Full opinion text
MEMORANDUM & ORDER WEINSTEIN, Senior District Judge and BURTON R. LIFLAND, Bankruptcy Judge. Table of Contents I. Introduction.300 II. Facts.301 A. History.301 1. Asbestos Litigation Crisis.301 2. Manville Trust.302 B. Post-1995 Developments.305 1. Proliferation of Asbestos Litigation and Claims.305 2. Functionally Unimpaired Claimants.306 a. Diagnosing Asbestos-Related Disease.308 b. Projecting Future Claims.:.310 e. Compensation Ratios.312 3. Manville Trust. 313 C. Trust Payments to Date.315 III. Law.315 A. Power to Amend the Trust Distribution Process.315 B. Claims by Functionally Unimpaired Claimants.317 IV. Application.319 A. Amendment of the Manville Process.319 1. Changes in the 2002 Trust Distribution Process.319 a. Scheduled Disease Categories and Values.320 b. Evidentiary Requirements.324 c. Pro Rata Share.324 d. Other Changes.325 e. Transition Provisions.326 2. Other Measures.326 B. Criticisms of the 2002 Trust Distribution Process.326 C. Future.331 1. Required Research on National Medical Questions.331 2. Alternative Solutions.335 V. Conclusion.336 I. Introduction The district court for the Eastern District of New York and the bankruptcy court for the Southern District of New York (the “courts”) write to give their imprimatur to the amended Trust Distribution Process (“2002 TDP”) of the Man-ville Personal Injury Settlement Trust (“Manville Trust” or the “Trust”). It is not clear that the courts have the authority to approve or deny approval of these changes as agreed on by the Trust, the Selected Counsel for the Beneficiaries (the “SCB”), and the Legal Representative of Future Claimants (the “Legal Representative”) after consultation with the Special Advisor to the Trust (the “Special Advisor”) and other interested parties. It is apparent nonetheless that the courts have a continuing obligation to ensure that the Trust’s terms and goals are properly effectuated. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y.1990) (“continuing responsibility to implement the terms of the Manville reorganization and to protect the interests of the beneficiaries of the Trust”); Second Amended and Restated Plan of Reorganization for Johns-Manville Corporation Art. X (Nov. 28, 1988) (retention of jurisdiction); Trust Agreements §§ 6.12, 6.13 (same). Periodic required reports submitted by the Trust are followed closely by the courts. They reveal the Trust’s continuing problems. It is appropriate therefore for the courts to evaluate and approve the changes embodied in the 2002 TDP. There is thus currently no need to finally fix the courts’ continuing authority to require future changes in the Trust’s distribution process. The asbestos problem and litigation crisis is “a festering wound on our society that is going to continue for some time.” Transcript of Proceedings on September 4, 2002, at 35 (“Transcript Sept. 4, 2002”). Despite frequent expressions by the courts during the long course of Johns-Manville Corp. and Manville Trust litigation of their hope that some final resolution would be reached, periodic reevaluation has been necessary in order to ensure that administration of trust funds remains effective and equitable in light of changing conditions. Amending the Manville Trust Distribution Process (“TDP”) has been compelled by major developments in asbestos litigation. There has been a dramatic increase in the total and rate of filing of asbestos lawsuits and claims. Particularly noticeable is the involvement of more peripheral players — plaintiffs who are asymptomatic, those less seriously injured, and defendants who were not major manufacturers or distributors of asbestos. In the last several years it became evident that the Manville Trust was threatened by a much higher than projected number of claims. A significant and growing percentage of these claims are brought on the basis of non-malignant asbestos-related conditions, that is for asbestosis or other less serious clinical or physical manifestations of asbestos exposure rather than for mesothelioma, lung cancer, or other cancers. It is expected, based on the best currently available data, that this trend will accelerate. Were the Trust to continue operating under the procedures last established in 1995, there would be a substantial risk that its funds would be insufficient to provide decent compensation for all valid claims. It was widely believed that the TDP, even as modified in 1995, no longer treated all claimants equitably — a primary goal of the Trust. See In re Joint E. & S. Dists. Asbestos Litig., 2001 WL 1464362 (E.D.N.Y.2001). Responding to current concerns expressed by the courts and others, interested parties engaged in extensive and lengthy negotiations. In September 2002, the Trust, the SCB, and the Legal Representative, after consultation with the Special Advisor and interested persons, announced that they had agreed to significant amendments to the Trust Distribution Process, in the form of the 2002 TDP. All interested parties were invited to submit written and oral comments to the courts. After full hearings, the courts approve the 2002 TDP. It is a substantial step forward. It accords with developing tort asbestos litigation. While further changes may be necessary, the 2002 TDP is a significant improvement over the previous distribution processes. II. Facts A. History The genesis and history of the asbestos litigation crisis and of the Manville Trust have been set out at length. See, e.g., In re Joint E. & S. Dists. Asbestos Litig., 129 B.R. 710 (E. & S.D.N.Y.1991) (“Findley I”); In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473 (E. & S.D.N.Y. 1995). 1. Asbestos Litigation Crisis Asbestos in its various forms are fibrous minerals, abundant, relatively inexpensive to mine and process, and versatile. Because of its strength, durability, and fire-retardant capabilities, asbestos has been used extensively in industrial and other settings for thousands of years. See Findley I, 129 B.R. 710, 734 (E. & S.D.N.Y. 1991); Stephen J. Carroll et al., RAND Institute for Civil Justice, Asbestos Litigation Costs and Compensation: An Interim Report 13 (2002) (“RAND Report 2002”); Barbara J. Peters and George A. Peters, Sourcebook on Asbestos Diseases: Medical, Legal and Engineering Aspects (1998). Unfortunately, however, asbestos is also dangerous. Workplace exposure to asbestos fibers risks injury, disease, and mortality. See Irving J. Selikoff et ah, The Occurrence of Asbestosis Among Insulation Workers in the United States, Annals N.Y. Acad. Sci., Vol. 132, 1965, at 139-55 (epidemiological study on disease caused by asbestos exposure). Assessments of risks and benefits varies; there has been substantial reduction of efficacy after abandonment of asbestos in the seventies in such matters as auto brake linings and protection of skyscrapers against cataclysmic fire. Rather than improving protections to workers, this country has sought to close the books on asbestos use. The injuries caused before adequate attention to worker-danger remain to be compensated. Those injured by asbestos — often not satisfactorily recompensed by worker compensation plans — have been forced to turn to the court system, relying primarily on suits against producers and commercial users of products containing asbestos for deterrence and for reimbursement for the injuries suffered as a result of unwitting exposure. See generally RAND Report 2002, supra. The major dangers of asbestos were known in this country as early as the 1930s. See, e.g., Irving J. Selikoff & Morris Greenberg, A Landmark Case in Asbestosis, 265(7) J. Am. Med. Assoc. 