Beyond Consolidation: Post-Aggregative Procedure in Asbestos Mass Tort Litigation


Linda S Mullenix

32 William & Mary Law Review 475


As the filing of federal asbestos personal injury and product liability cases continues, the asbestos litigation crisis is still upon the federal courts. On January 1, 1990, 29,466 asbestos cases were pending in all districts of the federal court system. Although courts have terminated a significant number of asbestos cases through various means, statistics reflect a steady flow of new cases into the system, which creates a total net increase in pending cases. In this sense, asbestos litigation has become the Sisyphean task of the federal court system: no matter how efficiently the courts process asbestos lawsuits, additional cases continue to enter the federal system without any sign of respite.

In addition to this steady flow of new asbestos cases, statistics reveal that plaintiffs are filing asbestos lawsuits throughout the federal court system, rather than in a few clustered districts. At the time of the first Federal Judicial Center Conference on Asbestos Litigation in 1984, asbestos litigation centered in a handful of district courts: Massachusetts, the Eastern District of Pennsylvania, the Southern District of Mississippi, the Eastern District of Texas, and the Northern District of Ohio. The asbestos docket in these five districts had, and continues to have, thousands of case filings. In the last six years, however, many other districts witnessed a marked increase in new asbestos cases. For example, the Southern District of West Virginia had a total of 342 asbestos cases through 1988; in 1989, 233 new asbestos cases were filed, representing sixty-eight percent of the court's entire previous asbestos caseload.

The Southern District of West Virginia is not alone in this phenomenon. Many other federal district courts now have multiple asbestos cases on their dockets. Whereas the asbestos litigation crisis burdened a few districts with thousands of cases in 1984, thirty-four federal district courts now have over one hundred asbestos cases pending. With the horizontal dispersion of these cases throughout the federal court system, the expeditious, inexpensive, and fair disposition of asbestos litigation is truly a system-wide problem affecting a substantial portion of the federal judiciary.

This study was prepared against this backdrop of changing asbestos demographics. In 1984, when asbestos litigation began to emerge as a distinct judicial administration problem, the Federal Judicial Center prepared a preliminary study discussing asbestos case management techniques for pretrial and trial procedures. In 1987, with an exponential growth of asbestos cases in certain districts, the Center issued a second study, which explored innovative case management techniques, the use of alternative dispute resolution (ADR) mechanisms, and the development of asbestos litigation expertise by judges and practitioners. Of particular interest was the finding of a lack of incentives for district-wide, statewide, or nationwide consolidation of cases.

At the time of this 1987 study, the circuit courts had certified and approved for class action treatment only two asbestos class actions. While federal courts grapple daily with the real problems of asbestos cases, the broader legal community searches simultaneously for innovative solutions to mass tort litigation. Asbestos cases present one type of mass tort litigation that raises issues of aggregative procedure. Although complex litigation always has been a part of the litigation landscape, only since the 1980's has the distinct phenomenon of mass tort litigation engaged the attention of the academic community, the organized bar, the bench, institutional law reform groups, judicial administration research organizations, and Congress.

Each of these groups is studying alternative approaches to coping with massive disaster and products liability litigation. Taken together, their efforts represent many different avenues for possible resolution of the mass tort litigation crisis. Without a doubt, the judicial administration problems presented by mass tort litigation are of great current concern. This study was prepared partially in response to the recommendation in the Federal Courts Study Committee Report of April 1990 that “[f]or the small number of instances in which extraordinarily high numbers of injuries may have been caused by a single product or event, the courts should explore, and the Federal Judicial Center should analyze and disseminate information about, tailored procedures to avoid undue re-litigation of pertinent issues and otherwise facilitate prompt, economical and just disposition of claims.”

In commenting on the deluge of asbestos cases in the federal courts, the Committee noted that some federal courts “determined that alternative procedures to reduce re-litigation are essential” and that they managed asbestos caseloads through mass trials, class certification, and heavy involvement in classwide settlements. Citing other innovative resolution techniques, the Committee concluded that “the Federal Judicial Center should collect and analyze data on the new methods and, as it thinks best, disseminate information to judges before whom such litigation is pending.”

In contrast to the sweeping reforms contained in other mass tort litigation proposals, the scope of this study is narrow. It analyzes the problems and procedures utilized in two federal asbestos mass tort litigations certified for adjudication under Rule 23 class action procedures. This report examines the management techniques used by Judge Robert M. Parker in Cimino v. Raymark Industries, Inc. and Judge James McGirr Kelly in In re School Asbestos Litigation. Cimino and School Asbestos Litigation provide two very different examples of class action treatment of mass tort litigation. Thus, this research expands on prior Federal Judicial Center studies of alternative trial structures for handling asbestos litigation.

Full Citation

Linda S. Mullenix, Beyond Consolidation: Post-Aggregative Procedure in Asbestos Mass Tort Litigation, 32 William & Mary Law Review 475 (1991).