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Described as an “elephantine mass” that “defies customary judicial administration,” asbestos litigation remains the longest-running mass tort in U.S. history. Ultimately, the efforts made to resolve the ever-expanding asbestos litigation failed. In 1997, in Amchem Products, Inc. v. Windsor, the United States Supreme Court struck down the use of a class action settlement to achieve a global resolution of all asbestos claims — those pending at the time and those of future claimants. In the wake of Amchem, dozens of asbestos defendants sought bankruptcy protection while plaintiffs continued to file claims in state and federal courts. Between 1988 and 2010, a United States Government Accountability Office (GAO) analysis of the approximately 100 bankruptcy trusts’ payment data showed that the asbestos trusts had paid about $17.5 billion to 3.3 million claimants. Since then, much has happened but basic problems remain. The patchwork system of plaintiffs claiming in federal and state courts, as well as the separate administrative claiming before bankruptcy trusts, raises complicated issues about how injured persons can be properly compensated while assuring that defendants are not assessed damages that are not warranted, and how to protect the trusts from fraud and preserve trust funds for future meritorious claimants.The American Bar Association Torts and Insurance Section appointed a Task Force to look into issues currently confronting asbestos stakeholders. I was appointed its Reporter. This Article focuses on how the Task Force went about its work and developed a record. It then presents some thoughts on how my service brought together my long-standing academic interest in how mass torts ought to be resolved and the realities of the current asbestos litigation. What I have learned thus far has led me to question my once zealous advocacy of aggregated mass tort claims resolution.When I served as Chairperson of the Dalkon Shield Claimant’s Trust, I wrote articles that focused on how the Trust resolved hundreds of thousands of claims. It is fair to say that I was a fan of aggregate resolution of mass torts. In my view, the use of multidistrict litigation, class actions, other aggregation tools, and even Chapter 11 reorganization provided fair and efficient vehicles for the resolution of mass torts. Indeed, the Dalkon Shield Board of Trustees expressly adopted motivating principles as they began to put meat on the bones of the CRF. First, and foremost, among these principles, was to “[t]reat all claimants fairly and equally, always focusing on the best interests of claimants collectively instead of on the interests of a particular claimant or group of claimants.” Another principle harkened back to the first: “Prefer settlement and prompt payment of claims over arbitration and litigation.” Rereading these principles in light of the compelling testimony of two of the Task Force witnesses challenged my weltanschauung about mass tort dispute resolution. Judge Robreno’s and Judge Davidson’s testimony about disaggregating cases into their core components, “letting lawyers be lawyers,” and getting cases ready for trial instead of obsessing about global or individual settlements is what led to the successful resolution of the cases before them.Moreover, Judge Robreno’s testimony suggests that attempts at aggregated resolution of the “elephantine mass” were all failures, except for the MDL itself, which has largely wrapped up its work. Rather, as Judges Robreno and Davidson testified, the disaggregation of asbestos claims allowed asbestos cases to be prepared for trial (or settlement discussions) more expeditiously. Now, dying plaintiffs can get a shot at a prompt trial date rather than having to wait out a global settlement. Perhaps tending to the needs of particular plaintiffs is the best way to protect the interests of the whole in mass tort litigation after all.

For the last several decades, federal and state courts, with varying degrees of cooperation from the parties and lawyers involved, have developed ways of managing the complex mass tort cases confronting them. A key development was the emergence of the idea of using consolidation techniques to achieve global peace in the resolution of these often seemingly intractable cases. In the wake of the Supreme Court's decisions in Amchem and Ortiz, however, the use of class actions to achieve global peace became problematic. Meanwhile, Chapter 11 proceedings under the bankruptcy laws emerged as a vehicle for achieving global peace. Especially after Amchem, it appears that the use of Chapter 11, despite the problems raised for a defendant corporation, may be the best tool for achieving global peace. This working paper provides a brief history of the three leading mass tort bankruptcy cases: the Johns Manville Chapter 11 case involving asbestos personal injury claims, the A.H. Robins Chapter 11 case involving Dalkon Shield claims, and the Dow Corning Chapter 11 case involving breast implant claims. The purpose of the review of these cases is to highlight the important practical and doctrinal issues raised by the use of Chapter 11 as a vehicle for resolving mass tort litigation.

The September 11 attack on the World Trade Tower and the Pentagon left thousands of victims in its wake. Seemingly quite laudably, Congress almost immediately enacted a bill that set up a Victim's Compensation Fund ("VCF") that held out the potential for quickly and reasonably compensating those injured in the disaster as well as the families of those who were killed. This paper describes the VCF, and discusses some of the problems that the Special Master of the VCF confronted while preparing the rules for how the victims would be compensated. This discussion then leads into the much larger question of the extent to which Congress ought to be involved in the resolution of personal injury and other state based claims. Traditionally, of course, our legal system generally has left the resolution of personal injury claims to state law. Additionally, the vast majority, at least until the rise of mass tort litigation, of such cases were resolved in state courts. It would seem that United States Supreme Court's recent federalism cases would support federal abstinence in this area. To the contrary, Congress, generally led by Republicans, have enacted and proposed legislation that have the effect of stripping state courts of their traditional role in the resolution of tort and other state law based cases. Thus, the paper raises the question whether the VCF is the camel's nose under the tent. It is notable that at the same time that Congress created the VCF, it also provided a massive bailout for the airline industry. Is the legislative climate such that we can expect future enactment of legislation providing, for example, compensation for victims of exposure to asbestos, while limiting the liability of the corporations and entities involved in the ever-expanding asbestos litigation? What are the federalism implications of bills like the Class Action Fairness Act that would allow defendants to remove virtually any class action from state court to federal court? The paper concludes that the ought to be a reasonable balance. There always has been concurrent federal and state jurisdiction over a large number of cases. As a practical matter, when complex litigation of a national scope threatens the ability of the state and federal court's ability to provide reasonable compensation within a reasonable time frame, the federal courts should play an important role, and Congress ought to provide the courts with the tools necessary to resolve the litigation and achieve global peace if possible. Nonetheless, it is important to consider that federal resolution, whether in federal courts or some administrative scheme like the VCF, violates important principles of federalism, and therefore ought not become the general rule. For example, given the intractability of the asbestos litigation and the numerous bankruptcies it has spawned, it may well be appropriate for Congress to enact appropriate legislation. The VCF is a response to a disaster, though localized, that is national in nature. On the other hand, bills like the Class Action Fairness Act are suspect because they simply evidence distrust of state courts' ability to fairly resolve cases.