Procedural due process and aggregation devices in mass tort litigation.

• Author: Redish, Martin H.

JUST AS hard cases make bad law, so does burdensome litigation sometimes give rise to dubious procedural devices designed to reduce those burdens. Nowhere is this trend more evident than in the adjudication of mass torts in the United States. No one could seriously doubt the overwhelming burdens caused by modern mass tort litigation in general and asbestos litigation in particular. Both state and federal courts have been inundated, making it all but impossible to render full and fair individualized adjudication of claims.(1)

MASS TORT DILEMMAS

Desperate situations dictate desperate measures. After all, when the alternatives appear to be litigation chaos, on the one hand, and the effective denial of relief under applicable substantive law, on the other, just about any procedural device likely to avoid either of these extremes seems attractive. History has demonstrated, however, that if society is not careful, desperate situations also will give rise to a loss of perspective and a sacrifice of enduring values. For this very reason the American system of government has chose to enshrine enduring societal values in the form of a written, counter-majoritarian Constitution. Few of those constitutionalized values are more central to the normative framework of the American political system than the concept of procedural due process, which is embodied in both the Fifth and 14th amendments of the federal Constitution, as well as in state constitutions. But because due process is inherently a malleable concept, its protections are too often shunted aside with relative ease.(2) This is especially true when the burdens caused by adherence to the dictates of due process are as overwhelming as they are in at least certain areas of mass tort litigation.

To some extent, it is wholly consistent with the analytical essence of procedural due process to modify litigation procedures in light of their costs and burdens. But due process does not guarantee an unchanging set of procedures, regardless of the interests and costs involved. Rather, it requires a pragmatically focused weighing process that accommodates competing social concerns. Regardless of which underlying normative philosophical focus one chooses, however, the concept of procedural due process cannot tolerate use of a weighing process that results in no procedures at all. No process cannot be deemed to constitute due process, lest the constitutional protection be rendered a hollow mockery. As I have written before of due process balancing, "a house without a floor is no house at all."(3)

Once one accepts the premise that at least some floor of procedural protection must be provided, the question becomes where that floor is to be erected. In the area of mass tort litigation, however, even a casual examination of the aggregation devices employed by courts or suggested by commentators reveals that most of them threaten core elements of due process theory. These devices undermine both the goals of achieving an accurate decision and of legitimizing the adjudicatory process in the eyes of the litigants.

To be sure, it is incontrovertible that use of the suggested aggregation devices would have the obviously beneficial impact of reducing the costs, burdens and time of the litigation process. But so would resolving each case by means of a coin flip. The question that must be asked about each suggested aggregation procedure is whether it inescapably contravenes the central values underlying procedural due process. If so, the benefits it may produce must be deemed insufficient to overcome due process concerns. Otherwise, the constitutional protection of due process will have been rendered meaningless--an unacceptable result.

AGGREGATION DEVICES

Broadly described, there are four conceivable methods of resolving mass tort litigation by means of aggregation:

* Unlimited mass consolidation,

* Overlapping issue consolidation,

* Statistical sampling, and

* Settlement class actions.

1. Unlimited Mass Consolidation

   As the term implies, unlimited mass consolidation involves the combination of all existing mass tort cases concerning the same product or event filed in the same jurisdiction into a single proceeding. In federal court, this would be accomplished through the use of Rule 42(a) of the Federal Rules of Civil Procedure. Under this method, all aspects of the different cases are adjudicated as part of the same proceeding.

2. Overlapping Issue Consolidation

   This may be accomplished through the use of either class actions pursuant to Rule 23 or the consolidation of cases that already have been filed by using Rule 42(a). Overlapping issue consolidation involves the adjudication in one proceeding of only those issues that will arise identically in all cases--for examples, the validity of the state of the art defense or, in the case of a single defendant, the appropriateness and amount of punitive damage awards. Under this procedural tool, non identical issues will be adjudicated individually.

3. Statistical Sampling

   This is a controversial device employed prominently by Judge Robert Parker of the Eastern District of Texas in the Cimino asbestos litigation and is invoked only at the damage stage. He sought to employ what has been called a "lump sum" approach,(4) under which the jury was to hear evidence from 11 class representatives and 30 illustrative plaintiffs. half selected by each side. The jury was directed to render a damage award for all the plaintiffs based on evidence from the sample cases and expert testimony concerning total damages.(5) However, in In re Fibreboard Corp.(6) the Fifth Circuit rejected this approach and remanded.

   Judge Parker subsequently employed a "stratified sampling" approach, under which he divided the population of more than 2,200 cases into five disease categories, and then randomly selected samples from each category to total 160 cases. He held jury trials on damages for each of the sample cases and combined the sample verdicts in order to arrive at a total damage award for each case in the total population of cases. He awarded each sample case plaintiff the actual verdict received at trial, after employing remittitur in some of the cases, and gave each of the remaining cases the average of the post remittitur sample verdict for its own disease category.(7)

4. Settlement Class Actions

   This also is a controversial aggregation device. The concept envisions a class action to be certified on the condition that settlement be achieved. Thus, while both the certification process and the class action itself superficially resemble a traditional class action, in reality they are designed solely to provide the defendant with a form of global peace while simultaneously assuring the claimants of a fair share of the defendant's resources. Legal issues normally implicated in the course of litigation are irrelevant in this procedure.

5. What Price Due Process?

   While each of these devices is designed to bring about a form of efficient justice, most of them present serious--and possibly fatal--procedural problems. Before the due process implications of the various aggregation devices can be evaluated fully, however, one must have some understanding of the values our system seeks to foster by guaranteeing procedural due process.

   VALUES OF PROCEDURAL DUE PROCESS

   There is by no means universal agreement concerning the values sought to be fostered by the constitutional protection of procedural due process. Three broad based sets of values could arguably be promoted: (1) instrumental (or "accuracy" values, (2) non-instrumental (or "dignitary" values, and (3) accountability (or "democratic") values. While in some situations one could conceivable adopt one of the sets of values without simultaneously signing on to the others, it is important to note that these values are in no sense mutually exclusive. On the contrary, one could simultaneously accept all three. Indeed, one could reasonably adopt the non instrumental values as well as the instrumental values.

1. Instrumental Values

   The most obvious goal sought to be achieved by procedural due...