Professor Linda S. Mullenix University of Trento, Spring 2007

1. Professor Linda S. Mullenix University of Trento, Spring 2007 Class Actions and Mass Tort Litigation in a Global Context: The Jurisprudential Debate

2. Mass Tort Litigation: The Jurisprudential Debate • What is the Jurisprudential Debate? • Are “mass torts” feasible? • Can tort actions be aggregated and tried together? • What is the essential nature of a tort claim or a tort actions? • Is there a fundamental right to litigate tort claims individually? • Is that individual right abrogated when torts are collected in an aggregation for trial or settlement?

3. Mass Tort Litigation: The Jurisprudential Debate • Where has debate occurred? • Academic writings and discourse • Judicial decisions • Statutes and rules • Commentary to statutes and rule

4. Mass Tort Litigation: The Jurisprudential Debate • Judicial decisions reflecting the jurisprudential debate: • Mertens v. Abbott Laboratories (N.H. D. 1983): • DES litigation • Plaintiffs: daughters of women ingesting DES for pregnancy symptoms (in utero injuries) • Defendants: 11 manufacturers (but hundreds of firms manufactured DES) • Alleged injuiries damages to reproductive capacity; surgeries; sterility

5. Mass Tort Litigation: The Jurisprudential Debate • Mertens v. Abbott Laboratories (N.H. D. 1983): • Plaintiffs seek certification of Rule 23(b)(3) class action (damage class action) • Should court certify this class action? • Do common questions of law or fact predominate over individual questions affecting only individual members of the class? • Plaintiffs argue question of global liability is predominant • Seek determination that DES causes injury to females in utero • This legal issue predominates over questions affecting individual class members • Does court agree with Plaintiffs’ argument? (why or why not?)

6. Mass Tort Litigation: The Jurisprudential Debate • Mertens v. Abbott Laboratories (N.H. D. 1983): • Court disagrees, refuses to certify a class action: why? • Mere finding DES causes injury would not advance common cause of class members • Too many individual differences among class members: • Varied degress of use • Varied degrees of exposure • Varied and different degrees of harm • Other individual differences: • Different chemical formulations for drug • State of the art at time of manufacture, manufacturer’s knowledge of possible carcinogenic effects • Proximate causation required for each individual class member

7. Mass Tort Litigation: The Jurisprudential Debate • Mertens v. Abbott Laboratories (N.H. D. 1983): • Problems with proposed DES class action: • Per se rule that DES causes injury would not result in per se rule of liability • Liability issue would require individual proof for each claimant • Damages also would be different for each class member and require individualized proof • Class action not a “superior” means for resolving dispute • Not an instance of “small claims” injuries • Individual cases can be handled on individual basis

8. Mass Tort Litigation: The Jurisprudential Debate • Cimino v. Raymark Industries, Inc. (E.D. Tex. 1989) • Proposed Rule 23(b)(3) asbestos class action: • Personal injury asbestos claimants in eastern district of Texas • Defendants: multiple asbestos manufacturers • Court certified a class action, with 3-phase trial: • Phase I: issue of gross negligence & damage multiplier • Phase 2: trial of class representatives’ cases (findings of exposure and actual damages) • Phase 3: distribute jury award of actual and punitive damages • Defendants challenge class certification on appeal

9. Mass Tort Litigation: The Jurisprudential Debate • Cimino v. Raymark Industries, Inc. (E.D. Tex. 1989) • Questions: • Is this a permissible class certification? • Is this a permissible trial plan? • Does the trial plan accord justice to the Plaintiffs? • Does the trial plan accord justice to the Defendants?

10. Mass Tort Litigation: The Jurisprudential Debate • Cimino v. Raymark Industries, Inc. (E.D. Tex. 1989) • Judge Parker’ decision: • Upholds class certification order • Class action fair to Defendants and Plaintiffs • Fairness to Defendants: • Trial plan protects Defendants’ right to a jury trial • Defendants get pre-trial discovery of individual Plaintiffs • Defendants get to contest cases of class representatives: • 11 class representatives • 30 other plaintiffs chosen by both sides • Fairness to Plaintiffs: • cases pending for more than 3 years • Plaintiffs finally get “day in court”

11. Mass Tort Litigation: The Jurisprudential Debate • In re Fibreboard Corp. (5th Cir. 1990) • Appeal of Judge Parker’s class certification • Appellate court reverses class certification • Why? • Defendants’ due process rights violated by proposed trial plan • Defendants’ right to jury trial violated by proposed plan • Appellate court not “comforted” by use of aggregate statistical procedures in employment discrimination and securities cases

12. Mass Tort Litigation: The Jurisprudential Debate • In re Fibreboard Corp. (5th Cir. 1990)(rejecting the proposed asbestos class action): • “We are also uncomfortable with the suggestion that a move from one-on-one “traditional” modes is little more than a move towards modernity. Such traditional ways of proceeding reflect far more than habit. They reflect the very culture of the jury trial and the case and controversy requirement of Article III. It is suggested that the litigating unit is the class and, hence, we have the adversarial engagement or that all are present in a “consolidated” proceeding. But, this begs the very question of whether these 3,031 claimants are sufficiently situated for class treatemnt, it equally begs the question whether they are actually before the court under Fed. R. Civ. P. Rules 23 and 42(b) in any more than a fictional sense. Ultimately, these concerns find expression in defendants’ right to due process.”

13. Mass Tort Litigation: The Jurisprudential Debate • In re Fibreboard Corp. (5th Cir. 1990)(rejecting the proposed asbestos class action): • “We are told that Phase II is the only realistic way of trying these cases, that the difficulties faced by the courts as well as the rights of the class members to have their cases tried cry powerfully for innovation and judicial creativity. The arguments are compelling, but they are better addressed to the representative branches – Congress and the state legislature. The Judicial Branch can offer the trial of lawsuits. It has no power or competence to do more. We are persuaded on reflection that the procedures here called for comprise something other than a trial within our authority. It is called a trial, but it is not.”