898 (1991). Yet neither medicine, industry nor the law protected workers adequately. See, e.g., Clean Air Act, 42 U.S.C. §§ 7401-31, 7412 (2002) (federal government first acted to regulate asbestos by designating it as a hazardous air pollutant in the Clean Air Act of 1970); Mark A. Behrens, Some Proposals for Courts Interested in Helping Sick Claimants and Solving Serious Problems in Asbestos Litigation, 54 Baylor L.Rev. 331, 336 n. 25 (2002); Edmund J. Ferdinand, III, Asbes tos Revisited, 5 Tul. Envtl. L.J. 581, 588 (1992) (state legislatures slow to act, manipulated by the asbestos industry); Roger Parloff, The $200 Billion Miscarriage of Justice, Fortune Magazine, March 4, 2002, available at 2002 WL 2190334 (labor unions did not act aggressively to protect their at-risk members until the 1970s). The courts were, and largely remain, the only viable agency for redress. The resulting volume of asbestos claims threatened to overwhelm our court system. Despite hopes and expectations to the contrary, the flood of claims continues unabated. Plaintiffs’ claims advance like a perpetually “unrolling carpet. At any moment ... some are filed, some are resolved and some are yet to come.” Record at 31, Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (No. 97-1704) (Oral argument of Elihu In-selbuch, Esq. on behalf of respondents). The problems inherent in leaving the asbestos fiasco to be dealt with under general tort law through the courts have been the subject of extensive critical discussion. See, e.g., Behrens, supra, at 335, 342-44; Griffin B. Bell, Asbestos Litigation and Judicial Leadership: The Courts’ Duty to Help Solve the Asbestos Litigation Crisis, Briefly: Perspectives on Legislation, Regulation, and Litigation, National Legal Center for the Public Interest, Vol. 6, No. 6, June 2002; Lester Brickman, Asbestos Litigation: Malignancy in the Courts?, Civil Justice Forum, No. 40, August 2002; James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, and Medical Monitoring, 53 S.C. L.Rev. 815 (2002); Deborah R. Hensler, As Time Goes By: Asbestos Litigation After Amchem and Ortiz, 80 Tex. L.Rev. 1899 (2002); Samuel Issacha-roff, “Shocked”: Mass Torts and Aggregate Asbestos Litigation After Amchem and Ortiz, 80 Tex. L.Rev.1925 (2002); Mark A. Behrens & Monica G. Parham, Stewardship for the Sick: Preserving Assets for Asbestos Victims Through Inactive Docket Programs, 33 Tex. Tech L.Rev. 1 (2001); Paul F. Rothstein, What Courts Can Do in the Face of the Never-Ending Asbestos Crisis, 71 Miss. L.J. 1 (2001); Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541 (1992); Parloff, supra. 2. Manville Trust The Manville Trust was one of the earlier manifestations of the forthcoming asbestos litigation crisis. In August 1982, the Johns-Manville Corporation (now known as the Manville Corporation) (“Manville”) filed for Chapter 11 bankruptcy. It faced “the mammoth problem of uncontrolled proliferation of asbestos health suits brought against it because of its substantial use for many years of products containing asbestos which injured those who came into contact with the dust of this lethal substance.” In re Johns-Manville Corp., 36 B.R. 727, 729 (Bankr. S.D.N.Y.1984); see also Mark D. Plevin & Paul W. Kalish, Where Are They Now? A History of the Companies That Have Sought Bankruptcy Protection Due to Asbestos Claims, Mealey’s Asbestos Bankruptcy Rep., Aug. 2001, at 27 (Manville second major asbestos defendant to take this step). In 1986, following extended proceedings in “these huge, complex, unparalleled reorganization proceedings,” the parties presented a largely consensual reorganization plan to the bankruptcy court for confirmation. In re Johns-Manville Corp., 68 B.R. 618, 620 (Bankr.S.D.N.Y.1986). The plan involved the creation of two trusts, one to resolve claims brought by victims of asbestos-related disease, the Manville Personal Injury Settlement Trust (the “Manville Trust” or “Trust”), and the other to resolve asbestos-related property claims. See id. at 621-22. Manville was to fund the Trust for at least 30 years. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y.1990). The plan was ultimately approved over objections. See In re Johns-Manville Corp., 68 B.R. 618, 621-22 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom., Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988). An injunction required all claimants seeking compensation for existing and future asbestos health claims caused by exposure to Manville products to proceed solely against the Trust; Manville and its insurers were immunized. See id. at 624-28. The Trust began evaluating and paying claims under its original operating procedures in 1989. By then claimants had been stayed from receiving compensation for some seven years It quickly became obvious that the Trust’s funds were insufficient because of the higher than projected number of claims, rate of filing, and average liquidated value. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y.1990); In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 479 (E. & S.D.N.Y.1995). By the spring of 1990, the Trust was unable to meet its current and short-term obligations. Stays on all payments to claimants and all proceedings against the Trust were consequently ordered by the courts until the Trust could be restructured. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. at 652, 687-89 (Appendices F, G). A Special Master, Marvin E. Frankel, was appointed to assess the financial status of the Trust. After holding hearings and receiving extensive submissions, he concluded that the Trust was “deeply insolvent” and that there was a “substantial risk that payments for ... asbestos related claims ... [would] be in jeopardy.” Id. at 654, 661-68 (Appendix B). In November 1990 a class action complaint and a proposed stipulation of settlement were filed. See id. at 654. The court certified the suit as a mandatory non-opt out class action under Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure. The class consisted of “all beneficiaries each of whom has or will have a claim either for death or personal injury caused by exposure to asbestos, or a claim for warranty, guarantee, indemnification or contribution arising from an obligation of the Trust for the payment of a death or personal injury claim.” Findley I, 129 B.R. at 776. To ensure that all present and future claimants received some payment, the court approved the settlement agreed on by the parties. See id. The court of appeals approved the use of a non-opt out class action, but remanded for the organization of subclasses. See generally In re Joint E. & S. Dists. Asbestos Litig., 982 F.2d 721 (2d Cir.1992) (“Findley II”), modified on reh’g, 993 F.2d 7 (2d Cir.1993) (“Findley III”). On remand, the courts certified six subclasses — Codefendant Manufacturers, Manville Distributors, MacArthur, Present Claimants, Future Claimants, and Claimants with Pre-November 19, 1990 Settlements and Judgements. They appointed subclass representatives and approved counsel. See In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 488-89 (E. & S.D.N.Y.1995). After extensive negotiations the parties filed a stipulation of settlement in July 1994 (the “Settlement”). See id. at 492. In January 1995, the courts re-certified the class and subclasses and approved the amended Settlement. See id. at 511, affd in primary part, 78 F.3d 764 (2d Cir.1996). Under the terms of the 1995 Settlement the rights and duties of substantially all class members and of the Trust were governed by a new Trust Distribution Process (“1995 TDP”). In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. at 493; 1995 TDP, attached as Addendum A to id. at 580-601. The goal of the Trust remained “to treat all claimants equitably” despite the limited fund available to the Trust and the Trust’s deep insolvency and consequent inability to pay all Beneficiaries in full. 1995 TDP, supra, section A. In considering the viability of the 1995 TDP it was necessary to project future claims and future value of the Trust’s assets. Independent estimates of future claims through 2049 were undertaken by the Trust-appointed Resource Planning Corporation and a committee appointed by the courts pursuant to Rule 706 of the Federal Rules of Evidence. In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. at 490-91. The 1995 TDP was approved on the basis of these sets of projections and the Trust’s experience in settling claims through the use of such Claims Resolution Procedure factors as the industries and occupations from which the Trust had previously received claims, the division of claims between malignancies and non-malignancies, and the value of asbestos claims and settlements in the United States tort system. The 1995 TDP provided that a claimant would be paid a pro rata, or equal percentage, share of his or her claim’s liquidated value. In order to minimize the Trust’s litigation and operating expenses and maximize the assets of the Trust available to pay compensation to claimants, the 1995 TDP almost completely removed the Trust as an active party from the tort system. It established a schedule of asbestos-related disease categories and values to enable most claims to be resolved quickly. Seven Scheduled Disease Categories were established: Bilateral Pleural Disease, Nondis-abling Bilateral Interstitial Lung Disease, Disabling Bilateral Interstitial Lung Disease, Other Cancers, Lung Cancers (One), Lung Cancers (Two), and Malignant Meso-thelioma. If a claim met the criteria for one of the categories, the claimant would be offered the Scheduled Value assigned to that category. The right to elect individual claim evaluation was retained. The projections on which the 1995 TDP was based were believed to be more reliable and more comprehensive than the predictions available at the time of the Manville bankruptcy proceedings. Based on extensive analyses of the best data available at the time of the 1995 Settlement, it was expected that the New TDP would allow all Trust Beneficiaries to receive some, approximately equivalent, compensation for their claims. In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 481-84 (E. & S.D.N.Y.1995). The projections were, however, necessarily based on current information. If that information were to change substantially, the projections would no longer be accurate. It was recognized even while the 1995 TDP was being negotiated that these calculations were highly imperfect: “The settling parties acknowledge that there is inherent uncertainty in these predictions and that there is a possibility that the number of claims actually received may fall outside any projected range.” Id. at 490. Estimations of future Manville Trust claims have been consistently too low. See Transcript of Proceedings on December 13, 2001, at 45 (statement of Elihu Insel-buch, Selected Counsel for the Beneficiaries) (“Every time projections have been made they have been wrong and they have always been wrong in one direction. They have always been too low.”). Provisions were made to allow adjustments to the TDP if, as has proven to be the case, the number of future claims was higher than projected. The pro rata percentage of the claims to be paid is set by the Trust in conjunction with the SCB, the Legal Representative, and the Special Advisor (the “Authorized Parties”). The 1995 TDP mandated that this percentage be periodically reevaluated to determine whether it should be increased or decreased on the basis of the Trust’s assets and projected liabilities. In addition the 1995 TDP allowed the Trust, with the agreement of the SCB and the Legal Representative and after consultation with the Special Advisor, to amend the provisions of the TDP governing the “Scheduled Diseases, Categorization Criteria, and Scheduled Values ... and the Maximum Values” when necessary or desirable in light of changing conditions. 1995 TDP, supra, section K.l. For a more comprehensive discussion of the operation of the 1995 TDP, see In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 489-513 (E. & S.D.N.Y.1995). B. Post 1995 Developments 1. Proliferation of Asbestos Litigation and Claims Despite the end of most industrial use in this country of asbestos some thirty years ago, the total number of asbestos lawsuits and claims against asbestos trusts and the rate at which they are being filed have increased rapidly in recent years. Claims for compensation for asbestos-related injuries have already cost businesses over 50 billion dollars through the end of 2000. It has been estimated that the cost of such claims to business will ultimately reach at least $200 billion. RAND Report 2002, supra, at 78 (as much as $210 billion); see also Bell, supra, at 4, n. 13 (up to $275 billion); Joseph E. Stiglitz et al., The Impact of Asbestos Liabilities on Workers in Bankrupt Firms 3 (American Insurance Association, 2002) (Asbestos bankruptcies have led to the loss of 52,000-60,000 jobs, with each displaced worker losing $25,000 to $50,000 in wages over his or her career and roughly $8300 in pension losses). At least 60 companies have been driven into bankruptcy primarily by asbestos claims, with the pace of bankruptcy filings accelerating markedly in recent years. See RAND Report 2002, supra, at 71, 75; Stiglitz et al., supra, at 3, 10 (estimating 61 companies). There is a strong well founded fear that much of the money available will run out before all those who have and are likely to file asbestos claims under existing tort law can be compensated. See RAND Report 2002, supra, at 3. The current acceleration has multiple inter-connected causes. Recent developments in electronic filing and other technology permit plaintiffs’ lawyers to file multiple claims at almost no cost, increasing the efficiency of their fee generation. See Transcript Sept. 24, 2002, supra, at 34-35; see also Manville Personal Injury Settlement Trust, Third Quarter 2002. Fee revenues from earlier asbestos cases have provided substantial capital, allowing plaintiffs’ lawyers aggressively to advertise widely, to conduct mass screenings of potential claimants, and to bring in more peripheral players. See RAND Report 2002, supra, at 23, 31. Defendants are no longer confined to a core group of companies who processed asbestos or used it extensively. Increasingly claimants’ lawyers have turned to other companies in pursuit of solvent defendants. They now include over 6,000 companies in virtually every type of industry in the United States. RAND Report 2002, supra, at 49-50. Increasing numbers of traditional asbestos defendants have filed for bankruptcy. Id. Defendants