Beyond maturity: mass tort case management in the Manual for Complex Litigation.

AuthorWillging, Thomas E.
PositionMass Torts Symposium

This Article discusses aspects of the past, present, and future treatment of mass torts in the Manual for Complex Litigation ("Manual" or "MCL"). The Article develops the following story.

Some lawyers and judges have used the Manual like a treatise. A danger of such use is that the Manual may discuss a novel concept simply to encourage innovation and testing. Enshrining an innovative idea into a rule of law can lead to the premature creation of rigid legal rules. In the end, such rigidity can inhibit the innovative case management that the Manual is designed to promote. Mass tort litigation is exceedingly complex, involving widely differing congregations of multifaceted cases. A manual, with its inherent tendency to present rules of thumb, can fall prey to the temptation to oversimplify the factors that judges should consider when deciding, for example, whether to aggregate a group of tort cases. By presenting alternative, multidimensional approaches, some of which are sketched out in the last Part of this Article, a manual might avoid prematurely creating rigid rules.

Part I describes the Manual and its evolution. Part II uses the Manual's treatment of the concept of maturity in mass tort litigation and one court's reliance on that treatment as a case study to assess the role the Manual should play in the development of practices, procedures, and legal rules that might be applied to mass torts. Part III presents a critical evaluation of the maturity concept, examining how maturity would have applied to past and present mass tort congregations, challenging the premises underlying the general concept, and analyzing one alternative approach in which maturity would not be isolated from other factors affecting mass tort case management. Part IV addresses some of those other factors and considers one alternative for treating maturity differently in future versions of the Manual.

  1. WHAT IS THE MANUAL FOR COMPLEX LITIGATION AND HOW HAS IT EVOLVED?

    1. A Precursor to the Manual

      The Judicial Conference adopted the precursor to the Manual, entitled Handbook of Recommended Procedures for the Trial of Protracted Cases(1) ("Handbook"), in March 1960. A special panel of judges, appointed by Chief Justice Earl Warren in 1955 to serve as the Judicial Conference's Study Group on Protracted Litigation, developed the procedures in the Handbook. Working in consultation with leading trial lawyers, the study group served under the auspices of the Pretrial Committee of the Judicial Conference chaired by Alfred P. Murrah, then-Chief Judge of the Court of Appeals for the Tenth Circuit. Their mission was to uncover and make accessible to bench and bar the "great reservoir of experience in the conduct of protracted litigation accumulated over the years and lying dormant within the legal profession."(2) The Handbook produced by the study group was "designed as a tool, available for use by ... [whomever] chooses to use it."(3) The judges in the study group saw the prototypical problem as the "Big Case," which they identified as an antitrust case, a patent case, or a case involving high stakes or a large number of parties.(4) At the time the Handbook was written, the judiciary had not yet experienced the flood of small or medium-sized cases that, when added together, form the fodder for what we now call mass torts.

      The core research method for producing the Handbook was to collect the experiences of judges and lawyers about case management techniques. The purpose of the Handbook was to pass these experiences along to others who might confront similar "Big Cases."(5) The method was experiential in the broad sense that it drew on real, albeit anecdotal, litigation activity, as opposed to simply published opinions or other authorities. A reader of the Handbook is more likely to find footnotes citing discussions at seminars, reports from conferences, or unpublished case anecdotes, than to find footnotes citing published opinions.(6)

      For the most part, as its title asserts, the Handbook packaged suggestions in the form of recommendations to judges and lawyers. While the recommendations were presented in bold black letters--perhaps hinting at or inviting readers to see them as authoritative--the tone was managerial and for the most part deferential to existing rules. For example, on the use of special masters, the judges recommended that "[a] protracted case should not, in the absence of agreement by the parties, be referred in its entirety to a master," but "a master may perform useful functions, in aid of the assigned judge, on limited and specified matters such as fact reporting on preliminary matters, or complicated and involved accountings."(7) Later, the judges recommended considering use of a master to supervise discovery in exceptional cases, and carefully followed case law principles that "special masters should not be appointed automatically," nor "utilized as substitutes for the trial judge."(8)

      Notably, the Handbook's recommendations were posited as "rules" to govern the "Big Case." The black-letter format and the absence of alternative recommendations imply as much. Clearly the alternative of doing nothing was not acceptable, and the Handbook did not encourage judges to fashion their own approaches.

