Why Daimler accommodates personal jurisdiction in mass tort litigations.

Author:Golanski, Alani
 
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  1. INTRODUCTION

    When she authored the majority opinion in Daimler AG v. Bauman, (1) did Justice Ruth Bader Ginsburg intend to fracture mass tort litigations, which typically involve numerous out-of-state defendants as well as out-of-state plaintiffs? The question seems odd for at least two reasons. First, we usually speak of the court rather than the judge who writes in its name. Second, the question too easily elicits a negative answer; there is nothing about the Daimler opinion that has anything to do with mass tort litigation, (2) and so there is no basis for saying that Justice Ginsburg held any intent whatsoever in relation to that species of litigation.

    Yet the question appears both appropriate and necessary. Appropriate, because Justice Ginsburg has singularly undertaken to reform and modernize the Supreme Court's personal jurisdiction jurisprudence over the past several years. Necessary, because courts around the nation handling mass tort litigations have been, or are at the risk of, misreading her opinion in Daimler and failing to discern its theoretical underpinnings. The majority opinion in Daimler appears to narrowly compress the range of jurisdictions in which courts may exercise general jurisdiction over corporate entities. (3) A deeper reading of the case and its intellectual roots demonstrates, however, that this approach to general jurisdiction correlates with an expansive view of specific jurisdiction capable of accommodating the multiparty, multi-jurisdictional mass tort scenario.

    Justice Ginsburg began honing her view in 2011 via both her dissenting opinion in J. Mclntyre Machinery v. Nicastro (4) and her opinion for a unanimous Court issued on the same day in Goodyear Dunlop Tires Operations, S.A. v. Brown. (5) Daimler followed in 2014. (6) In each of these opinions, Justice Ginsburg cited repeatedly to a 1966 Harvard Law Review article by Arthur T. von Mehren and Donald T. Trautman, entitled: "Jurisdiction to Adjudicate: A Suggested Analysis." (7) In that work, Professors von Mehren and Trautman proposed that fairness to both parties in the context of modern multistate controversies called for "a fresh methodology and terminology" covering adjudicatory jurisdiction. (8) They framed the new concepts "specific" and "general" jurisdiction, (9) soon to "become the touchstones of contemporary personal jurisdiction analysis." (10) Because the program von Mehren and Trautman outline in "Jurisdiction to Adjudicate" motivated Justice Ginsburg's approach, therein also lies the theoretical ground for assessing how Daimler should be applied in mass tort contexts.

    Toward that end, Part II homes in on the concept of a mass tort and justifies the inclination to locate a single forum to serve as the host venue in such litigations. Part III elucidates the relevant concepts and concerns announced by von Mehren and Trautman in their seminal article; also discussed is Professor Mary Twitchell's later writing advocating a fuller turn from general to specific jurisdiction. Part IV then addresses Justice Ginsburg's application of the von Mehren and Trautman, as well as Twitchell, scholarship. Part V provides an assessment of why Justice Ginsburg's ultimate jurisdictional opinion in Daimler should not be interpreted to present a constitutional obstacle to the efficient, centralized handling of mass tort litigations. The article concludes with Part VI.

  2. THE MASS TORT CENTRALIZED LITIGATION MODEL

    Neither courts nor scholars have agreed on a tightly wrapped definition of "mass tort." Typically, the term has been applied to litigations arising from widespread catastrophic personal injuries. (11) This article similarly focuses on the personal injury paradigm, although the jurisdictional analysis should translate to mass torts rooted in financial harm. (12)

    Some courts have rested on the basic hornbook notion that a mass tort is a "civil wrong that injures many people." (13) Others have considered most important the idea that "mass tort cases with their inherent complexity fall within the definition of extreme cases," hence "requiring special management." (14) While true, these definitions are, of course, inadequate.