today include industries with little asbestos connection, such as automobile manufacturers, who used asbestos in brake linings. See, e.g., Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir.1993); Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151 (6th Cir.1981); United States v. Midwest Suspension and Brake, 824 F.Supp. 713 (E.D.Mich.1993); In re Tire Workers Asbestos Litig., 1991 WL 195557 (E.D.Pa. 1991); Covington v. Abex Corp., 1990 WL 204688 (D.D.C.1990); DiSantis v. Abex Corp., 1989 WL 150548 (E.D.Pa.1989); Lowie v. Raymark Industries, 676 F.Supp. 1214 (S.D.Ga.1987). Claimants are no longer primarily those who are seriously ill and dying, but have expanded to the exposed asymptomatic and those with less serious non-cancerous conditions. See RAND Report 2002, supra, at 19-21. Plaintiffs’ lawyers have reached out to these new groups of asbestos plaintiffs through the use of mass media advertising and mass screening programs where exposed workers are X-rayed and diagnosed by what are said to be pro-plaintiff B-Readers. See, e.g., Bell, supra, at 9, 34-37. Federal Judge Charles R. Weiner, the Multidistrict Litigation (“MDL”) judge for all federal court asbestos cases, has summarized recent developments in the cases before him: Since the original assignment of the matter in July, 1991, the number of cases has grown to approximately 105,-000. We have closed over 75,000 cases which represents more than 9,900,000 claims.... The new defendants are not necessarily manufacturers, distributors, or installers of asbestos products but are peripherally involved. With 20 to 100 or more defendants named in every case, and frequently with more than one plaintiff, this translates into a myriad of new claims. From the onset, we have given priority to the claims of the very sick and to the victims with malignancies. Group settlements were and are critical to the movement of these cases. We have attempted to establish registries or deferred lists of cases to husband the resources that are available in order to protect future plaintiffs who may yet become victims.... Since the inception of the MDL consolidation, we have worked with all of the attorneys to encourage them to concentrate on the cases which involve malignancies and severe asbestosis claimants, and to defer the claims of those who at present have no evidence of impairment. Many of the attorneys have followed this path.... We have been able to close approximately 60% of the claims and the remaining number of cases is in the area of 30,000. Agreements to close the cases have included both federal, state, and unfiled cases which grew out of a waiver of the statute of limitations by all the parties. Letter from Judge Charles R. Weiner (Oct. 15, 2002), filed and docketed in In re Joint E. & S. Districts Asbestos Litig. (No. 90-3973) (E. & S.D.N.Y.) (“Judge Weiner Letter”). 2. Functionally Unimpaired Claimants A characterizing feature of the recent acceleration in asbestos litigation is the number of claims being filed by plaintiffs who are functionally unimpaired. From two-thirds up to 90% of all current claimants fall into this category. See RAND Report 2002, supra, at 20. Exposure to asbestos and inhalation of asbestos fibers can lead to a variety of medical conditions. These conditions range from physiological changes detectable only through clinical testing to nonmalignant but life-impairing diseases to fatal malignancies, the most serious of which is mesothelioma. Unimpaired claimants generally are at the former end of the spectrum. Although diagnostic standards for these non-malignant, less serious asbestos-related conditions are more subjective than those for mesothelioma, other malignancies, or asbestosis, unimpaired claimants can be said to show some evidence of an asbestos-related condition. For example, a chest X-ray may show pleural thickening or pleural plaques. Pleural plaques are discrete lesions on the outer layer of the pleurae, the double membrane that surrounds the lung. Pleural thickening, also known as diffuse pleural fibrosis, is a more diffuse thickening of the pleural tissue surrounding the lung. See Raymond L. Murphy, Jr. et al., American Thoracic Society, The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 Am. Rev. Respiratory Disease 363, 363-64 (1986); Doll & Peto, supra, at 2; Gunnar Hillerdal, Pleural Lesion and the ILO Classification: The Need for a Revision, 19 Am. J. Indus. Med. 125, 129 (1991). For additional discussion of the health hazards and injuries associated with the use of asbestos, see Findley I, 129 B.R. 710 (E. & S.D.N.Y.1991). Claimants demonstrating only 'pleural plaques or pleural thickening are not generally affected in their daily lives. See Bell, supra, at 6 (citing Richard Doll & Julian Peto, Asbestos: Effects on Health of Exposure to Asbestos 2 (1985); Victor Roggli et al., Pathology of Asbestos-Associated Diseases 176 (1992)). In most cases, it is unlikely that they would even know of their condition in the absence of some form of testing. See Letter from Manville Trustees to the courts, at 4 (Dec. 5, 2001) (“[A] large share of the Trust’s claimants now have ‘injuries’ which are imperceptible, even to themselves, without the aid of X-ray or other imaging technology.”); see also Bell, supra, at 10. These claimants are, nevertheless, filing lawsuits and claims with asbestos bankruptcy trusts in increasing numbers. The definition of impairment, and therefore the identification of the individuals who fall into this category, is not settled. Compare RAND Report 2002, supra, at vi (“Claimants are functionally unimpaired [if] ... their asbestos exposure has not so far affected their ability to perform activities of daily life.”), with Schuck, supra, at 547 (“Impairment is usually defined in terms of a combination of chest x-ray and pulmonary function (breathing test) results.”). Unimpaired claimants have been infrequently identified as a discrete class for purposes of record-keeping; statistics are generally kept in terms of some other more readily identifiable division, such as malignant and non-malignant claimants. Although the studies purporting to identify the percentage of unimpaired claimants have been criticized, it is not contested that a large and growing proportion of claims are made by individuals who are less seriously affected. See RAND Report 2002, supra, at 44 (“It is clear that the growth in the annual number of claims observed ... is almost entirely due to increases in the numbers of nonmalignant claims entering the system.”); Stiglitz et al., supra, at 8; see also Behrens & Par-ham, supra, at 4 (“The substantial increase in the number of new asbestos claims does not correlate with either an increase in the number of individuals exposed to products containing asbestos, or with an increased prevalence in asbestos related diseases.”). Possible motives for the filing of these claims include fear on the part of claimants that they will be barred by the applicable statute of limitations should critical symptoms occur in the future and that no funds will be left to compensate them if they do not file when they first become aware of their asbestos-related condition and later develop a more serious disease. See Beh-rens, supra, at 343-44. The possibility of obtaining money promptly provides an incentive for lawyers and claimants to seek out and file these types of minimal claims. See generally