Copyright (c) 2000 North Carolina Law Review
North Carolina Law Review
NOTE: The Uncertain Future of Limited Fund Settlement Class Actions in Mass Tort Litigation After Ortiz v. Fibreboard Corp.
78 N.C.L. Rev. 856
Matthew C. Stiegler
When a body possessed of the institutional unflappability of the United States Supreme Court is moved to describe a body of litigation as "elephantine," 1 it is safe to assume the problem is real. The pachyderm that sparked the Court's alarm is asbestos litigation. 2 Asbestos is a fire-resistant insulator that also happens to be one of the most dangerous materials ever introduced into widespread use. 3 By the middle of the next century, as many as 500,000 Americans will have died as a result of asbestos exposure. 4 As a committee of federal judges dramatically reported in 1991, "it is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s." 5
That flood of lawsuits - approximately 250,000 to date - has swollen into a well-documented legal catastrophe on par with its public health predicate. 6 The sheer volume of claims brought by those exposed to asbestos has made it increasingly difficult for courts to provide, as the Federal Rules of Civil Procedure mandate, "the just, speedy, 7 and inexpensive 8 determination of every action." 9 As one trial judge illustrated the problem in a 1990 opinion approving an asbestos class action: "If the Court could somehow close thirty cases a month, it would take six and one-half years to try these cases and there would be pending over 5,000 ...
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