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Abstract
As a Delaware Superior Court Judge formerly assigned to the asbestos docket, this author learned firsth and about the difficulties inherent in accounting for bankruptcy trust recoveries in asbestos personal injury lawsuits and the abusive practices facilitated by the lack of any coordination between the two compensation systems. The recent bankruptcy court decision in In re Garlock reveals just how widespread the tactics of strategic non-disclosure and trust submission timing have become. This Article explores the need for coordination between the bankruptcy trust and the civil tort systems and calls upon trial judges to institute procedures to identify the scope and real-world impact of fraudulent asbestos claiming upon the integrity of the judicial process.
Introduction
Before my retirement as a trial judge on the Superior Court of the State of Delaware, I was assigned to our state's growing asbestos litigation docket. In 1 that capacity, the circumstances of one particular asbestos wrongful death case over which I was to preside2 unexpectedly thrust me at the center of one of the most controversial issues that has ever dominated asbestos litigation-the lack of any nexus, interface, or transparency between the two systems that currently exist for providing compensation to victims of asbestos exposure. Plaintiffs today can seek relief in two ways: through the filing of a tort action against solvent manufacturers of asbestos-containing products and by filing claims with any of more than sixty asbestos bankruptcy trusts that have been established by the asbestos thermal insulation manufacturers who once played a central role in the asbestos industry, and more recently, by suppliers of encapsulated asbestos products.3 As these manufacturers and suppliers have seen their assets exhausted by the sheer number and magnitude of the judgments against them, they have been forced to file bankruptcy. The trusts established under section 524(g) of the Bankruptcy Code4 have become part of the overall framework and a significant source of compensation for asbestos personal injury plaintiffs, representing a $30 billion-plus total fund.5 The gap between the trust and tort systems and the extent to which plaintiffs or their attorneys have taken advantage of it, has been the subject of both federal and state legislative reform efforts,6 as well as countless scholarly publications and articles.7
In re Asbestos Litigation
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