Asbestos Litigation: One Judge's Story

Courts are having to improvise, but it comes at a cost

'We've settled 10 of the cases," the plaintiff's lawyer said, "so only one needs a trial."

Not bad, the judge thought. In fact, very good. The 11-case docket contained nothing but asbestos litigation, each case a distressing tale of lung disorder induced by inhaling asbestos fibers years before, and part of a flood that threatened to swamp many state - and federal - court systems.

No one really knows the total number of cases. Indeed, the inability to obtain an accurate count has hampered efforts to coordinate nationwide management efforts.

At the moment, the judge estimated, the figure exceeded 60,000, of which the 800 in his state had been assigned specifically to him. This was a small fraction of the national total: His counterpart in Los Angeles struggled with 5,000 individual suits. Nonetheless, these 800 cases, combined with the nonasbestos matters on his docket, loomed as a nightmare of judicial administration.

With so many claims to adjudicate, the one-at-a-time, first-come-first-served method of trial would never work. The average asbestos trial took about three days. With about 20 new cases coming in every month, if each one went to trial the court would fall further and further behind its entire workload, including nonasbestos lawsuits.

The effects of asbestos take years to appear. A typical plaintiff had been exposed while working as a youngster in a shipyard during World War II, had gone on to some other occupation or retired, and had developed symptoms only recently. Others had been working all along in jobs that required handling asbestos but had remained healthy until only a few years earlier.

Whatever the history, the plaintiffs tended to be older citizens - or their survivors, generally widows. For judges, the pressure mounted to do something for them promptly.

A political fact added to the urgency. Many plaintiffs had first learned of the condition as a result of X-ray screenings sponsored by concerned labor unions. Legislators, responding to union inquiries, began to press the courts to deal with asbestos litigation more efficiently.

Moreover, asbestos business tended to concentrate in the hands of very few lawyers. This produced great financial rewards - the principal owner of the Baltimore Orioles, for example, is perhaps the country's most successful counsel for asbestos plaintiffs. Yet concentration meant that even if the courts could accommodate the crush, no lawyer could service all his or her clients.

Courts necessarily began to improvise. For example, instead of calling up the cases one at a time, the court would have the parties bunch them. Thus a lawyer representing numerous plaintiffs would, with counsel for the various asbestos companies, select the cases for trial in a given month. This took the power of assignment away from the judge, where it belongs, but it was the price of moving the cases along.

Asbestos ailments vary in severity. To regulate the cash flow, asbestos manufacturers (or, more accurately, their insurers) insisted that each group of cases contain a variety of maladies. This produced peculiar results, as the judge was soon to learn in the case before him.

During the second day of trial, the lawyers asked for a recess. With the jury gone, the defendant's lawyer said to his opponent for the judge to hear: "We've paid a total of $150,000 for the other 10 cases. Why won' t you take the average - $15,000 - for this one?"

"Because I honestly think it's worth $18,500," came the reply.

"Judge, may I make a phone call?" the defendant's lawyer asked.

"We'll all wait right here," the judge said.

A few minutes later, the lawyer returned. "We can't pay $18,500 for this case," he told the other attorney. "But don't worry, the case is settled. We'll just add $3,500 to the $150,000 on the other cases, and give you $15,000 for this one. That's a total of $168,500. Tell me how to cut the checks."

"Great," replied the plaintiff's lawyer.

THE deal the parties struck left the judge uneasy. It represented not merely a mass settlement of cases entitled to individual consideration, but it also gave the lawyer for the 11 plaintiffs the right to decide, without consulting anyone, just how the money would be divided. At the very least, he could take the additional $3,500, which the defendant was now willing to pay the first 10 plaintiffs, and bestow it on the 11th.

Yet even in his dismay, the judge realized his lack of power.

The parties did not need his approval. They merely happened to do their business where he could overhear. And without this conniving the cases would not settle, and plaintiffs in asbestos cases would never obtain any remedy at all.

"Very well," the judge said quietly, "See you next month - unless everything settles."

*Hiller B. Zobel sits on the Massachusetts Superior Court.

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