Aggregation and settlement of mass torts.

• Author: Cooper, Edward H.
• Position: Mass Torts Symposium

INTRODUCTION

It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement.(1) This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model,"(2) while the second is a draft of settlement-class provisions for Federal Rule of Civil Procedure 23.(3) Before exploring the models, however, I will consider many of the doubts provoked by reflecting on the Working Group's experience. These are equal-opportunity doubts. There are powerful reasons to doubt the virtues of individual litigation of individual claims that arise out of a mass tort. These reasons support exploration of mass aggregation and mass settlement. At the same time, there are powerful reasons to doubt the virtues of mass aggregation and mass settlement. These reasons support the argument for making only modest changes or none at all.

In the end, there will be no firm conclusion. Indeed, not even the doubts will be expressed in firm or fully developed terms. The issues raised in this debate go to the core of adversary civil litigation. They also test tort doctrine for nonintentional wrongs, the multifarious character of state tort law as applied to conduct and injuries that span the nation, the role of federal courts in choosing and applying state law, the practices of representation that have substituted for individualized litigation, and more. Our received traditions in all of these areas are treasured, and properly so, but none of them fares well when subjected to the test of mass tort litigation.

Only drastic remedies offer hope for effective change. Even those who are prepared to accept drastic changes, however, may draw back from predicting the benefits that would justify the costs. We may be better advised to pursue small changes, anticipating only small benefits. All that is offered here is support for the argument that the changes that might achieve a coherent system are indeed drastic. In some measure, these doubts carry over even to the modest goal of facilitating the hope for global peace through settlement by revising Federal Rule of Civil Procedure 23 to address the problems that thwarted two brave attempts to establish massive asbestos settlements.(4)

There is a particular reason for setting a high threshold of justification for changes by statute or court rule. Both with and without resort to Rule 23, state and federal courts, prodded by lawyers for plaintiffs and defendants, have proved remarkably inventive in addressing the demands of mass torts. Stratagems accepted as routine today would have been dismissed as unthinkable a scant decade ago. Although founded in part on court rules and statutes, the evolution has been very much a common-law process. It is often observed that each new mass tort presents different problems, requiring different procedural solutions than any of its predecessors. If that is so, it may be better to leave judges free to adapt to the challenges without interference from statutes and rules framed for the last war by Congress and the rulemaking committees. There is a risk that lower courts, confronted with overwhelming burdens, may act from expediency rather than principle. Yet there is a hope that new principles will emerge from their inventive adaptations.

One last prefatory caution is in order. In talking about mass torts, it may seem desirable to offer a definition of the subject. One of the two words, "tort," is easy. This discussion does not involve every conceivable injury within a broad concept of tort law. We are talking about injuries at the center of traditional tort doctrine: personal injury and substantial injury to physical property, real or personal. The wrongs defined by modern regulatory legislation--antitrust, securities, and the like--seem different. And even with personal injury, we are seldom dealing with wrongs that are intentional in any but a very refined sense. The second word, "mass," is not so easily defined. It is possible to pick a numerical threshold, and that may be desirable for reform legislation. The number is likely to be rather high. Two hundred and fifty actions arising from common facts, or one thousand, may be handled by the collective resources of state and federal courts without significant disruption. But something more than the impact on the judicial system must affect the choice of a number. It must also take account of the impact on the tort claims. The broad model described below would have drastic consequences indeed, affecting choice of forum, choice of law, aggregated disposition, and more. Large numbers should be required for this sort of approach. Even for aggregated settlement, many models entail similar consequences in gentler guise. The more drastic the consequences that flow from a mass tort characterization, the greater the care needed in framing the definition.

1. THE DOUBTS

   1. Individual Adjudication of Tort Claims

      We ask a great deal of tort theory and judicial institutions in tort litigation. When considering aggregating devices as mechanisms of tort reform, it is important to ask whether, if we had judicial resources for the task, it would be better to enable every plaintiff who wishes to do so to sue independently and to sue as many times as there are defendants to sue. Many arguments favor this result. The force of these arguments is augmented by the weight of tradition.

      Traditionally, the plaintiff begins by choosing a court. The rules of subject-matter jurisdiction, coupled with the reality that most of the central defendants in mass torts are corporations, often give a choice between state and federal courts. Adept framing of the litigation can lock the case into federal court. As between state courts, contemporary views of personal jurisdiction and venue often give a substantial range of choice as well. This choice can be exercised to tactical advantage by considering such matters as local aggregation practices (including settlement), jury proclivities and the degree of judicial control, choice-of-law rules, docket congestion, and attorney convenience. Often, putting aside constraining class action practices, the individual plaintiff chooses when to bring suit, whom to associate as co-plaintiffs, and whom to make defendants. Individual plaintiffs also can choose whether to push for prompt disposition and early relief, whether to emphasize liability or damages, how to pursue discovery, and--often above all--what terms to accept in settlement.

      Apart from the effects of these many and elusive choices on outcome, we celebrate the "process values" that go with individual control. The sense of participation and control are believed to affect the level of satisfaction or dissatisfaction with litigation and the acceptability of the process. We tend to focus on plaintiffs in praising these values, perhaps in part because we--some of us, at any rate--do not care as much about the process-value experience of corporate defendants, and perhaps in part because we believe that defendants who face many adversaries can achieve a substantial measure of participation and control in aggregated litigation in ways that individual plaintiffs can not.

      Frank discussion of the charms of individual litigation adds values that represent escape from the cold rationality of legal rules. As to most issues in mass torts, the burden of persuasion will be stated as a preponderance of the evidence. The preponderance of the evidence, however, is an extraordinarily fluid standard that is shaped by many subtle factors. The context of specific parties and injuries may have a powerful impact on the willingness of either judge or jury to accept a given level of uncertainty. This flexible response to factual uncertainties joins with equally flexible response to legal uncertainties. Fault, contributory fault, causation, as well as the fancier frills that may decorate tort theory, all bend to individual factors. Such adaptability seems to some to speak ill of the institutions that administer our law, but to many it represents a triumph of justice over law.

      This summary recital of the advantages of individual litigation would read to many observers as a recital of disadvantages. To take one narrow illustration, defendants bewail the opportunities plaintiffs often enjoy to select a court, while plaintiffs decry the occasional opportunities that defendants seize to defeat that initial choice. When dealing with individualized events that involve no more than a few people, nonetheless, these concerns have not led to any general change or prospect of change.

      Dissatisfaction with individual adversary litigation of tort claims takes on a new tone when addressed to mass torts. With essentially unique events, we have few ways to measure the correctness of judgments. It is relatively easy to take it on faith that most judgments are wise. Mass torts, however, support frequent repetition of the litigation experiment. Frequent repetition invites inconsistent results, both on the merits and in measuring damages.(5) The inconsistencies, moreover, are confused by the efforts of both plaintiffs and defendants to manipulate the results by jockeying to bring to trial the cases that seem most favorable as measured by fact, sympathy, law, and tribunal. The inconsistency and manipulability of results leads to regular debates about "maturity." It is regularly suggested that a mass tort becomes mature only through a substantial number of individual trials. When the results begin to converge, maturity is reached and values are established. Until...