The evolution of asbestos litigation from the early 1970s to the present has become the source of much analysis. One commentator divides this history into several phases: the heroic phase, bureaucratic floundering, adaptation and maturity, search for global settlement, expansion of the number of cases, and legislative reform in a new era. A neglected aspect of the history of asbestos litigation has been the evolution of asbestos bankruptcy trust distribution plans. Since 1982 there have been more than 70 corporations which have filed bankruptcy proceedings because of their exposure to asbestos liability. As these corporations emerge from bankruptcy, their plans of reorganization establish trust distribution plans to pay asbestos claimants. These distribution plans provide a unique window into the evolution of a marketplace for the evaluation of asbestos claims among plaintiffs’ lawyers. Notwithstanding the “maturity”5 of the mass tort, this evolution reveals the historic development of relative values and differentiation among asbestos personal injury claims from the perspective of lawyers who represent plaintiffs. Specifically, plaintiffs’ counsel have voluntarily strengthened qualification criteria and altered the balance of payments for discrete diseases to deal with the scarcity of resources in the bankruptcy trust context.
Francis McGovern, The Evolution of Asbestos Bankruptcy Trust Distribution Plans, 62 N.Y.U. Annual Survey of American Law 163-185 (2006)