Parloff, supra (describing large verdicts won by less seriously injured asbestos plaintiffs). Regardless of why the claims are filed, the dramatic increase in less seriously injured claimants has focused attention on several particular issues in asbestos: diagnosis of asbestos-related conditions, projecting future claims, and compensation ratios among types of illnesses. a. Diagnosing Asbestos-related Disease Appropriate methods of screening for and identifying asbestos-related diseases still are unsettled. The most reliable diagnoses of asbestos-related impairment of the lungs rely on a combination of chest X-rays and pulmonary function testing, physical examinations, and review of occupational and medical history. See, e.g., American Thoracic Society, The Diagnosis of Nonmalignant Diseases (1986) (official statement); American Medical Association, The Respiratory System, Guides to the Evaluation of Permanent Impairment, Ch. 5 (5th ed.2000); Bell, supra, at 34. Chest X-rays have been widely accepted as one of the most valuable tools in identifying asbestos-related conditions. See Murphy et al., supra. They are evaluated on a scale developed by the International Labour Office. International Labour Office, Revised Classification of Radio-graphs of Pneumoconiosis (1980); see also William S. Cole, M.D., The Classification of Radiographs of Pneumoconiosis, in A Study Syllabus for Classification of Radi-ographs of Pneumoconioses (W.J. Tudden-ham, M.D. ed„ NIOSH April 1983) (a study guide for the application of the ILO radiographic classification system; prepared by the Division of Respiratory Disease Studies, NIOSH Centers for Disease Control and Prevention, Morgantown, W.V.). The National Institute for Occupational Safety and Health (“NIOSH”) of the Centers for Disease Control and Prevention (“CDC”) awards B-Reader approvals to physicians who meet a specified level of proficiency in classifying chest X-rays according to the ILO scale; these B-Readers must be re-certified at 4 year intervals. Chest roentgenograms are graded according to the number of abnormalities in a given area of the chest film. An 0 corresponds to no abnormalities, 1 to slight, 2 to moderate, and 3 to "severe. Since this process is to some degree inherently subjective, readers give two classifications, the category that they think most likely and next most likely. The result is a 12 point scale, with results ranging from 0/0 (normal roentgenologic appearance) to 3/3 (severe abnormalities). These results are commonly called ILO readings or ILO X-ray readings. Pulmonary function generally is tested through spirometry, a process of pulmonary measurement in which the individual breathes through a mouthpiece into a machine called a spirometer. See American Thoracic Society, Standardization of Spi-rometry (1994). Both FEV, forced expiratory volume in the first second, and FVC, forced vital capacity or the volume of air that can be maximally forcefully exhaled, are measured. The results are typically reported both as an absolute value and as a predicted percentage of normal. In addition, lung volume can be tested through several different methods by measuring TLC, total lung capacity or the total amount of air in the lungs after a full inspiration, and RV, residual volume or the amount of air remaining in the lungs after a full exhalation. The American Medical Association lists criteria for evaluating permanent respiratory impairment according to these measurements, including the lower limits of normal pulmonary function. American Medical Association, supra, at 107. An occupational and medical history is also important in diagnosing an individual with an asbestos-related condition. Impairment of the lungs, as diagnosed through X-rays and pulmonary function testing, can be caused by a variety of factors. Pleural plaques and pleural thickening as observed in functionally unimpaired individuals resemble lung inflammations caused by a wide variety of other airborne particles. See Brickman, supra, at 4; Parloff, supra. Claimants today are diagnosed largely through plaintiff-lawyer arranged mass screening programs targeting possibly asbestos-exposed workers and attraction of potential claimants through the mass media. The programs rely almost solely on chest X-rays and pro-plaintiff readers to identify the injured. See generally Bell, supra, at 35-36. There is a significant amount of controversy both over the reliability of mass screening programs in particular and over the use and accuracy of X-rays in general in identifying asbestos-related diseases. Cf. also In re Diet Drugs, 236 F.Supp.2d 445 (E.D.Pa.2002) (finding certifications of mitral valve regurgitation by two doctors submitted to trust by two related firms medically unreasonable). A number of studies have shown that some plaintiffs’ doctors consistently over-diagnose asbestos-related conditions. A 1990 study published in the Journal of Occupational Medicine found that only 16 of 439 claimants that filed lawsuits as a result of a 1986 mass screening of tire workers at their worksite demonstrated chest abnormalities consistent with asbestos exposure. R.B. Rerger et al., Cases of Alleged Asbestos-Related Disease: A Ra-diologic Re-Evaluation, 32 J. Occupational Med. 1088 (1990). Neutral academies retained to conduct audits by the Manville Trust found that two Trust physicians disagreed with plaintiff doctors and found either no disease or a less severe disease than claimed in approximately 41% of the audited eases. A.R. Localio et al., Biostat-ics Section, Dept, of Health Evaluation Services, Penn. State Univ. College of Medicine & Center for Clinical Epidemiology and Biostatics, The Manville Personal Injury Settlement Trust X-Ray Audit: An Assessment of the Identification of the Underlying Disease Process Implications for Medical Review 'by Certified B-Readers (1998). On-going audits conducted by the Trust concluded that in the first quarter of 1998 the “failure rate” of the ten doctors who provided X-ray interpretations for 87% of the claims received by the Trust was 59%. Memorandum from Patricia Houser to Manville Trustees (May 13, 1998). See generally Bell, supra, at 13-16. It should be pointed out that the B-Readers’ reports of those criticizing plaintiffs’ experts were sometimes inconsistent among themselves and furnished no gold standard for diagnoses. The process is intrinsically subjective at the margins. Probable over-diagnosis is related to a larger problem concerning the accuracy of X-rays in screening for asbestos-related injury. See, e.g., Parloff, supra (“Incipient or marginal asbestosis, as picked up on an X-ray, bears at least a superficial resemblance to more than 130 other lung inflammations, including scores caused by various airborne particles.”). It is particularly difficult to diagnose the less severe manifestations of an asbestos-related injury on the basis of an X-ray alone. See Murphy et al., supra (“The problem is that the interpretation of the lesser degrees of abnormality on [the ILO] scale is subjective and that numerous causes of such roentge-nologic shadowing other than asbestosis exist. In the presence of marked diffuse pleural thickening, it is difficult to diagnose or grade the severity of interstitial fibrosis.”). A medical surveillance program using spiral CT scanning technology has been proposed as one alternative to the current mass X-ray screening procedures. See