Unobtrusively, but with increasing frequency, some courts are focusing anew on certain forms of asbestos litigation and on certain pivotal issues.1 Despite what the U.S. Supreme Court called an “asbestos-litigation crisis” and urgings for a national dispute-resolution scheme, no congressional response emerged.2 Thus, it was left to the courts to try to manage asbestos dockets swollen with claimants alleging they had asbestosis, lung cancer or mesothelioma. A Rand Institute for Civil Justice study in 2005 observed that, through 2002, approximately 730,000 claims had been filed. A Congressional Budget Office estimate in August 2005 posited that some 322,000 asbestos bodily injury cases were pending in state and federal courts.3
Early asbestos lawsuits targeted producers of asbestos and asbestos-containing products who numbered in the hundreds (in 1982, about 300 such companies). However, as these defendants fell in bankruptcies, “waves” of new lawsuits spread to companies farther removed from direct production, said now to number over 8,500 defendants. One well-known plaintiffs’ lawyer described the litigation as an “endless search for a solvent bystander.”4
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