Disaggregating.

• Author: Burch, Elizabeth Chamblee
• Position: F. Hodge O'Neal Corporate and Securities Law Symposium: The Future of Class Actions

INTRODUCTION

Resolving mass torts prompts a study in contrasts. Definitionally, what makes a tort a mass tort is that numerous claimants' cases present a finite set of factual variations that involve similar causation questions and interdependent claim values] A thread of commonality--be it the same defendant, similar facts, comparable legal theories, or the same lawyers--runs throughout. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Claimants might have discrete genetic predispositions, consume a drug for different time periods under different conditions, suffer diverse injuries that manifest in unique ways, or live within various states. Consequently, judges typically cannot resolve mass torts on an aggregate basis except by promoting private settlement.

This paradox--the practice of centralizing claims before a single judge that the judge usually cannot resolve except through settlement--prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23's procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when courts typically cannot conclude them collectively? This Article's title suggests one answer: if minimal commonality continues to justify collective litigation, then the system should aggregate claims to adjudicate common concerns and then, as state laws or individual differences come to the forefront, disaggregate into smaller, cohesive groups whose members' claims could be resolved collectively through public, judicial means, such as trials or dispositive motions. Disaggregating into smaller, more cohesive groups could revive the use of issue classes, particularly when the class definition is correspondingly narrow.

Currently, courts routinely centralize through multidistrict litigation, but often afford little thought as to the preceding first-order question about commonality--at least in nonclass aggregation. Commentators and courts have considered commonality principally in the class-action context where their answers and justifications have tended toward either an individualistic or a welfare-maximizing approach. Individual justice theorists claim that the right to participate and be heard--to have one's day in court--should limit collectivization. (2) Thus, absent a high degree of commonality, the judicial system should not force plaintiffs to litigate collectively. (3) Welfare-maximizing scholars, on the other hand, trumpet efficiency: the individual's right to her day in court must give way to the greater good when doing so maximizes social welfare. (4) If aggregate litigation provides some measure of justice to the collective group in an economical way, then a low level of commonality suffices. But using these two metrics as the only means for judging commonality undervalues the nuances of nonclass aggregation where plaintiffs with diverse claims arising out of the same product must often sue collectively to make litigation economically viable and credibly threaten the defendant. Put simply, though plaintiffs have much in common, they have plenty of differences, too.

Reconsidering the question of what level of commonality justifies aggregate litigation in a community centered context can shed new light on both the answer to this question and a solution to the current paradox. Disaggregating mass torts for trial based on substantive commonality makes sense as one thinks about the disconnect between judicial resolution through class certification (when claims are judicially resolvable in the aggregate) versus the attorney overreaching that may take place in engineering resolution through a multidistrict litigation settlement. As "disaggregating" implies, decentralization occurs only after the transferee judge has uniformly addressed common, generic questions. This option strikes at the core of the disconnect between centralization and resolvability: state laws supply the rules of decision for nationwide mass torts and state legislatures enact tort statutes in response to community needs and demands, but the variations in those laws cause many of the substantive legal differences that undermine collective adjudication through the class action.

To be sure, disaggregating coupled with greater use of issue classes does not come as a simple fix or even the only fix. For instance, when plaintiffs are in the midst of a large multidistrict litigation that the transferee judge wants to resolve collectively, I have argued for a self-referential, relational definition of community that would allow plaintiffs to voluntarily associate with others who share their litigation goals, injuries, and claims. (5) Community in this sense concerns litigants' affective ties and relationships with one another; it grows out of their shared emotional connections from history, experience, and circumstantial commonality. (6) While remaining a part of the larger multidistrict litigation, that group could decide collectively whether to govern themselves and their settlement decisions through a supermajority vote. (7) Yet, this idea of community works within the current system. As such, it assumes the answer to the second question posed above must be "yes"--the federal judicial system should continue to centralize and collectively resolve claims with nominal commonality even though that resolvability typically hinges on private settlement, not a determinative judicial ruling or a jury trial. Put differently, allowing claimants to associate with one another based on their affective ties helps to justify a private, aggregate resolution by increasing relational commonality.

Disaggregating, however, provides a different answer to the second question of when to centralize claims. Disaggregating is not incompatible with centralization; rather, the federal system might still gain efficiency by aggregating claims with nominal commonality and allowing the transferee judge to address common, generic questions. But, after doing so, mass centralization should dissolve and yield to the countervailing concerns of the traditional, geographic community. The geographic community is concerned with local judges and juries accurately applying communal norms and state laws to factual claims, a role that remains important so long as state laws continue to govern nationwide mass torts. Otherwise, a handful of bellwether trials conducted under a single state's law could dictate the settlement terms for all victims, regardless of whether the verdicts might change based on alternative community values or state law variations. Community in this sense includes "people with common interests living in a particular area," such as neighborhoods, towns, and cities. (8) Given that mass-tort claims are often national in scope, (9) disaggregating for trial (and thus adhering to section 1407's pretrial restriction) allows heterogeneous communities to participate in fact finding and determine wrongdoing.

"Disaggregating" relies on several previous articles (10) that explained the tension between the individual and the group in mass litigation: On one hand, aggregation allows plaintiffs to present a united front and a credible threat to defendants, but, on the other, it weakens their autonomy when pursuing claims that are deeply personal. This fosters a strained union between the individual and the collective; sometimes the individual's goals harmonize with the group's aim, other times they do not. Consequently, my past work explored individuality and interdependence in terms of social norms, moral duties, and legal obligations. It contended that aggregating could fulfill procedural justice goals by bringing plaintiffs together and encouraging them to reason together about appropriate litigation ends, deliberate about how to best achieve those ends collectively, and pursue those ends with concerted force. In short, these previous articles focused on improving procedural legitimacy.

Each of these previous articles, however, alluded to a radical alternative: allowing individuals or groups to exit the aggregation. The reasons ranged from the pragmatic to the theoretical. Exit can signal dissatisfaction with substantive or procedural fairness. (11) It allows plaintiffs with fundamental differences over which litigation goals to pursue and how to pursue them to leave the group when significant conflicts arise. (12) Exit thus preserves litigants' voice opportunities and right to maximize their own individual tort gains. (13) Plus, members of smaller groups tend to be more cooperative and cohesive in advancing their collective interests. (14) Similarly, large, fractured groups jeopardize even a faithful attorney's ability to adequately represent all group members, (15) Finally, allowing smaller groups to exit may preserve a plaintiff's choice of forum, safeguard defendants' right to assert individual affirmative defenses, maintain fidelity to substantive state law, and reduce judicial error. (16)

Other reasons for allowing exit further swell this list. For example, centralizing claims almost inevitably leads to group-wide settlement, at least where the defendant is unsuccessful with motions to dismiss and motions for summary judgment. While private ordering through settlement might follow a handful of bellwether trials, jurors are geographically concentrated in the transferee forum. That prevents public participation from other affected communities nationwide, whereas holding trials in plaintiffs' original fora would further democratic participation ideals. (17) Jury trials are, after all, meant to be a communal enterprise and, as the American Tort Reform Association likes to point out, each community may approach the adjudicative and deliberative process differently. (18)

Accordingly, this Article explores a central theme that ties together all of...