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ARONSON: Two Recent Developments In Tobacco And Asbestos Cases Show How Mass Tort Litigation Should, And Should Not, Be Done 

In the asbestos case, the event was extraordinary: a request to the U.S. Supreme Court to stop a massive trial from going forward. On Monday, Chief Justice Rehnquist rebuffed the petition. As a result, West Virginia will now play host to as unwieldy a proceeding as has ever been attempted in an American court. . .

Among several major differences between the cases, two - one involving Stage I, the other involving Stage II - stand out.

A Major Difference At Stage I: The Asbestos Trial Is Far More Complex

The tobacco cases involve a single product under a single set of circumstances - prolonged exposure in the confined space of an airplane cabin. And the tobacco defendants all had well-defined shares of the market. . .

At bottom, the difference between [the Tobacco And Asbestos Cases] lies in the motives of the parties. The tobacco companies think they can win some of these cases at trial, and they have the track record to prove it. They've made concessions on issues that they think are losers, and have preserved for trial those issues where they think they can prevail. That makes a great deal of sense: making implausible, losing arguments can hurt a party's credibility in court, so sometimes it's best to just concede them. In the asbestos cases, in contrast, no one actually believes these cases can be tried... [T]he plaintiffs plainly don't. [T]hey have simply hoped that the threat of trial will force defendants to settle, or that an actual, wooly-mammoth proceeding - it's hard to call it a trial - will somehow coerce a deal. . .

The Florida tobacco case is a model of how mass tort litigation can proceed rationally and logically, with due process and fairness to both sides. But by that standard, the West Virginia asbestos juggernaut is a mockery.

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