      More often, recommendations in the Handbook did not directly come into contact with applicable law but rather dealt with discretionary managerial functions. For example, the Handbook recommended: "When a protracted case is identified, the assigned judge should, at the earliest moment, take ... control of the case."(9) More specific recommendations for taking control of a case--for example, by holding early pretrial conferences and controlling discovery--were not explicitly authorized or prohibited by existing rules.

    2. MCL (First Edition)

      In 1969, the first edition of the Manual, prepared by a Board of Editors specially appointed by the Federal Judicial Center, was published under the title Manual for Complex and Multi-District Litigation ("MCL"). Congress had created the Center in December 1967 to "conduct research and study ... the operation"(10) of the federal courts and "to stimulate, create, develop, and conduct programs of continuing education and training for personnel of the judicial branch" of the federal government.(11) For purposes of this Article, it is important to note that the Center has no authority to take actions that are binding on the judiciary or on individual judges. Courts and judges, in other words, are under no legal or administrative obligation to follow any suggestions they may receive from Center education or research.

      When Justice Tom C. Clark, the first director of the Center, appointed the first Board of Editors, he seized an opportunity for the Center to address some pressing needs of the courts. As stated in the foreword to the MCL, the Center's "research and planning will require time before it affects the operations of the courts.... This Manual is designed to meet some of the current needs of the courts."(12) As to the intended use and authority of the MCL, the six judges who constituted the Board of Editors adopted Judge Murrah's approach as stated in the Handbook, that is, that the MCL "`contains neither a simplified outline for the easy disposition of complex litigation nor an in flexible formula or mold into which all trial and pre-trial procedures must be cast.'"(13) The procedures are recommended because they are "`the product of experience and the development of able minds.'"(14) In the end, "flexibility should be the keynote in applying the suggestions contained in this Manual."(15)

      The text of the MCL, however, struck a more imperative tone than the Handbook, and could be read as directing specific procedures and agendas for each stage of the litigation. For example, the editors asserted that "experience has demonstrated that in a complex case orderly discovery requires that the first wave of discovery be accompanied by plans for full discovery in two successive waves."(16) In a similar tone, the editors stated that a "crucial step in the first phase of judicial management of complex cases is the prompt entry of an order staying all pretrial proceedings until an initial schedule of discovery is approved."(17) The text set forth fixed agendas for the First Principal (Preliminary) Pretrial Conference(18) and for the Second Principal Pretrial Conference.(19) Without commenting on the wisdom of these apparent mandates--and without reliable empirical evidence about how frequently they were followed--one can only say that the Manual presents its guidance as a set of authoritatively stated procedural guidelines. Other than the disclaimer in the Foreword, no limitations suggest that these guidelines should not govern all of the subset of litigation classified as complex.

      The text of the MCL indicates that the authors moved beyond presenting suggestions for management and sought to influence the development of the law. For example, the MCL's treatment of survey samples and opinion polls suggests that the editors were aware that their text might be used as persuasive authority in interpreting and expanding the law relating to admissibility of surveys. As one commentator has noted, before the adoption of the Federal Rules of Evidence in 1975, "the question whether surveys constituted acceptable evidence ... was unsettled."(20) Doubts about admissibility of surveys "centered on their use of sampling techniques and their status as hearsay evidence."(21) In 1969, the MCL's black-letter recommendation on use of samples and polls stated that "[s]cientifically designed samples and polls, meeting the tests of necessity and trustworthiness, are useful adjuncts to conventional methods of proof and may contribute materially to shortening the trial of the complex case."(22) The implication seems clear enough: valid surveys probative of a material fact should be admitted into evidence. Almost five...

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