    To qualify as a mass tort, a litigation will ordinarily satisfy four criteria. (15) First, consistent with the lexicographic view, the number of injured individuals in a mass tort will be substantial. (16) This will involve not simply injury to "many people," but to a number so great as to potentially task the judicial system and result in the need to resolve efficiency and docket concerns. (17) An attendant characteristic will often be the large number of defendants or collateral entities. (18) The mass tort often arises from vertical and horizontal actors playing contributory roles: vertical due to the lack of a privity defense and hence defendants at various points in the chain of distribution, and horizontal owing to the competitive marketplace. (19) Collateral entities will include insurers and lien holders. (20)

    Second, the many cases comprising the mass tort, given the common source of injury, will involve numerous overlapping factual and legal issues and circumstances. (21) These will tend to include: issues about the sorts of exposures or contacts with the injury-producing mechanism or substance; similar proofs concerning general causation (i.e., the capability of the harmful substance or toxin to cause the injury); substantially similar principles from general medicine and industrial hygiene; overlapping evidence concerning treatment modalities; identical proofs about what the defendants knew or should have known about the hazard; common legal standards rooted in negligence and products liability failure-to-warn and design defect jurisprudence; similar treatment and status of bankrupt tortfeasors; common representation of numerous parties by the same counsel; a similar game plan on the part of defendants to mitigate their own liability; and likely other common legal and factual matters. (22)

    Third, the issues in mass tort cases tend to be far more complex than in ordinary tort cases. (23) For instance, whereas in the ordinary negligence case the causation element folds into a unitary concept, in a mass tort litigation arising in the products liability or toxic tort context the causation element subdivides into three components at issue: "[(1)] the legal connection between the breach of duty and the harm...[(2)] the general capability of the [product] to cause the harm...[and (3)] the link in the particular case between the [product] and the harm[.]" (24) Further complications stem from the long latency periods arising from toxic exposures, which are often deemed to engender a need to relax certain evidentiary burdens, and also to reconcile the possibly competing needs of present and future litigants. (25) Allocations of fault and the molding of judgments are affected by the likelihood that several of the multiple tortfeasors have declared bankruptcy. (26) Commentators have added that mass tort is often further complicated by the existence of "satellite litigation," as when toxic tort defendants engage in protracted collateral litigation with their insurers. (27)

    Finally, especially owing to the complexity and varieties of proof required, and to the sophisticated expertise usually retained, mass tort cases are far more expensive to litigate than the typical tort case. (28) Questions about whether a defendant's conduct failed to satisfy the governing standard of liability often involves technological and policy issues that require comprehensive discovery, expertise, and preparation. (29) The causation issues, as suggested above, can become specially demanding, particularly when confounding factors are involved that may point to a number of possible causal sources. (30)

    It should now be apparent that in a mass tort litigation implicating multistate conduct and contacts, centralized litigation venues should permit jurists to gain sufficient supervisory expertise, litigants to consolidate their efforts and experts, and doctrinally consistent rulings to be issued. All of this, as well as coordinated settlement mechanisms, may result in substantial economies of scale and other efficiencies. (31) Accordingly, for instance, Judge Jack Weinstein set down certain criteria that he argued "must be satisfied in mass tort cases,...[including] the concentration of decision making in one or a few judges...[and] a single forum responsible for resolving legal and factual issues." (32)

    Professor Francis McGovern similarly outlined a four-step process for handling mass torts that have "matured," meaning that threshold questions of general causation, possible federal legislative preemption, approximate settlement values, and so forth, have mostly been resolved. (33) Professor McGovern's proposal is as follows: "(1) consolida[e] all cases of a single mature mass tort into one forum; (2) resolv[e] all common issues in that forum; (3) collect [] information concerning all injuries; and (4) develop [] a systematic process for resolving all remaining issues." (34)

    Centralized or single-forum handling of mass tort cases avoids the inefficiencies that may result from duplicative determinations of similar issues in multiple jurisdictions, and fosters uniform and thereby hopefully equitable treatment of the litigants. (35) Toward these ends, jurisdictions adopt rules of courts aimed at facilitating the handling of mass tort claims. (36) They may authorize, for example, the appointment of a coordinating judge authorized to assign a master caption, create a central case file and docket, establish a service list, periodically issue case management orders after consultation with counsel, and appoint and define the roles of steering committees and counsel of parties and liaison counsel. (37)

    Even if some may inevitably argue against recognizing a center point for mass tort litigations, (38) it is at least the case...

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