Forces shaping mass tort litigation: strategies for defense counsel.

• Author: Lysaught, Patrick

Unless corrective steps are taken, American business and civil justice systems may not be able to withstand the onslaught of class actions

RESOLVING mass tort litigation is complex because of a variety of forces. While the task of doing so falls to courts, administrative agencies and lawyers, the lay public and the media often drive a frenzy that creates insatiable demands on the system and impedes the fair and expeditious resolution of the claims. Responding to media sensationalism, the lay public overestimates the nature and extent of the problem and the solutions the civil justice system has to offer for the alleged tortious activity of corporate America. Liability issues are oversimplified, leading to far too many claims without merit. The large number of questionable claims hinders the resolution of genuine claims.

The proliferation of Internet users and websites has created an additional dimension of distortion. Disgruntled and Internet savvy consumers need only know how to access various sites on the Internet before they are parties to a massive class action lawsuit. Type in "asbestos litigation" or "breast implant litigation," and almost any search engine will take the user to a number of plaintiffs' attorneys' websites.(1) But the Internet has a positive aspect as well. It may be a tool to reduce litigation costs by offering a variety of workable solutions to the growing problems of inefficiency and redundancy in mass tort litigation.

The breast implant litigation illustrates how mass tort litigation in the United States has gone terribly wrong. But there are strategies and viewpoints that have emerged from both the trenches and the civil justice system experts for battling the mass tort litigation problem.

BREAST IMPLANT CASES AND JUNK SCIENCE

1. The Cases

   For more than a decade, thousands of women have claimed that their silicone breast implants have caused them to suffer a wide variety of often non-specific ailments. Their claims have been widely and vigorously reported by the media, including coverage of consumer-led protest marches on the offices of manufacturers. Given that virtually all well-controlled scientific studies following accepted scientific methodology have concluded that there is no causal link, it is puzzling how the breast implant saga was "created." Anecdotally, however, it provides insight into the future of mass tort litigation and plaintiffs' strategies.

   Plaintiffs in the breast implant cases have asserted strict liability, negligence and breach of warranty claims against various breast implant manufacturers. The battlegrounds have been both state and federal courts, and the stakes for both the larger and smaller manufacturers are exceedingly high.

   Over time, the plaintiffs' theories have varied because the scientific evidence linking silicone breast implants with the alleged injuries was very weak from the outset. This shifting-sands approach to liability, designed to deflect legal and scientific challenges to the viability of claims, has become increasingly popular. The singular truth is that once there are enough claims, the focus necessarily shifts from defending the product to saving the company. It is often argued that the only rational approach is settlement. Leverage based on numbers of claims, as opposed to the strength of liability, is the key focus of plaintiffs' counsel. It becomes readily apparent then that the scope of potential mass tort litigation is boundless.

   A single theory of liability or claim of injury will limit the number of potential plaintiffs. Therefore, plaintiffs' counsel identify many potential claims of injury. This increases the defendant's potential exposure by increasing the number of plaintiffs and spreads the cost of plaintiffs' counsel over many more claims. In the breast implant cases, for example, most plaintiffs initially focused on the alleged risk of breast cancer from silicone implants. Later, the theory evolved to one alleging that the implants caused autoimmune diseases. Finally, other plaintiffs claimed that the implants gave them "atypical connective disease."

   Faced with a proliferation of claims and theories, most judges and juries, untrained as chemists, biologists, toxicologists or epidemiologists (only four among many scientific fields necessary to understand the validity of the plaintiffs' claims) were uncertain as to how to resolve the cases properly. Initially, the manufacturers, believing the claims unfounded, seemed not to take them seriously. The result of such forces at the beginning of the litigation was huge jury awards to plaintiffs who could not even offer valid scientific proof that their alleged ailments were caused by the defendants' products.