Steven Kazan, Memorandum of Interested Attorney (Dec. 7, 2001) (“Kazan Memo, of Dec. 7, 2001”), at 6-8. The specifics of such a program have not yet been completely detailed, including who would be responsible for running it, but the concept can be generally sketched. Spiral CT, or computed tomography, scanning involves a computerized assimilation of multiple X-ray images to create a two dimensional cross-sectional image. See Stedman’s Medical Dictionary (27th ed.2000). It can reveal abnormalities in lung tissue that would not be shown by a conventional X-ray. Recent studies have suggested that a well designed program of spiral CT scanning for significantly asbestos-exposed workers could detect lung cancer early enough to possibly permit cure of a substantial percentage of the cases. See Kazan Memo, of Dec. 7, 2001, supra, at 7 (citing Paul Brunetta, Early Detection of Lung Cancer, Mealey’s Asbestos Conference 1999, at 67-73 (1999); Gordon Gamsu, Recent Developments in Spiral CT Scanning, Mealey’s Asbestos Conference 2000, at 107-114 (2000); Claudia I. Henschke et al., Early Lung Cancer Action Project: Initial Findings on Repeat Screening,; Annette McWilliams et al., Combination of Computer-Assisted Sputum Analysis and Low-Dose Spiral CT Scan for Lung Cancer Screening,; Albert Miller & Steven Markowitz, Screening for Early Lung Cancer in Highr-Risk Workers Exposed to Asbestos and Radiation,); Steven Kazan, Memorandum of Interested Attorney (Aug. 30, 2002) (“Kazan Memo, of Aug. 30, 2002”), at 3-4 (citing J.H. Austin et al, CT Screening for Early Stage Lung Cancer, 121 Chest 1725-26 (May 2002); T. Nawa et al., Lung Cancer Screening Using Low-Dose Spiral CT: Results of Baseline and 1-Year Follow-up Studies, 122 Chest 15-20 (July 2002)). Given the lack of current treatment options for mesothelioma and asbestosis, an earlier diagnosis, while allowing earlier compensation, might not make a greater number of cures of the most serious cases possible. See Parloff, supra. There is substantial controversy surrounding the possibility of wide use of CT technology. There may be insufficient data to conclude that CT scanning provides a more accurate method of diagnosing asbestos-related conditions across the board. Substantial questions exist as to whether the use of CT scanning would be efficient and cost-effective. Further study on how best to structure a comprehensive CT screening program is necessary. As discussed below in Section IV.C.l., infra, there are significant gaps in the medical data available concerning the diagnosis of asbestos-related injuries generally. Further exploration and research in this area is needed. b. Projecting Future Claims Calculation of estimates of future asbestos claims remains difficult. The federal government began strictly regulating workplace exposure to asbestos in the 1970s. See Section II.A.1, supra; Findley I, 129 B.R. 710, 737 (E. & S.D.N.Y.1991). These regulations became increasing stringent over time, with most uses of asbestos banned today. See, e.g., 40 C.F.R. § 61.01 (2002) (EPA emission standards for hazardous air pollutants, including asbestos); 29 C.F.R. § 1926.1101 (2002) (OSHA standards on asbestos in construction); 29 C.F.R. § 1915.1001 (2002) (OSHA standards on asbestos in shipyards); 29 C.F.R. § 1910.1001 (2002) (OSHA standards on asbestos in general industry). Some manufacturers, among them Johns-Manville, continued to produce and sell asbestos and products containing asbestos into the 1980s. See Letter of David Austern, general counsel of the Manville Trust, to Julie Davis, Esq. and other interested parties, at 2 (July 24, 2001) (“Austern Letter of July 24, 2001”) (Manville stopped making products containing asbestos in 1983, despite different statements made by the company during bankruptcy proceedings); Issacharoff, supra, at 1925. Given the lengthy latency period for many asbestos-related diseases asbestos litigation can be expected to continue for some decades to come. See, e.g., Issacharoff, supra, at 1925; Manville Personal Injury Settlement Trust Reports, Fourth Quarter 2001. There are two important variables in calculating the number of future claims that can be expected: first, identifying epi-demiologically the number of people who will suffer from diseases related to asbestos exposure in the future, and second, identifying the subset of those injuries that will result in claims. See also Issacharoff, supra, at 1939 (“much turns on the accuracy of projections of future claims”). Future malignancy, and particularly mesothelioma claims can be predicted with a fair amount of accuracy. The effects of asbestos on lung function seem to be related to the quantity and concentration of asbestos fibers to which an individual was exposed, with more serious injury resulting from greater exposure. See Murphy et al., supra (citing several studies); RAND' Report 2002, supra, at 47-48. Mesothelioma and asbestos-related lung cancers are expected to result primarily from the sort of direct occupational exposure that was phased out as a result of increasingly stringent federal regulation. Despite the lengthy latency period for these diseases — 15 to 40 years — the number of mesothelioma and other malignancy claims can reasonably be expected to be declining. See James S. Kakalik et al., RAND Institute for Civil Justice, Variation in Asbestos Litigation Compensation and Expenses (1984), cited in Behrens, supra, at 337, n. 26. While malignancy claims are not yet exhausted, the potential universe of malignancy claims is no longer expanding. Even asbestosis has been described as a “disappearing disease”. See W. Raymond Parkes, Occupational Lung Disorders (3rd ed.1994), quoted in Parloff, supra. The total universe of possible non-malignancy claims, however, is expanding so rapidly that it is difficult currently even to reliably estimate its limits. The rise is apparently due primarily to claims brought by unimpaired claimants. See generally Behrens, supra, at 336, 342-44 (“[T]he recent explosion of filings by unimpaired claimants has been the ‘wild card’ that has caused earlier estimates of the litigation to be so far off the mark.”). First, a lack of data concerning this type of claim makes future projections particularly difficult. See, e.g., Hen-sler, supra, at 1923 (2002) (“We can only dimly perceive what the future of the ‘futures’ will be from the experience of the past few years.”); Issacharoff, supra, at 1939 (“Each of the attempts [to solve the asbestos crisis] thus far failed, or is threatened with failure, because of the inability to control the volume and quality of future claims.”). Not only are these claims arising out of an ever-expanding group of industries not involved directly in the manufacture or distribution of asbestos, there is currently insufficient medical data concerning their diagnosis to predict how many individuals are and will be affected by and diagnosed with such impairment. Even if an accurate prediction of the number of individuals who will suffer future non-malignant asbestos-related injuries could be made, claiming behavior for nonmaiignant as opposed to malignant claims is more susceptible to economic and other non-epidemiological factors, making the number of future nonmaiignant claims extremely difficult to project. A critical factor, for example, is the cost to lawyers of bringing the claims as compared to the fees they can expect to