Academic journal article
By Hensler, Deborah R.
Texas Law Review , Vol. 80, No. 7
Asbestos worker injury litigation is now in its fourth decade in the United States.1 At least 500,000 asbestos workers and their family members have brought claims against one or more defendant corporations.2 Workers claiming injuries due to exposure to asbestos have sued more than a thousand corporations, in a wide range of industries.3 Some corporations have had hundreds of thousands of claims brought against them.4 As a result of the litigation, more than forty corporations have filed for insolvency or reorganization under Chapter 11 of the Bankruptcy Code.5 Insurance analysts report that U.S. insurers have paid more than $20 billion to resolve claims through 2000 and estimate that the total cost to U.S. insurers may ultimately be several times that.6 Estimates of the ultimate costs to resolve all U.S. asbestos claims, including expenditures by U.S. and non-U.S. insurers and uninsured losses paid directly by corporations, range upwards of
$200 billion.7 And new epidemiological estimates suggest that the number of asbestos-exposed individuals may be several times the number previously believed to have been exposed.8
At least since the 1980s, asbestos litigation has been a source of consternation for the courts. By the mid-1980s, asbestos cases constituted a significant fraction of all civil filings in the ten federal and state courts where the litigation was then concentrated;9 in 1990, one out of every three civil cases filed in the Eastern District of Texas was an asbestos personal injury claim.10 By 1994, the Los Angeles Times reported that about fifty new asbestos cases were filed daily in the U.S.11 A series of RAND studies of asbestos litigation in the early 1980s found that plaintiffs obtained less than forty percent of every dollar spent to resolve an asbestos personal injury claim,12 that cases took many years to resolve (sometimes reaching a conclusion long after the plaintiff had died), and that some courts had given up on trying to process their asbestos cases, believing that only legislative action could deal with the masses of claims that were concentrated in their courts.13 In 1987, the Federal Judicial Center convened a special conference of judges and asbestos plaintiffs and defense counsel to discuss the litigation and options for resolution.14 In 1990, U.S. Supreme Court Chief Justice Rehnquist appointed a special committee of the Judicial Conference to consider asbestos litigation, which called for congressional action to establish a "national asbestos dispute-resolution scheme."15 One member of the committee suggested that such a scheme should be modeled along the lines of the Black Lung program. 16 The Committee also recommended that the Judicial Panel
on Multidistrict Litigation (JPML) consolidate all asbestos cases pending in the federal courts. The JPML acted on the recommendation and transferred the consolidated cases to the Eastern District of Pennsylvania,17 where they were assigned to Judge Charles Weiner, who had established a reputation in that district for efficient management of asbestos cases and for facilitating large-scale settlements.18
Efforts to legislate a resolution of asbestos injury litigation date back to the 1970s,19 but except for a revision to the Bankruptcy Code to validate the resolution of asbestos claims by trusts established under reorganization plans,20 no legislative initiative has borne fruit. In the face of congressional inaction, the Judicial Conference in 1991 asked the Civil Rules Advisory Committee to consider amending Rule 23 to facilitate the resolution of asbestos and other mass tort litigation.21 Initially, the committee considered restructuring Rule 23 with mass tort litigation in mind. But over time, the committee's attention shifted to the rising controversy over consumer class actions, and it directed its efforts towards raising the bar for class-action certification for money damage cases generally, rather than lowering it for mass torts. …