Mass torts: The Windsor decision and considerations for a coordinated defense

Hagan, Patrick J

PATRICK J. HAGAN*

I.

INTRODUCTION

In June of 1997, the United States Supreme Court stood face-to-face with a mass tort action and a complex set of strategies used to remove that tort claim from the federal civil litigation system. In Amchem Products, Inc. v. Windsor,1 the Court found that different classes of potential plaintiffs lumped in a single class action did not receive the full protection of Federal Rule 23 and thereby invalidated a massive nationwide settlement class.

To appreciate this decision and to provide a relatively full background of this civil litigation phenomenon, I discuss mass tort litigation. This article is not an effort to give a complete history of the mass tort phenomenon. Rather, it attempts to give a perspective on the historic rise of this type of litigation model, some of its common factors, and a sense of what may be anticipated. Because different "mass tort" situations evolved independently, there are individual strategies and tactics peculiar to each type.2

II.

HISTORICAL BACKGROUND

As is the case with so many evolutions within the common law, it is hard to locate a beginning for mass tort litigation and it is certainly difficult to predict whether, or when, there will be an end. Certain mass tort claims have resolved over the years, although some revisit from time to time. Many continue to pend in the courts of the United States. A few are presently making their way

*The author wishes to express his appreciation to Lisa Wong, a former associate at Dillingham & Murphy and a 1997 graduate of the University of California, Hastings College of the Law, for her assistance. She is now with Dewey Ballantine, L.L.P. in New York City. toward the determinative stage of whether each deserves the title "mass tort."3

Perhaps the first and one the most famous of the essentially resolved mass tort matters involved a chemical known as "Agent Orange." Suits concerned with that chemical began to spring up in the 1970's, both in state and federal court. They involved claims by American Vietnam veterans for a variety of maladies ultimately attributed to Agent Orange. Because these claims arose while the claimants were in the military, they generally managed to find their way into the federal court system. Using a procedural device available only in federal cases, called the Panel for Multi-District Litigation, these individual lawsuits were transferred and consolidated before the Honorable Jack Weinstein in the United States District Court for the Eastern District of New York. Eventually, a class action settlement was negotiated which allowed opt-outs for those unwilling to accept its terms. Judge Weinstein entered an injunction prohibiting suits against the corporate manufacturers of Agent Orange that followed federal government specifications. A substantial fund was established by the manufacturers to compensate victims of Agent Orange. Judge Weinstein subsequently rendered summary judgment against the opt-outs.4 The Second Circuit Court of Appeals upheld Judge Weinstein's disposition of this matter.5

Subsequent attempts at individual suits in state court have invited removal to federal court, with the injunction upheld as well. Thus, Agent Orange claims were essentially resolved using the multi-district litigation and class action devices.

Another ultimately resolved mass litigation matter involved the Dalkon Shield, which was an intrauterine contraceptive device manufactured by the A.H. Robins Co. That device attained popularity in the early 1970's. From the outset it was medically troubled, yielding miscarriages, intrauterine infections, and other reproductive system disorders. Within a few years individual litigation proliferated. A.H. Robins was insured, but it became unclear whether it had sufficient coverage to carry the company forward. Finally, under the weight of growing litigation and punitive damage judgments, Robins filed for bankruptcy protection. This procedural step ultimately put the matter before the Honorable Robert Mehridge of the Eastern District of Virginia located in Richmond. He utilized the Multi-District Panel to transfer all of the existing federal Dalkon Shield cases to Richmond. He also exercised exclusive federal bankruptcy jurisdiction to bring in the state based claims as well. Creating a single fund, Judge Mehridge was able to group all of these claims and marshal the assets to pay them.6 Because of involvement of a Robins insurer allegedly implicated in the development of the product, a class action ultimately was formulated to assist in augmenting the settlement fund. The claims against Robins itself were subsumed in bankruptcy. However, because the class action implicating the insurer sought a required distribution of the limited settlement fund, a "no opt-out" class was ultimately certified. Judge Mehridge continues to retain control over that class. This resolution was approved, as was the entire bankruptcy/class action settlement process, by the Court of Appeals for the Fourth Circuit.7

Perhaps the most pervasive of all of the mass tort litigation, and certainly the most well known in the legal, corporate and insurance communities, is that involving asbestos. These cases go back to Claude Tomplait and Clarence Borel in the early 1970's in Beaumont, Texas. When the Fifth Circuit Court of Appeals upheld the Bored decision against Fibreboard Corporation, the flood gates opened and bodily injury asbestos litigation began its growth phase.8 Because of the enormous variety of asbestos-containing products and because of the large number of companies engaged in the mining, milling, manufacture and distribution of those products, asbestos bodily injury litigation, unlike that involving Agent Orange or the Dalkon Shield, seemed to know no immediate bounds. Large conglomerates, like Johns-Manville and its associated entities, as well as small companies, such as Unarco and Raybestos-Manhattan, eventually found their way to the bankruptcy courts of the United States.9 More than 250,000 individual asbestos bodily injury claims have been resolved, or are in the process of resolution at this point in time. Bankruptcies resulting from asbestos litigation and the mass settlement funds are projected to continue well into the twenty-first century. They may number another 300,000 before conclusion.

