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Appendix C: Mass Torts Problems & Proposals
Judge Weinstein’s criteria imply that there are problems with dispersal of decisionmaking
authority among many judges and forums, a proliferation of substantive laws to
be applied, lack of adequate judicial support facilities, and so forth. By starting with “desirable
criteria,” such proposals look to an idealized resolution of problems. Such criteria
make it clear that the measure of successful resolution of the mass torts litigation problems
will require creating a system that will be markedly different from existing systems
for managing ordinary litigation.
Along similar lines, District Judge William W Schwarzer (N.D. Cal.), a former director
of the Federal Judicial Center, posited eleven specific standards that a national solution to
asbestos litigation would ideally satisfy. Such a solution would:
1) address the problems of potential claimants whose disease either remains latent or
has not reached its most disabling stage; 2) incorporate all state and federal asbestosrelated
cases and grant the power to stay proceedings in courts that are not involved in
implementing the national solution; 3) encompass all claims against all potential defendants
relating to exposure to asbestos; 4) create or authorize federal laws, standards,
or rules to govern treatment of discovery, procedural motions, evidence, and substantive
law issues, such as punitive damages; 5) provide an alternative to bankruptcy reorganization,
enabling defendants to continue to operate viable businesses; 6) create a
fund for present and future victims by identifying and securing the maximum feasible
contributions from each defendant through either bankruptcy or a new alternative; 7)
design a mechanism for existing trusts, generally created under Chapter 11 of the Bankruptcy
Code, to link into a single fund with a single administrative structure; 8) reserve
punitive damages until the claims of present and future claimants for compensatory
damages have been satisfied; 9) formulate a streamlined procedure for making claims;
10) provide a reasonable method for compensating counsel in proportion to the time
necessary to present claims to the tribunal(s); and 11) give priority to claimants and
their dependents when the claimant is seriously impaired and has an urgent need for
immediate compensation to pay expenses and replace lost earnings.19
Note that these two sets of criteria approach the issues from different angles. Combining
the two approaches would result in an even more complex and ambitious blueprint
for resolving perceived problems. We present these two sets of criteria for their value in
conceptualizing the range of interlocking issues that need to be addressed in crafting an
ideal solution to national mass torts problems.
19. Asbestos Litigation Crisis in Federal and State Courts: Hearings before the Subcomm. on Intellectual
Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong. 126-127 (1992) (statement
of William W Schwarzer, Senior U.S. District Judge and Director, Federal Judicial Center) [hereinafter
Schwarzer, Asbestos Testimony].
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Appendix C: Mass Torts Problems & Proposals
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