent of his time working on asbestos litigation. Seven hundred and forty-one cases were settled in the class action. Using the current

318. See the discussion supra at notes 51 to 52.