Democratization of Mass Tort Litigation: Presiding over Mass Tort Litigation to Enhance Participation and Control by the People Whose Claims Are Being Asserted

Article excerpt

Cases raising claims for personal injury, even those presenting similar claims based on the same facts, have to be run by lawyers. There is no other way to provide for fair and efficient progress of cases towards satisfactory resolutions. Providing full and fair information to the plaintiffs for whom such lawsuits were filed is important, and this essay will address how that goal may be accomplished. But the fair and efficient management of a mass tort litigation must be the primary objective of the trial judge. I explore these management themes in a comprehensive manner in Marking the Boundaries of Managerial Judging: The 9/11 Responderá' Tort Litigation, a piece I co-authored with Professors James A. Henderson, Jr. and Aaron D. Twerski.1

However, lawyers have their own needs and concerns that can create powerful and hard-to-check motivations. Their need to finance their cases over several years of hard-fought and expensive litigation creates substantial debts, financed at high compound interest rates.2 Repayment of the loans tends to depend on settlements or recoveries in the lawsuits, the outcomes of which tend to be far from certain.3 These debts create powerful motivations that potentially can interfere with the lawyer's professional obligation to serve clients' interests first and foremost.

In many cases, lawyers assemble large numbers of litigants to represent. These litigants inevitably possess claims of varying merits and varying potential recoveries. The litigants may have differing interests and expectations. For these reasons, representing a mass of litigants may interfere with a lawyer's ability to represent particular litigants. A desire for an early mass settlement may compromise the potential for maximizing individual settlements. Democratization, however desirable intrinsically, is not likely to solve these problems.

I experienced these issues in the 9/11 respiratory injury cases, more than 10,000 in number.4 Most plaintiffs were represented by a single law firm. The claims were alleged in conclusory fashion, which made it difficult to differentiate between claims of lesser and greater merit and lesser and greater severity of injury.5 The conclusory allegations tended to improve the status of weaker claims, but made it more difficult to advance the stronger claims. The allegations also posed obstacles to obtaining early, substantial settlements of the stronger claims. Indeed, a third of the claims proved not to involve any adverse effects from cleanup work at the World Trade Center,6 and these claims remained in the litigation and participated in the mass settlement. It is impossible to know if the presence of these weaker cases affected the claims that were of stronger merit.

I considered it important, as presiding judge, to create procedures to ensure fair and even treatment among the entire span of cases. With the assistance of special masters and with the consent of counsel, I developed discovery proceedings devised to provide full information about each plaintiff in a systematic, reliable, and cost-efficient manner, so that the court and counsel could evaluate the merits and the degree of injury of each case.7 Individual cases then were selected - several by counsel and several by the court - for more intensive discovery through traditional methods, followed by early and firm trial dates. I detailed this process in In re World Trade Center Disaster Site Litigation.8

I had not anticipated a mass settlement, but counsel agreed to one, after discovery and before trial.9 I anticipated that individual cases would settle, and would create values that could be extended to many more cases, and perhaps all cases. The mass settlement provided an overall settlement for all plaintiffs, with different recoveries for different categories of injury.10 The largest individual settlements were provided to plaintiffs who incurred the most severe injuries and whose injuries had the strongest causal relation to the pollutants to which all plaintiffs had been exposed. …