In addition to the huge number of past claims, the pool for future asbestos related disease claims must be recognized. This includes most of the construction labor force in the United States (and potentially elsewhere) in its broadest terms. Any construction worker contracting a lung disease who can establish a prima facie case of some contact with an asbestos-containing product, is a potential candidate for remuneration under the present tort system in many state courts.10

The federal court system eventually appreciated asbestos litigation as a potential cause of unwarranted court congestion. Having rejected three prior applications for multi-district consolidation, in 1991 the Panel on Multi-District Litigation, at the insistence of a number of federal trial judges, ordered the transfer of all federal cases to the United States District Court for the Eastern District of Pennsylvania. Approximately 35,000 suits were promptly consolidated for purposes of settlement and discovery.11 Early in 1993, following several years of negotiation, twenty companies constituting the Center for Claims Resolution ("CCR"), together with certain plaintiffs' attorneys who controlled large blocks of litigation, filed a class action/global settlement suit for all future claims. Judge Charles R. Weiner immediately certified the matter.12 It had two major components. First, it settled all future asbestos bodily injury claims by creating a fund covering the next ten years and provided for limited optouts. Second, through a classic insurance coverage filing, the suit sought to implement the funding of the settlement by the insurance carriers for the twenty companies.

Following disapproval by the Third Circuit Court of Appeals of this settlement class device, the Supreme Court rendered its decision disallowing the class under Rule 23(b)(3).13 It was premised on the ground that the individual class member's claims, as they may have predated the settlement, predominated over the need to protect a seemingly disparate class considered as a whole for settlement purpose. The Court also found under Rule 23(e) that predominance "protects unnamed class `members from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by compromise."'14 The Supreme Court further found that the class plaintiffs did not adequately represent or protect the interest of the class under Rule 23(a)(4). Agreeing with the Court of Appeals, the Supreme Court noted that "named parties with diverse medical conditions sought to act on behalf of a single and giant class rather than on behalf of discrete subclasses."15 The Court concluded, "the settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected.16 The future of a mass resolution of this group of cases is now uncertain. Additionally, other mass tort settlements may require a more stringent review.17

In addition to the bodily injury cases, there has been substantial litigation involving asbestos as a "contaminant" because of products previously installed in buildings throughout the United States. This litigation is generally, although possibly incorrectly, referred to as "asbestos property damage." Owners and occupants of individual public and private buildings initiated it. Most prominent are two major class actions apparently spawned by fear for the welfare of youth. In the early 1980's, an action was filed in the federal court for the Eastern District of Pennsylvania under the subnomine Lancaster School District. This case sought to certify a class action, on behalf of all school districts in the United States, for the abatement of asbestos-containing products in the schools and to recover all attendant costs.18

After a tortured history of class certification, appeal, recertification, challenges to judges and innumerable procedural disputes spanning more than a decade, this lawsuit stands on the threshold of resolution. This massive class action was settled for cash payments approaching $75 million and coupons for new products in the amount of $150 million. Of substantial note are the defendants no longer present to settle, as well as the limited number who remain. Whether this class action vehicle will be satisfactory to the class members remains its greatest test.19

Clemson University and the College of Charleston filed a similar action in 1985 on behalf of all institutions of higher learning.2 Central Wesleyan College also filed a follow-on action the next year, also in South Carolina.2' The initial Clemson class action was dismissed on jurisdictional grounds, and the Central Wesleyan matter was conditionally certified. That certification was upheld by the Fourth Circuit Court of Appeals in 1993.22 This class action is presently pending in an initial discovery phase to test the standing of Central Wesleyan, the conspiracy counts alleged against the defendants, and to determine whether there will be any intervenors to cure the named plaintiffs' standing deficiencies.23

Asbestos lawsuits also spawned substantial insurance coverage litigation. Those tended to be individual, although the most famous is probably the California consolidated asbestos coverage case involving Johns-Manville, Fibreboard, GAF, Armstrong World Industries and Nicolet.24 That suit, in and of itself, spawned substantial, novel rulings and procedures.25