14. Mass Tort Litigation: The Jurisprudential Debate • The Jurisprudential Debate in Academic Commentary: • Two opposing views: • Roger H. Trangsrud, Mass Trials in Mass Tort Cases, A Dissent (1989) • Deborah H. Hesnler, Resolving Mass Toxic Torts: Myths and Realities (1989)(response to Roger Trangsrud)

15. Mass Tort Litigation: The Jurisprudential Debate • Roger H. Trangsrud, Mass Trials in Mass Tort Cases, A Dissent (1989): • Questions: • What position does Prof. Trangsrud take regarding the ability to aggegate tort claims into a single consolidated or class action? • What is the theoretical or jurisprudential basis for his view of aggregate litigation?

16. Mass Tort Litigation: The Jurisprudential Debate • Roger H. Trangsrud, Mass Trials in Mass Tort Cases, A Dissent (1989): • Arguments: • Argues against using mass trials to adjudicate mass tort cases • This approach rejects “centuries old tradition” of individual claim autonomy in tort litigation involving substantial personal injury or wrongful death • Mass trials have impact on fairness of such proceedings to individual plaintiffs • Mass trials have impact on relationship of client to his attorney • Mass torts distort role of judge in “coercing” settlements • Mass trials distort the substantive law

17. Mass Tort Litigation: The Jurisprudential Debate • Roger H. Trangsrud, Mass Trials in Mass Tort Cases, A Dissent (1989): • Suggested better approach: • Coordinate and consolidate pretrial discovery • Coordinate and consolidate pretrial motions • Individually try cases in appropriate venue • Trial of many cases will encourage settlement of remaining claims

18. Mass Tort Litigation: The Jurisprudential Debate • Roger H. Trangsrud, Mass Trials in Mass Tort Cases, A Dissent (1989): • Jurisprudential basis for Trangsrud’s position (natural law theory): • “Underlying our tradition of individual claim autonomy in substantial tort cases is the natural law notion that this is an important personal right of the individual. While much less celebrated than other natural rights, such as the right to practice one’s own religion or to think and speak freely, the right to control personally the suit whereby a badly injured persons seeks redress from the alleged tortfeasor has long been valued both here and in England. The responsibility for asserting such a claim rested with the injured individual or his family, and the exercise of the right was protected. It was not the duty of the government or some third party to initiate such a suit, nor could the government or some third party interfere in the prosecution of the action.”

19. Mass Tort Litigation: The Jurisprudential Debate • Questions: • Is Prof. Trangsrud correct? • Is there a natural law right to adjudicate a tort claim only on an individual basis? • Does aggregating tort claims compromise or abridge that natural law right? • Does aggregating claims abridge or impair other important aspects of individual tort litigation?

20. Mass Tort Litigation: The Jurisprudential Debate • Counterpoint: Deborah Hensler, Resolving Mass Toxic Torts: Myths and Realties (1989) • Assumptions of traditional tort model: • Private litigant controls litigation • Intimate contact and consultation between lawyers and clients • Lawyers educate clients, respond to wishes, litigate faithfully and vigorously

21. Mass Tort Litigation: The Jurisprudential Debate • Counterpoint: Deborah Hensler, Resolving Mass Toxic Torts: Myths and Realties (1989) • Opposition to class actions or aggregate litigation: • Will corrode attorney-client relationship • Case is turned over completely to lawyer • Inequity of subjecting all individuals to uniform class treatment • Wholesale settlement results in lower recoveries (damages) • Sanctity of trial by jury, jury trial ensures parties “will be fairly treated, carefully, and with dignity”

22. Mass Tort Litigation: The Jurisprudential Debate • Deborah Hensler, Resolving Mass Toxic Torts: Myths and Realties (1989) • Realities (from empirical research): • Lawyer-client relations are prefunctory and superficial (not intimate) • Locus of control is lawyer, not client • Lawyer educates client to view of legal process that serves lawyer’s interests • Clients often only names to lawyers and court personnel • Actual trials are rarely desired or occur • Actual trial usually only preferred by clients

23. Mass Tort Litigation: The Jurisprudential Debate • Deborah Hensler, Resolving Mass Toxic Torts: Myths and Realties (1989) • Empirical Research of individual tort cases: • 25% never met with lawyer, or only once • 32% talked with lawyer fewer than 3 times • Little opportunity to establish “intimate relationship” with attorney • Lawyers spend modest # of hours on civil cases - median 20 hours • Few litigants viewed themselves as dominant decision-maker • Few litigants felt little or no control over how cases handled • Lawyers gradually educate clients as to lawyer’s views of justice and legal system

24. Mass Tort Litigation: The Jurisprudential Debate • Question: • What are the implications of the empirical research concerning the conduct of individual tort cases for the debate over aggregate mass tort litigation?

25. Mass Tort Litigation: The Jurisprudential Debate • Deborah Hensler, Resolving Mass Toxic Torts: Myths and Realties (1989): • “None of the research described deals with mass toxic cases, and no one has yet surveyed litigants in these cases. However, descriptions of the mass tort litigation process give little reason to believe that the traditional tort approach to such cases provides more interaction between lawyers and clients, more intimate relations between lawyers and clients, or more opportunity for clients rather than lawyers to control the litigation porcess. In fact, the reverse is likely to be true: when lawyers handle cases individually, the already tenuous client relationship described above is attentuated further by the press of the sheer number of claims. More frequently, cases are aggregated informally, despite strictures against such groupings.”

26. Mass Tort Litigation: The Jurisprudential Debate Fine