   A crucial turning point came in late 1996 when Judge Robert E. Jones in the U.S. District Court for the District of Oregon barred plaintiffs' expert witnesses. Relying on his own court-appointed scientific experts, Judge Jones held that the plaintiffs' experts' evidence supporting the linkage between silicone breast implants and systemic diseases did not meet the threshold of scientific proof necessary under Daubert to merit being presented to the jury.(2)

   Most of the breast implant cases now have been consolidated by the Multidistrict Litigation Panel in the U.S. District Court for the Northern District of Alabama. There, Judge Sam C. Pointer Jr. has taken innovative and efficient approaches to seeing the cases disposed of in a timely manner.(3) He appointed neutral scientific experts, called the National Science Panel, to weigh the scientific evidence. He also appointed Professor Francis McGovern of Duke University School of Law to assist in facilitating cooperation between state and federal courts with respect to discovery and other pretrial matters.

   The battle is nearing its end, but the costs have been extremely high for the defendants. For example, Dow Coming, the nation's leading producer of the breast implants, went into bankruptcy in 1995 to shield itself from the thousands of lawsuits being filed. Last December, a federal bankruptcy judge approved Dow Corning's $4.5 billion plan to settle the claims against it. Three other defendants--Baxter, Bristol Myers Squibb, and Minnesota Mining-agreed to a $3 billion combined settlement in an effort to remove their potential exposure, however minimal that might be. The total agreed to be paid to settle these "junk science" claims is currently more than $7 billion. Of course, these amounts do not reflect the total cost of the litigation--other settlements; verdicts; the cost of defense, expert and consultant fees; the loss of productivity of employees; and the loss of good will.

2. The Lessons

   The breast implant cases offer a number of valuable lessons to mass tort defendants and their counsel.

   1. Be wary of mass tort litigation potentially involving a large number of consumers

      No matter how unsupportable a claim may seem to be, defendants and their counsel must recognize the potential for mass tort litigation driven by large numbers of potential plaintiffs. Defendants in cases involving widely used products need to recognize that every case involving the products is the potential launching pad for mass tort litigation. Defendants must have the best counsel available, vigorously defend the case and refuse to settle, unless there is an economic disincentive that is inherently part of the settlement. Otherwise, the payment of money is simply addictive to plaintiffs' lawyers. If defendants make it too easy and pay premiums because of the desire to avoid litigation costs, plaintiffs and their lawyers will make each settlement the ground floor for the next. Companies that develop a reputation for avoiding trial will become targets.

   2. Be wary of mass tort litigation driven by "junk science": Two plans of attack

      One of the often-cited problems with mass tort litigation involving exposure to, or ingestion of, chemicals, implants or drugs is that the science has not caught up with the litigator. If no scientific and medical support exists for their claims, plaintiffs ought not be in court. This is precisely what happened in the breast-implant litigation. However, "junk science" claims continue to make it through the courthouse doors, and defendants and their counsel need to be ready. There are two approaches that offer a strong defense.

      1. Impeach "junk science" with real science

         Defense counsel and their clients must explore the utilization of impeachment scientific evidence, or, as may be the case, a total lack of scientific evidence. For example, Daubert is becoming an ever-more viable tool for limiting the use of "junk science." In Kumho Tire Co. v. Carmichael,(4) the U.S. Supreme Court ruled that a trial judge's gate-keeping function, as announced in Daubert, applied not only to "scientific" testimony, but also to the testimony of engineers and other experts who are not scientists. In short, trial judges have wide latitude in determining the reliability of an expert's testimony and in excluding such testimony when warranted. Absent expert support on the critical element of causation, plaintiffs' claims must fail.

      2. Use Rule 706 early

         Second, defense counsel should consider moving under Rule 706 of the Federal Rules of Evidence to have the court appoint a panel of neutral experts. To avoid the pitfalls experienced in the breast implant litigation, where the use of the National Science Panel has been criticized as being "very expensive and slow",(5) defense counsel, after carefully considering the appropriate literature and scientific or other critical liability issues, should consider requesting the appointment of a panel at an early stage in the litigation. This approach may provide defendants and their counsel with a good brake on the plaintiff's case early enough to derail the mass tort litigation train before it picks up speed.

         SUGGESTED STRATEGIES

         Suggestions and strategies for stemming the onslaught of mass tort...