Various pharmaceuticals and medical devices have made their way onto the civil litigation stage constituting mass torts. Perhaps the two most telling instances of pharmaceutical mass tort litigation involve Diethylstilbestrol (DES) and Bendectin. Both of these drugs are significant in that they were involved in dealing with the side effects of pregnancy. DES was taken by mothers to prevent miscarriages. There subsequently evolved a question of whether it might cause uterine cancer to female offspring who were in utero when it was taken. Bendectin was taken by expectant mothers to avoid morning sickness and it stands accused of being a teratogen. DES ultimately led to the "market share" concept as espoused by the California Supreme Court.26 Bendectin spawned the Daubert line of decisions from the United States Supreme Court and the Ninth Circuit Court of Appeals.27 Although a substantial body of appellate law evolved in connection with both of these drugs, there is some question whether they actually rise to the level of a mass tort. Certainly, there have been a substantial number of claims implicating both Bendectin and DES. Yet in the case of DES, there has been no successful attempt at a class action nor a proliferation of individual suits. Bendectin still goes forward very slowly on an individual suit basis.

A more recent mass tort phenomena involves lead. In the 1970's and 1980's, research undertaken by Dr. Herbert Needleman of the University of Pittsburgh determined that low level lead exposure would build up lead concentration in the blood of children and adversely impact their development.28 He also suggested a lowering of their IQs and learning performance, as well as hyperactivity. Regardless of whether Dr. Needleman's epidemiology describing these effects is of the first order, lead exposure, primarily from lead paint, has become a notable follow-on individual litigation phenomenon to asbestos bodily injury claims. For a time this litigation was limited to older East Coast cities, primarily Boston and New York. It since has spread to Chicago, Philadelphia, Baltimore, Washington D.C., Norfolk and New Orleans. Recent events indicate that it will migrate to the western United States by the millennium. The long-term impact of lead litigation is unclear. The ability of manufacturers to withstand this litigation appears to be of the same magnitude as those exposed to asbestos bodily injury litigation. In many instances, landlords are bearing the initial brunt, while suppliers, applicators, and manufacturers may eventually be at risk. It is anticipated that the insurance coverage issues will prove difficult. The magnitude of this litigation, and its potential for growth, might be measured by the fact that a Boston seminar about the subject in May of 1994 was attended by more than five hundred attorneys.29

In addition to the lead paint phenomenon, lead in all of its applications is a substance targeted by the Environmental Protection Agency and a number of environmental activist groups in the United States. Included are the Environmental Defense Fund and the Natural Resources Defense Council. Using California's Proposition 65, a toxic waste initiative passed in 1986, these two environmental litigation groups as well as the California Attorney General have engineered a succession of lawsuits to cause lead to be removed from a wide variety of products. Substantial remuneration from the alleged offenders under California consumer protection statutes was also sought. Targeted products which included lead were crystal, china, foil wrappers for wine bottles, and plumbing.30 Greenpeace recently released a study claiming that lead and cadmium are present in a wide range of children's toys, including the famous "Barbie." 31

One of the most discussed mass torts of recent years is that involving breast implants. Arising just a few years ago on the nation's media scene, breast implant litigation took the United States civil court system by storm. These silicone gel implants were said to fail from defective design or manufacture. Initial jury verdicts in individual cases quickly climbed to the seven-figure level. This litigation was primarily filed in federal court because the breast implants were regulated under the federal Food & Drug Act. Again, the Panel for MultiDistrict Litigation moved to consolidate all matters in a single court. In this instance, all of the cases were transferred to the District Court for the Middle District of Alabama before the Honorable Sam Pointer, one of the primary authors of the Manual for Complex Litigation. Judge Pointer fashioned an optout settlement class action, and ultimately forged a settlement fund in excess of $4 billion. Opt-outs numbered in the thousands. They are said to be the more serious cases. Several have gone to trial in Texas with verdicts again running into seven figures.32 Whether this class device succeeds as a means of curtailing this particular mass tort litigation will depend largely on the ability of the manufacturers and Judge Pointer to fund the opt-outs without negatively impacting the manufacturers whose insurance may be exhausted from the creation of the settlement fund.33

Another potential for mass tort litigation involved electromagnetic radiation exposure. However, this generated very little in the way of successful bodily injury litigation. The sole significant trial was Zuidema v. San Diego Gas & Electric Co., which resulted in a defense verdict in 1993.34 Following a number of successful inverse condemnation cases, the California Public Utilities Commission found the primary jurisdiction of these types of claims rested with the public utilities agency. That decision was approved by the California Supreme Court in San Diego Gas & Electric Co. v. Superior Court.35

III.

