Toward a cooperative strategy for federal and state judges in mass tort litigation.

AuthorMcGovern, Francis E.
PositionMass Torts Symposium

Judges are now players in the mass tort game.(1) Whatever approach any judge takes in managing a mass tort, judicial input is a critical factor in the ultimate progress of the litigation. To certify or not to certify, for example, is a question that must be answered with profound results for the outcome of the mass tort.(2) Recognizing the role of judges, recent legal literature has suggested that the ubiquity and massness of the tort should lead to cooperation among judges. Through cooperation, judges can promote efficiency and horizontal equity in the adjudication.(3)

"Cooperation" among judges has been promoted in multiple and often confusing forms; "cooperation" has varyingly meant communication, coordination, collaboration, or cooperation in the negotiation sense of seeking joint gains.(4) In the national mass tort context, "cooperation" has more often been a euphemism for a case management strategy of aggregating and centralizing litigation and encouraging state trial judges to defer to a federal multidistrict transferee judge in resolving litigation. This strategy has critical weaknesses that limit its ultimate value. It has behavioral, structural, and political impediments; it can conflict with an appreciation of the maturity(5) and elasticity(6) of mass torts, and it may run contrary to recent Supreme Court jurisprudence.(7) There is an alternative cooperative strategy that has significantly more potential for benefiting judges, litigants, and the legal system as a whole. The alternative strategy can be implemented de jure or de facto and focuses at the institutional, rather than individual, level and suggests complimentary, rather than competing, roles for state and federal courts.


    Over the last thirty years judges have expanded their vision of themselves from umpires to managers.(8) The most prominent judges in the first half of the twentieth century were the opinion writers;(9) the most recognized judges now are case managers. In the context of mass torts, the role of the judge can be analogized more to a "player." Judges Carl Rubin,(10) Jack Weinstein,(11) Robert Parker,(12) Tom Lambros(13) and others have been more critical in the process leading to the outcome of mass torts than the lawyers or their clients. They were the ones who, in effect, taught the bar how to resolve large numbers of cases. Had it not been for their innovative use of single issue trials, class actions, alternative dispute resolution, and other pragmatic procedural techniques, the mass tort bar would not be the same today.

    Because of both the potential elasticity of mass torts and the magnifying effects of any outcomes on other similarly situated plaintiffs, judicial management decisions inevitably are determinative, regardless of the decision.(14) If a judge decides to try one case at a time, that decision has a chilling effect on the filing of new cases.(15) In this era of entrepreneurial litigation, plaintiffs' counsel are not typically eager to inventory large numbers of cases unless they think that the cases will be resolved in a timely fashion. In the context of a judicial setting that promotes timely case resolution, however, plaintiffs' attorneys will use a larger inventory of cases to create superior bargaining power. If a judge decides to create an inexpensive and expeditious case management procedure via trial or settlement, the judge invites new filings. "If you build a super-highway, there will be a traffic jam."(16)

    Recently there has been a major shift in the mass tort litigation area. The Supreme Court and various federal courts of appeals have rejected many of the pragmatic case management approaches developed by the trial judges in the trenches. The high water mark of aggregation or collective case processing, at least for certain purposes, has been reached. Amchem Products, Inc. v. Windsor,(17) Ortiz v. Fibreboard Corp.,(18) Cimino v. Raymark Industries, Inc.,(19) Wadleigh v. Rhone-Poulenc Rorer, Inc.,(20) Castano v. American Tobacco Co.,(21) In re Three Mile Island Litigation,(22) and other opinions suggest that certain fundamental principles of our system of litigation have triumphed over pragmatism.(23) The model of one-by-one resolution of each individual's rights, either plaintiff's or defendant's, in the context of our system of federalism is the predominant model. Circumventing those principles, even if it means a more efficient overall outcome, is not acceptable.(24)

    The prevailing litigation environment places more emphasis on corrective justice values such as individual autonomy and fundamental principles of due process, and less of a focus on efficiency.(25) It also places more emphasis on federalism than on federalization.(26) In this context, there is an opportunity for the judiciary to develop new strategies for resolving mass torts. Rather than viewing cooperation at the judge-to-judge level, a more productive form of cooperation at the state judiciary-to-federal judiciary level has the potential to accommodate and advance both of these sets of goals. A strategy of cooperation from an institutional perspective can achieve far more joint gains in the sense of integrative bargaining than the prevailing individual efforts at cooperation.