earn. A substantial driving force behind expanding claims is the ease of generating claims through extensive advertising in print, radio, and television and mass X-ray screenings. Costs of processing a claimant’s allegations against many defendants is greatly reduced by electronic multiple filing techniques. Were fee percentages reduced or cost of processing by plaintiffs’ lawyers substantially increased by demanding more expensive demonstrations of disease, claims for nonmalignant disease might plummet. Such an approach would arguably be counter to traditional American policy of reducing barriers to prosecution of valid legal claims. In view of the need to protect relatively blameless defendants and to insure adequate compensation for the more seriously injured, as well as to protect integrity of the process, more stringent medical standards seem warranted. Advertising and the use of technology and large scale operations by lawyers to improve efficiency and provide service to a large community — here those exposed to asbestos, injured and with a recognized substantive cause of action — is generally considered commendable under our capitalistic-entrepreneurial regime and ethical under our professional-legal system. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); American Bar Association Model Rules of Professional Conduct Rule 7.2; N.Y.Code of Professional Responsibility DR 2-101 (McKinney 2001); Stephen Gil-lers & Roy D. Simon, Jr., Regulation of Lawyers: Statutes and Standards 398, 968 (2002 ed.); Richard A. Zitrin & Carol M. Langford, Legal Ethics in the Practice of Law 746-56 (2d ed.2001). c. Compensation Ratios The rise in unimpaired claimants has focused attention on the relative values paid to unimpaired, non-malignant, and malignant claims in the tort system. The ratio of amounts awarded to individuals suffering from asbestosis to amounts awarded to individuals suffering from mesothelioma has changed significantly in recent years. In 1995 that relationship, as reflected by the ratio between the Scheduled Values under the Manville Trust 1995 TDP for Disease Categories 3 (the highest non-malignancy category) and 7 (mesothe-lioma), was approximately 1 to 4. Preliminary research shows the torts and trusts ratios today are between one to thirteen and one to more than 30. See Letter of Mark Peterson (Dec. 13, 2001). When the admittedly low 1 to 4 ratio is magnified by the drastic rise in less seriously injured claimants, the result is an enormously disproportionate allocation of funds to the unimpaired. Claims filed by those who are not, or not yet, functionally impaired reduce the already limited funds available to compensate those who are seriously injured. The risk that funds will be exhausted has been somewhat reduced by what are probably decreasing transaction costs. Transaction costs (including plaintiff and defendant expenses) have reportedly consumed more than half of total spending on asbestos compensation. RAND Report 2002, supra, at 60-61; see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 598, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (“[Tjransaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.” (internal quotation and citation omitted)). As reflected in increased efficiency in claims processing of the Manville Trust, relative transaction costs have come down. Defense counsel fees have been reduced since so many claims are now handled by trusts administratively without resort to litigation. Plaintiff lawyers’ fees remain relatively high except when sharply limited as in the Manville 1995 and 2002 TDPs. Many workers can properly allege that they were exposed to many different manufacturers’ products. The number of suppliers of asbestos to whose products exposure arguably occurred is increased greatly by the transient nature of the work of so many of the claimants. Electronic production of papers for multiple claims against many potential defendants and trusts, with cheap electronic filing in courts and trusts all over the country, has substantially increased the leverage of the plaintiffs’ bar. The fact that trusts such as Manville pay only 5% or 10% of the approved claim is offset in many instances by the fact that the claimant will obtain compensation from many sources. See, e.g., RAND Report 2002, supra, at 40-41 (typical claimants today name 60 to 70 defendants); Judge Weiner Letter, supra (75,000 cases with 9,900,000 claims). 3. Manville Trust About July of 2000, the Manville Trust began to experience a dramatic and unanticipated rise in the number of claims being filed and expansion in scope of the industries and occupations which generated those claims. Over the last two years, that trend has continued. At the time of the bankruptcy proceedings in 1988, it was projected that the Trust would receive between eighty-three thousand and one hundred thousand claims over the life of the Trust. See Transcript Dec. 13, 2001, supra, at 9. This proved to be a gross under-estimate. In 2000 and 2001 alone, the Trust received, respectively, 59,2000 and 91,000 new claims. Manville Personal Injury Settlement Trust Reports, Fourth Quarter 2000; Manville Personal Injury Settlement Trust Reports, Fourth Quarter 2001. In those two years alone, the number of claims filed exceeded the maximum number of total claims originally projected. As of September 30, 2002, a total of 580,414 claims had been filed with the Trust since its inception. Manville Personal Injury Settlement Trust Reports, Third Quarter 2002. Current Manville claim forecasts place the number of claims at from a million and a quarter to more than three million during the lifetime of the Trust. See Transcript Dec. 13, 2001, supra, at 13-14; see also Issacharoff, supra, at 1932. An increasingly large percentage of the claims received by the Trust in recent years result from alleged asbestos exposure from industries such as non-asbestos manufacturing, textiles, paper and pulp, glass, durable metals, and others where Manville asbestos might have been present in sufficient quantity in the factories, or facilities of industries using asbestos, to contribute to asbestos-related disease. Transcript Dec. 13, 2001, supra, at 23-25; see also RAND Report 2002, supra, at 14-15; William J. Nicholson et al., Occupational Exposure to Asbestos: Population at Risk and Projected Mortality 1980-2030, 3 Am. J. Industrial Medicine 259 (1982). In the first half of 2001, over 30% of the claims received by the Trust were non-asbestos manufacturing and textile claims, sometimes described as “ambient air” claims. Austern Letter of July 24, 2001, supra, at 2. Under the 1995 TDP, it was difficult for the Trust “to police these ambient air claims vigorously” to ensure actual occupational asbestos exposure. See id. Claims resulting from occupational exposure less direct than that which tends to occur in asbestos manufacturing are likely to be less serious. See Section II.B.2, supra. The Manville Trust experienced a sharp rise in the number of non-malignant claims; this increase was evident both in the number of non-malignancy as compared to malignancy claims filed and in the ratio of dollars paid to non-malignancy relative to malignancy claims. Non-malignant claims are those that fall into one of the first three scheduled disease categories under the 1995 TDP — Bilateral Pleural Disease, Nondisabling Bilateral Interstitial Lung Disease, and Disabling