Bendectin and Birth Defects: The Challenges of Mass Toxic Substances Litigation.

• Author: McGovern, Francis E.

By Michael D. Green. Philadelphia: University of Pennsylvania Press. 1996. Pp. xiii, 368. $29.95.

Mass tort litigation has stimulated major debates as to the boundaries of appropriate centralization of case resolution via class actions and consolidations. This issue has risen all the way to the U.S. Supreme Court, a rare feat for tort-related matters.(1)

The phenomenon of mass torts is typified by the filing of large numbers of lawsuits at roughly the same time in a relatively small number of jurisdictions, all arising from the same incident or product defect. This raises a "pig in a python" problem: How do you move these cases through the judicial system expeditiously while giving plaintiffs individual treatment without bankrupting either the courts or the defendants? The following interchange amply illustrates the two poles of this debate. In 1990, U.S. District Judge Robert Parker consolidated 3301 asbestos cases for one common trial on liability, causation, and damages. On appeal, U.S. Circuit Judge Patrick E. Higginbotham disagreed with Judge Parker concerning the appropriate balance of individual attention and efficient dispute resolution and responded as follows:

We are also uncomfortable with the suggestion that a move from one-on-one "traditional" modes is little more than a move to modernity. Such traditional ways of proceeding reflect far more than habit. They reflect the very culture of the jury trial and the case and controversy requirement of Article III. . . . Ultimately, these concerns find expression in defendants' right to due process.(2)

This was Judge Parker's rejoinder

This Order is a testament to failure -- failure of the federal court

system after ten years of trials and appeals to find a way to avoid the

unacceptable costs of this repetitive litigation. . . . Yet another jury

will now be asked to determine whether the same old products are

unreasonably dangerous when all the world already knows the

answer. We will, then, present to a succession of juries, the same

witnesses, time after time, to explain the effect of asbestos fibers on the

body and to show how the various disease processes result from

exposure.

. . .

. . . The problem at hand is analogous to that where an East Texas

farmer is compelled to hitch a Georgia stock to an old mule and

replow the same row time and again while his neighbor uses a diesel

tractor and jet airplanes fly overhead. Just as the farmer knows that

the row is too long and that the mule won't last, this Court knows that

many class members will not live to see the end of this controversy.

The effect of this Order will be to deny access to the courts for a

significant portion of the class.(3)

The debate over the appropriate level of centralization deserves further analysis, in large part because it reflects much larger movements, both national and international. Our body politic is currently engaged in a discussion of federalism versus devolution, and elitism versus populism.(4) What role should the federal government play in welfare, health care, and any number of related social issues? Should we decentralize decision making by reserving more local authority to the states? Should those decisions be made by a bureaucratic elite or left more to a mass of people closer to the public?

These larger themes are not unique to the United States. In France in particular and the European Union (KU) in general, for example, an intensive and quite similar debate is taking place, albeit in a different context -- subsidarity.(5) The Rassemblement pour la Republique, RPR, which is the political party currently in power in France, has divided into two camps -- the Jacobins and the liberals. The Jacobins, the intellectual heirs of Rousseau, believe that the state must oversee all public activity and act for the people in virtually every issue because l'Etat -- the state -- is the only possible expression of la volonte generale -- the public will. Thus, in the judicial sphere the judges must dictate to the parties the appropriate resolution to a legal conflict. Oftentimes the judge may select an equally qualified expert to assist in determining the appropriate outcome. The decision-making process is paternalistic, elitist, and inquisitorial, with maximum reliance on the superior ability of the judge to exercise un pouvoir de tutelle -- to protect citizens as wards of the state.

On the other hand, the liberals, the intellectual heirs of Montesquieu, believe more in la loi du marche -- the law of the marketplace -- and a balance of power rather than le pouvoir tutelaire de l'etat. They and others in the EU have developed the concept of subsidarity, a term roughly equivalent to our word devolution. The concept originated in two contexts -- legal briefing and bureaucratic decision making. When drafting a brief, French lawyers will present principal arguments -- les arguments principaux -- and then, explicitly in the brief, state alternative arguments -- called subsidiary arguments -- les arguments subsidiaires -- that may be dispositive for their side of the case if the court does not accept their principal arguments. This sense of "subsidiary" stands for consistent solutions to a legal issue even if they are not the preferred solution.

In a second sense, subsidarity denotes the process of pushing a decision down the chain of decision making to the lowest feasible level. Rather than centralize all decision making, subsidarity prefers local decisions that, although not necessarily precisely the same as the decisions that would have been made at the top, are quite within the range of acceptability. In the KU, the subsidarity approach ensures that decisions of common concern can be made by member states themselves, rather than the Brussels bureaucrats, as long as those decisions are consistent with the overall principles established by the KU. This approach has been particularly appealing to Great Britain in its effort to maintain more local control consistent with some form of European unity. In the judicial context, subsidarity refers to an effort by judges to push the decision-making process in legal disputes down to the litigants themselves, under the assumption that the litigants are in a better position than the judge to reach a satisfactory resolution. The Jacobins view this type of abstention by judges as a completely foreign and inferior mode of decision making.

This larger debate over centralization and devolution has manifested itself in the United States in our treatment of mass torts. In the 1980s, the cognoscenti of mass torts developed a consensus that centralization of decision making and aggregation of claims were the preferred methods of case management. Judge Jack Weinstein in Agent Orange,(6) Judge Carl Rubin in the Beverly Hills Supper Club(7) and Bendectin(8) cases, Judge Robert Parker in the Jenkins(9) and Cimino(10) asbestos cases, all plowed new ground in gaining judicial acceptance for the consolidation of large numbers of mass tort claims. The judicial impo-sition of consolidation reached the high-water mark with the Judicial Panel on Multidistrict Litigation's decision to reverse over ten years of decisions and grant MDL status to the asbestos cases(11) and Judge Marshall Levin's consolidation of 8555 asbestos cases in a single trial in Baltimore.(12)

During the same period, Congressman Kastenmeier of Wisconsin proposed expanding multidistrict litigation to allow for more consolidated trials.(13) The American Bar Association, with its Mass Torts Commission,(14) and the American Law Institute, with its Complex Litigation Project,(15) were promoting consolidation of similarly situated mass tort claims. Professors Arthur R. Miller and Mary Kay Kane provided a road map in the Complex Litigation Project for federal intrasystem consolidation, state court consolidation, and federal-state intersystem consolidation.(16)

In the academic world, Deborah Hensler and Mark A. Peterson of the Rand Institute for Civil Justice,(17) Professor David...