The futures problem.

• Author: Hazard, Geoffrey C., Jr.
• Position: Mass Torts Symposium

INTRODUCTION

Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem(1) and Ortiz(2) appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about the validity of class suit injunctions that were adumbratted in Martin v. Wilks.(3)

1. "FUTURES" IN MASS TORTS

   As has often been noted, there are mass torts, and there are mass torts.(4) On one end are airplane crashes involving large passenger jets, in which there are hundreds of victims in a single traumatic misfortune, typically all of whom are killed. On the other end are "toxic torts," such as injuries from asbestos, drugs, or prosthetic devices, where over a period of time an injurious product affects--at least, the product is alleged to have affected--some victims with apparently serious effects, some with moderate effects, and others with little or no discernible effects. The two categories shade into each other but generally can be distinguished.

   Substantially similar to the airplane crash cases, in terms of the legal problems presented, are railroad and bus accidents, passenger vessel sinkings, and food poisoning from a single batch of contaminated victual. Ordinarily in these situations, each of the injured people can be definitely identified, subject to verification from passenger lists or fairly good circumstantial evidence such as specific purchase of food.(5) The number of victims in such cases is also usually definite and rarely exceeds a few hundred. The basis of liability as regards the victims is often fairly clear, although there may be difficult legal and factual issues in allocating responsibility among defendants. Where the victims have suffered death, as in air crashes, the damage claims will be economic loss, perhaps loss of companionship, perhaps brief pain and suffering, but not medical expenses or long term pain and suffering. Thus, in these mass torts most, if not all, of the elements of obligation to the victims usually will be ascertainable at an early stage.

   Toxic torts, such as the asbestos claims and claims of harmful drugs, present much more difficult evidentiary and administrative problems. Toxic torts by definition involve a biological interaction between the allegedly injurious substance and the victim. Most toxic torts involve human victims, but there can be animal victims (poisonous feed, as in the British "mad cow" case(6)) or plant victims.(7) Biological interactions, whether involving humans or animals or vegetation, typically are very complex. This is particularly true where exposures are relatively small or intermittent. Moreover, manifestation of injury may be long delayed from the lime of exposure, sometimes for weeks or months, sometimes--as in the case of asbestos--for years. In some of these cases, correlation is readily established and sometimes so is the physical etiology. Proof of causation often is not very definite, however, and in many situations is a matter of gradation. In some instances the proof of causation is based on probabilistic analysis and is subject to more or less intense disputation. In some cases it may be "obvious" that a causal relation is involved. In others there is a boundary beyond which injury is speculative or de minimis, although that point may be clear only in theory and difficult or impossible to establish in fact.

   Claims in this second category of cases typically involve problems of "futures." As noted above, 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. The lack of present proof means that the claimant generally cannot properly bring present suit. Bringing suit, even without good proof of causation, of course would open the way to discovery of evidence from the defendants. Discovery may generate proof of causation, perhaps through statistical analysis based on proof that there have been similar cases that permit the inference of causation.(8) Discovery, however, is not guaranteed to produce positive results.(9) Moreover, serious legal risks are entailed in bringing a premature claim: the defendant may push the case to trial, opening the possibility that eventual judgment may be adverse and in any event reducing the settlement value of the claim. A claim brought prematurely may well be adjudicated on a basis that results in res judicata, precluding later assertion at a subsequent stage when proof of causation is available.

   In terms of available proof, and hence as a legal basis for suit and a practical basis in settlement value, a futures claim therefore is a premature claim.

2. CASES WITH No "FUTURES" AND MEDICAL MONITORING

   As indicated above, some mass torts do not involve futures claims, or at least none that create serious legal issues. All air crash victims usually are dead and ordinarily can be identified as a basis for wrongful death claims. Victims of other kinds of collisions--trains, buses, etc.--usually can be counted, and a measurement of their damages is no more difficult than in other personal injury cases. Some toxic torts--the Thalidomide victims come to mind--also involve victims whose identity and magnitude of injury is clear more or less immediately.(10) The food poisoning cases typically involve a similarly confined number of victims, with immediate causal consequences confined to immediate injury or to mild injuries that are legally worth little more than nuisance value or commercial good-will reparation.(11)

   These kinds of mass torts may involve large and complicated litigation, but they are not "mass torts" for purposes of present discussion. A large and complicated litigation may involve only a few claimants who attempt to establish the question of liability, a determination of compensatory damages and perhaps a determination of punitive damages against the defendant or defendants. There can be difficult and sometimes ugly questions of which of the claimants should go first, of how the risks of outcome should be distributed among claimants, and problems of allocation of burden and gain concerning claimants litigation costs and attorneys' fees. These questions, however, typically are resolved by negotiation or, failing that, by a preliminary adjudication by the judge.(12)

   The large and complicated issues in these cases often can arise from litigation among defendants to determine obligation and share of liability. Illustrative of these situations are airplane crash cases where liability to the victims is assumed but there is dispute among the air carrier, plane manufacturer, and others as to specific cause and fault. These too are what might be called big tort cases, but not "mass torts." That is, they involve several parties, complex issues, and large stakes. But that is true of many types of modern litigation, including various kinds of financial and commercial litigation. They lack, however, the distinguishing feature of mass torts, which is the existence of a large number of victims whose injuries are various, including some victims who have very serious injuries and some whose injuries may be exiguous or practically nil.

   A subcategory of "futures" cases are those involved in medical monitoring. Medical monitoring is a procedure in which a set of possible victims is given periodic examinations to determine whether and when they manifest symptoms that are believed to result from a specified source.(13) Those who eventually reveal no injury are dropped from the group, usually with some payment for their trouble. Those who eventually reveal the suspect symptoms become eligible as claimants, either in conventional tort suit or through some stipulated compensation system. Typically, the cost of the monitoring is imposed on the defendant. Medical monitoring is a useful device in various situations. Indeed, in some situations a defendant may willingly join in requesting medical monitoring, in the hope and expectation that the results will eliminate its liability or reduce it to definite proportions.

   A decree requiring medical monitoring, however, has two prerequisites. First, there must be sufficient proof of a causal connection between the defendant's activity and the injury. The strength of that proof could vary from something like "reasonable suspicion" to "probable cause" to proof sufficient to establish liability in favor of some of the persons in the victim group.(14) Of course, a target defendant could stipulate to medical monitoring upon a lesser showing, or no showing at all, where the target considers the positive advantages of its liability being excluded or mitigated. Conversely, it is not sufficient for court-ordered medical monitoring that there be merely suspicion or fear of the ascribed cause.(15) The second prerequisite is that the set of claimants be definitely ascertained.(16) To be given the examinations, the population in question must be identified, either immediately by name or by definite category through which they can be sought out, for example, people living within X radius of Three Mile Island.(17)

   A medical monitoring procedure thus is appropriate for a group that consists of people who are presently identifiable as having been exposed, even though it is uncertain whether some or any of them will eventually manifest the feared malady. In this respect the monitored group is similar to a set of present claimants in...