Bilateral Interstitial Lung Disease. Statistics for the Manville Trust are discussed in terms of non-malignant vs. malignant claims as opposed to unimpaired vs. impaired claimants. Under the 1995 TDP, medical reports stating that the claimant suffered a medically observable injury were required; it is difficult if not impossible to determine on the basis of the information required to be submitted to the Trust the percentage of claimants who did or did not suffer impairment in their daily lives. See Transcript Dec. 13, 2001, supra, at 21-22. The category of non-malignant claims is not co-extensive with that of unimpaired claimants. Among other differences, nonmalignant claims cover those suffering from asbestosis, a chronic, often debilitating, and potentially fatal disease involving scarring the tissues of the lungs themselves and causing shortness of breath, coughing, fatigue, feelings of sickness and possible respiratory or cardiac failure. See Murphy et al., supra; 29 C.F.R. § 1910.1001, app. H, sec. Ill (2002) (OSHA medical surveillance guidelines); RAND Report 2002, supra, at 17. From 1995 until 1999, 88 percent of claims filed with the Trust were based upon non-malignancies. In 2001, that statistic had increased to 94%. The percentage of payments being made by the Trust to settle non-malignant claims as opposed to the most serious asbestos-related injuries also increased significantly. Prior to the adoption of the 1995 TDP and for the first five years of experience under it, claimants suffering from asbestos-related cancers received approximately 44% of Trust claims settlement payments (56% to non-malignancies). Since 2000 that percentage has sunk to 24% (76% to non-malignancies). See Response to the Submissions of the Unofficial Committee of Select Asbestos Claimants (“SAC”), the Solvent Co-Defendants and Steven Kazan, at 6 (Oct. 4, 2002). The 1995 TDP proved inadequate to deal with this unexpected change in circumstances. The increase in claims made it increasingly likely that the Trust would have insufficient funds to continue paying even the 10% of the liquidated value of all claims it had been paying since 1995. The Trustees’ responded by reducing the pro rata share from 10% to 5% in June of 2001. See Manville Personal Injury Settlement Trust Reports, Third Quarter 2002. Although the SCB and the Legal Representative contested this decision, it was agreed to go forward with the reduction on an interim basis until an appropriate long term pro rata share could be determined. Accordingly claimants have been paid 5% of the liquidated value of their claims since June 2001. See Memorandum Re: Manville Trust TDP Changes and the Status of the Pro Rata Share Review (Sept. 12, 2002), available at http://www.mantrust.org (“Pro Rata Share Memo.”); Transcript Dec. 13, 2001, supra, at 11. In November of 2001, the courts issued an order directing all interested persons to appear for a hearing in December of that year to consider “whether the equities involved and changed circumstances warrant or permit modifications of any relevant prior judgments.” In re Joint E. & S. Dists. Asbestos Litig., 2001 WL 1464362 (E.D.N.Y.2001). The courts took note of the recent trends, including the continuing rise in claims, the reduction in the pro rata amount paid on claims, and the plaintiffs’ lawyers’ media campaigns and other considerations encouraging a flood of new claims. They suggested that there might be “a misallocation of available funds, inequitably favoring those who are less needy over those with more pressing asbestos-related injuries.” Id. The courts heard interested parties, including David Austern, general counsel to the Manville Trust; Elihu Inselbuch, Selected Counsel for the Beneficiaries; Leslie Fagan, for the future claimants; Steven Kazan, a prominent asbestos plaintiffs’ lawyer who focuses on the representation of seriously injured claimants; Mark Iola, on behalf of the Unofficial Committee of Select Asbestos Claimants, a group of law firms which represent primarily seriously injured asbestos claimants; Fred Baron, also for Selected Counsel for the Beneficiaries; Perry Weitz, of Weitz & Luxenberg, P.C.; Roger Podesta, for Owens-Corning and Fibreboard, originally among the solvent Co-defendants; and Joe Rice, of Ness Motley, P.A. Extensive data concerning the operation of the Trust and contemporary contours of the asbestos problem generally were presented. The focus of the hearing was on the need to amend the Trust distribution process so as to best allocate its limited resources. The courts requested and received a series of reports from the Trust and other parties on the progress made toward modifying the TDP payment schedule. As a result of arms-length negotiations, the Authorized Parties reached agreement on changes to the 1995 TDP announced and described at a hearing on September 4, 2002. The Trust Distribution Process as amended by these changes is referred to as the 2002 Trust Distribution Process (“2002 TDP”). It is on file in these proceedings. C. Trust Payments to Date As of the end of November 2002 the total payments by the Trust are summarized in the chart below. Detailed year by year claims and payments are provided in summaries filed and docketed with this memorandum. Claims Paid to November 30, 2002 Average Total Value Claims Amount Claims Filed Paid Paid Mesothelioma 21,678 $ 642,319,866 $207,005 Lung Cancer 2 29,433 $ 403,630,247 $ 89,472 Lung Cancer 1 4,988 $ 46,755,483 $ 78,601 Other Cancer 6,742 $ 30,726,166 $ 46,369 Subtotal Cancer 62,841 $1,122,431,762 $124,530 Disabling Asbestosis 178,716 $1,159,839,671 $ 48,878 Nondisabling Asbestosis 169,507 $ 398,912,826 $ 25,104 Pleurals 92,801 $ 169,575,528 $ 12,426 Other 967 $ 28,730,399 $ 39,799 Subtotal Non-malignancy 441,991 $1,757,058,424 $ 32,087 Total 504,832 $2,879,490,186 $ 43,594 III. Law A. Power to Amend the Trust Distribution Process The 1995 TDP was _ part of a court-approved class action settlement. See In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 485-512 (E. & S.D.N.Y.1995), aff'd in primary part, 78 F.3d 764 (2d Cir.1996); see also Section II.A.2, supra. Under the 1995 TDP, the Trust, the SCB, and the Legal Representative, after consultation with the Special Advisor, have the power to amend the TDP provisions governing the “pro rata share, the Scheduled Diseases, Categorization Criteria, and Scheduled Values ..., and the Maximum Values ... to reflect changed circumstances, greater information and/or improved procedures.” 1995 TDP, supra, section K Other provisions of the Trust (except as provided in section H, granting concurrence or consultation rights for the Co-Defendant Manufacturers Subclass and the Manville Distributors Subclass in certain circumstances when their rights under the Trust are affected) may be amended for the same reasons pursuant to the agreement of the Trust and the SCB after consultation with the Special Advisor. Id. Action by the Authorized Parties is justified if and when unforeseen circumstances cause the TDP to operate inequitably. If they fail to act appropriately, the courts may require necessary modifications to the Trust distribution process under Federal Rules of Civil Procedure 60(b)(5) and (6). The purpose of Rule 60(b) generally is to preserve “a balance between serving the ends of justice and preserving the finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986), cited in Padd