MASS TORTS ON THE IMMEDIATE HORIZON

Repetitive stress syndrome cases, particularly carpal tunnel injuries and continuous subclinical trauma to the cervical spine, appear rampant at the workers' compensation level. These injuries are said to be caused by equipment that is not ergonomically friendly. Included are computer keyboards and other devices that cause repeated wear and tear of the same soft tissue in a recurring manner. Whether this particular phenomenon transcends the work place injury category to become a viable mass tort, or a series of viable mass torts, probably will be decided in the not distant future. International Business Machines (IBM), Apple and other PC manufacturers are the targets of a well-funded plaintiffs' bar. At this juncture, these cases are being defended vigorously. Without regard to whether these plaintiffs succeed in the individual trial environment, eventually they probably will opt for some form of mass disposition. It is difficult to predict the future of this potential mass tort litigation.

Most recent on the mass tort scene is tobacco litigation. Individual bodily injury cases have been defended successfully by the cigarette companies over the last several decades. The most procedurally famous of all of these cases to date was Cipollone v. Liggett Group, Inc.,36 arising in New Jersey and ultimately producing an opinion from the United States Supreme Court allowing a limited suit. This was in spite of a defense based on federal preemption by virtue of the printed Surgeon General's warning.

Since then, new attacks have been formulated. Several states, led by their attorneys general, filed individual actions against the cigarette industry to recover money spent in medical and disability payments for their resident tobacco disease victims.37 By 1997, the number of suits of this nature swelled to forty-one.38 San Francisco and thirteen other California cities and counties also sued. Thus far, Mississippi, Florida, and West Virginia have settled their suits with the tobacco companies.39 San Francisco and the thirteen other cities and counties have also settled.40

Another suit by individuals acting on behalf of federal taxpayers has been launched in a federal court in Wichita, Kansas.41 This suit is analogous to those filed by the forty-one state attorneys general. This litigation is in its proliferation phase.

The Honorable Okla Jones II, a federal district judge in New Orleans, certified a class action for all "nicotine-dependent" persons who ever purchased and smoked cigarettes sold by the defendant tobacco companies.42 This may have been the largest class action ever attempted in the federal court system. The plaintiffs sought compensation for injuries resulting from nicotine addiction and alleged numerous theories of liability including fraud, deceit, misrepresentation, and breach of warranty. However, on appeal, the class was decertified.43 The Fifth Circuit Court of Appeals found that the district court made a premature assumption that certification would save judicial resources. It stated that the complex choice of law issues made individual adjudication superior to class action. The court also opined that individual trials were preferable because of a possibility the class action would have to be bifurcated in order to be manageable. Overall, the Fifth Circuit held that the district court abused its discretion by certifying the class because class treatment was not superior to individual suits in this case. State based class actions followed. Under the stress of this barrage of litigation, in June of 1997 tobacco industry representatives met with plaintiffs' attorneys and state attorneys general to discuss a national tobacco settlement. It would resolve state cases and other major class actions for $368 billion to be paid over the next twenty-five years.44 This proposed settlement required Congressional approval. Legislation introduced by Senator McCain of Arizona became embroiled in a tax debate and died in the Senate. Other legislation is expected in the short term. The matter will become increasingly political with 1998 being an election year.

Tobacco litigation of substantial interest is the recent class action result in Florida. Initiated on behalf of a group of over 60,000 former and current flight attendants and their survivors, all of whom were non-smokers, harm from second-hand smoke was alleged. The tobacco companies settled this suit for $300 million. However, none of the class members are to receive any compensation according to the terms of the settlement. Instead, the tobacco industry will use the $300 million to create a research institute to study early detection and treatment of smoking-related diseases. Also, as part of the settlement, the plaintiffs agreed to drop any class action cases and not to seek punitive damages if they sued as individuals. Plaintiffs' counsel, on the other hand, received approximately $50 million in legal fees and costs.

Since that settlement, multiple legal challenges objecting to it have been filed. Objectors are concerned about what will happen to those flight attendants that have been exposed to second-hand smoke, but have not yet developed symptoms. Many flight attendants assumed they were included in the 60,000 member class, but now realize otherwise because they show no signs of a major illness. It is unclear who are actually members of the class, with the plaintiffs' attorneys admitting that the number was only "an educated guess."45

Legal observers expect the next wave in the mass tort assault to surround dexfenfluramine, known as "Redux," as well as a combination of fenfluramine and phentermine, known as "fen-phen" and marketed as "Pondimin." Both are diet drugs recently recalled by the Food and Drug Administration.46 As of September 1997, about one hundred suits have been filed alleging that these drugs caused heart-valve problems, brain damage, and primary pulmonary hypertension. The Multi-District Litigation Panel met on November 21, 1997 to determine if and how the suits filed nationwide might be consolidated. IV.

