Commentary on the futures problem, by Geoffrey C. Hazard, Jr.

• Author: Wood, Diane P.
• Position: Mass Torts Symposium - Response to article by Geoffrey C. Hazard in this issue, p.1901

It is hard to disagree with Professor Hazard's description of the futures problem as the most difficult one for the field of mass torts. This is so if we accept the background notion that we will continue to use the common law tort system this country inherited from post-feudal England as one tool for addressing certain kinds of common injuries to large numbers of people. Most of my comments today will proceed on the same basis that Professor Hazard uses until he offers his proposal for legislation: that is, I too assume at the outset that the United States is not likely soon to adopt a different mechanism for redressing the injuries suffered by the victims of mass torts, nor is it likely to adopt a different mechanism for allocating the costs of those injuries to the responsible parties or for punishing wrongdoers. The present system is, of course, the tort system, which, albeit imperfectly, tries to accomplish the goals of compensation, allocation of cost, and deterrence. It has been clear for some time that, even if the tort system is fine if Jones has negligently damaged Smith's car, or if Dr. Doe accidentally amputates the wrong leg of Patient Roe, its adaptation to ever more complex litigation leaves a great deal to be desired.

I would like to begin my commentary by looking at the definition of "futures" cases and then by isolating the variables that make them especially intractable. Professor Hazard offers the following definition in his paper: "a `futures' claim is one where a claimant cannot presently prove a causal connection between an injury, and a supposed source of injury, but nevertheless suspects or fears that he or she is suffering injury, that has its origin in the suspect source."(1) Phrasing the idea a little differently, we might say that a "futures" claim is one based on an event that has already occurred (such as exposure to a toxic material), but whose consequences will not become clear enough to support a legal claim until some time after the statute of limitations (measured from the date of the event) has expired. In some instances, the event may not yet have inflicted any cognizable injury on the claimant, even though it sets in motion a process that may ultimately result in injury, or that definitely will one day result in injury; in other instances, the event may already have caused injury, but the fact of that injury will not become ascertainable to the claimant until some time in the future. Further complicating matters is the fact that sometimes, but not always, the putative victims will at least know that the event has occurred--for example, that they were exposed to asbestos, or to HIV-tainted blood, or to Agent Orange--and so the potential victims will be capable of identifying themselves as such. In some cases, however, it will be nearly impossible to distinguish potential victims from members of society at large, and people will have no idea that they have a potential future claim. Who has not breathed in some environmental tobacco smoke? How many millions in America's cities have gone through ozone alert days during the hot summers, when the elderly, the very young, and other vulnerable individuals are warned to stay indoors?

These examples suggest some of the variables that are important to our analysis of futures claims. They also indicate, optimistically, that at least some kinds of futures cases may be amenable to reform efforts without radical change of our existing institutions, even if others are not. The list of variables important in analyzing futures claims includes the following:

1. Claimant a. Presently identifiable b. Identifiable only at a much later time 2. Defendant a. Single b. Multiple 3. Injury-causing event or source a. One-time occurrence b. Repeated occurrences, no definite end c. Repeated occurrences, terminated as of date certain 4. Nature of injury a. Latent b. Manifest 5. Causation (i.e., link between event and harm) It is easy to see, just by considering the different variations noted here, the ways in which traditional tort litigation is ill-suited to many futures claims. Statutes of limitations, even with liberal tolling rules, may require a plaintiff to file an action long before she has begun to experience the full consequences of the defendant's action. We should think twice before we implement a system that requires people to rush off and file a claim in court at the first hint of discomfort, on pain of losing the right to sue, even if that twinge never amounts to anything serious. On the other hand, even in the single-event cases, defendants want a way to bring closure to their expected liability, and it is often the case that full closure cannot be achieved without some kind of resolution (either a verdict after trial or a settlement) that...