    This concept of cooperation is closely akin to the notion of cooperation in negotiation theory.(27) Cooperation in this context means seeking a mutually beneficial outcome by transforming a zero sum game into an opportunity for achieving joint gains. By working together in exploring the true interests of the parties, sharing information, and taking advantage of differences in those interests, it may be possible to agree on a solution that is more satisfactory to all parties. This cooperative strategy attempts to take advantage of both the revised value set imposed on the trenches by appellate judges and the realities of the relationships currently in practice among federal and state judges, among the varieties of plaintiffs' counsel, and between defense counsel and their clients.


    Chief Justice Burger,(28) Chief Justice Rehnquist,(29) Federal Judicial Center Directors Schwarzer and Zobel,(30) Professor Dan Meador,(31) the State Justice Institute ("SJI"),(32) and others have promoted cooperation among judges in order to assist in the fair, timely, and efficient resolution of litigation. These thoughtful proposals have generally focused on communication and coordination. Their goals have been twofold: eliminating redundancy and promoting consistency. Any cooperation beyond communication and coordination has, in practice, been translated into a zero-sum game: state judges defer to federal transferee judges, and federal transferee judges make the decisions. The imbalance in judicial resources and the scope of jurisdiction are simply too great to develop reciprocal cooperative efforts. Any joint gains, therefore, stem only from the reduction of duplicative efforts and the increase in consistency amongst outcomes, but do not extend further.

    Other approaches to "cooperation" suggest collaboration not only in joint scheduling and division of labor, but also in the sense of joint decision making. There has also been the prospect of "cooperation" in the sense of integrative bargaining, i.e., state and federal judges "negotiating" to achieve more preferable outcomes for managing mass tort litigation.

    In reality, communication and coordination, particularly in the early stages of a case's life cycle, are often quite successful. There have been major strides in overcoming the behavioral impediments inherent in judicial cooperation, and there have been significant benefits to both judges and litigants in achieving efficiency goals by joint scheduling and division of labor. Collaborative decision making has been less common. True integrative bargaining has proven generally unachievable.

    In addition to this general plea for cooperation among judges in mass torts, there has been a second theme: "cooperation" as a means of achieving centralization of control over the litigation in a federal court. Various judges and academics have developed a procedure for resolving mass torts that focuses on consolidation and aggregation, thereby enhancing the chances for a global resolution. The aim is to resolve an entire mass tort with, finality by centralizing control in one locus. It becomes critical to have individual judges "cooperate" so that the litigants dc, not have competing forums in which to operate. State judges, in particular, could create venues that would thwart this centralization strategy if they did not defer to the federal judge.

    The separate themes of (1) communication and coordination and (2) centralized litigation are easily confused when they are both described as "cooperation." The former has achieved substantial success with only limited downside; the latter is subject to major problems.

    There are substantial risks of error costs by over-centralization. If, for example, discovery is limited to a single opportunity, the chances of fully sharing information are reduced. The history of the Dalkon Shield litigation illustrates the limitations inherent in one-shot discovery.

    Unless there is complete centralization, there may be disparate verdicts creating difficulties for assembling consistent data points to inform an accurate settlement.(33) Typically state judges who do not defer tend to be in non-representative jurisdictions. As a result, trial outcomes, and even settlement values, can skew any comprehensive analysis.

    There is also the risk of error from the consolidation itself. The stakes of litigation can often rise to such a level that defendants are forced to settle or risk losing their entire assets. Alternatively, control of the consolidation may end up, in the hands of attorneys more intent on resolution than accuracy. Whenever plaintiffs'...

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