TYPES OF ACTIONS

Throughout the preceding discussion of the historical background of mass tort litigation, reference was made to a number of distinct types of action. These will be discussed here. These actions range from individual suits to class actions to bankruptcy. The strategy and type of action chosen has a great effect on litigation cost and the eventual survival of the defendant.47

The most common form of action remains the individual lawsuit and its derivative claims. The individual sues for the injury he or she claims to have sustained. If there is a spouse or other relative available, they sue for claims derived from the primary injury. These derivative claims usually embody loss of consortium and are filed as part of a single lawsuit.48

A very common device for dealing with numerous individual suits is consolidation. For federal courts, consolidation arises under Rule 42 of the Federal Rules of Civil Procedure. Most states have an analog to that statute. Consolidations must involve common facts and common law.49 A consolidation should not involve an overly large number of plaintiffs. That caveat notwithstanding, asbestos bodily injury litigation has seen massive consolidations. These have occurred in Texas, Maryland, West Virginia and Mississippi. Perhaps the most famous is that undertaken by the Honorable Robert Parker in the Cimino litigation in the United States District Court for the Eastern District of Texas. In each of these proceedings, the claims consolidated have numbered in the thousands. Since most of them have been resolved by mass settlements, the appellate courts have not decided the constitutional guarantees associated with the defendants' rights.

Multi-District Litigation is an aggregation strategy available only in the federal courts. A number of the matters previously discussed in the historical background, including Agent Orange, Dalkon Shield, asbestos bodily injury, and breast implants have all been certified by the Panel for Multi-District Litigation and transferred from the various federal jurisdictions to a single venue judge who then controls the litigation. As a creature of federal statute and overseen by seven senior judges from the District Courts and Courts of Appeals appointed by the Chief Justice of the United States, the Multi-District Panel referral has gained substantial favor as a docket clearing mechanism for the federal court system. Some analog may exist in a few states for consolidating litigation throughout a given state at a single site.51 On the other hand, some states, for example Maryland,52 have needed legislation, or in the case of a state like West Virginia a supreme court fiat,53 in order to accomplish a statewide mass consolidation similar to the multi-district litigation.

The class action device is most commonly used in the federal court system under Rule 23 of the Federal Rules of Civil Procedure. Most states have an analog to this device, and most of them follow federal precedent in its application.54 Class actions have one distinct advantage over consolidations and multidistrict litigation. More safeguards are available to defendants in a class action than in these other types of proceedings.

Bankruptcy, only available in federal court, and especially Chapter XI for the purposes of corporate reorganization, seems a last resort for the mass tort defendant. A. H. Robins resorted to this strategy because of the Dalkon Shield. Now it no longer functions under its prefiling ownership. Dow Corning has taken this path and it does not appear that it will remain viable, at least not with the same ownership. Chapter XI has been the path for many asbestos defendants. In the end, few equityholders have seen any value returned while the viable corporations have continued in business largely to fund the asbestos victims' claims.

When defendants are forced into dealing with massive plaintiff litigation scenarios, the shear weight of the defense cost and the enormous indemnification potential often augurs for settlement. This is particularly true since vindication of a defendant's rights will occur, if at all, years down the litigation path before uncertain appellate courts in the face of possible eight to ten-figure verdicts. Juxtaposed against this often unpopular notion of unwarranted settlement is the very real proposition that limited assets exist which can be paid toward the settlement of a mass tort before jeopardizing the entire enterprise. Thus, the form of action, whether it be individual, consolidated, or class action may have a substantial strategic impact on the overall strategy and tactics selected by a party in defending mass tort litigation. V.

COORDINATION

Having laid out some of the factors involved in mass tort litigation, we now turn to some of the factors in a coordinated defense. These will include the types of interests that must be considered, the various roles of counsel, and the objectives which may guide the coordinated defense of mass tort litigation.

A. Types Of Interests

From the perspective of defense counsel, the single most important interest served is that of the client. However, there are other interests that must be recognized by both the client and coordinating counsel in evolving their strategy and gaining the necessary cooperation to defend mass tort claims. First, if there is insurance coverage for the mass tort, the client and coordinating counsel must do everything possible to create an ongoing community of interest between the client and the insuring interests. Being able to identify common objectives and to evolve a sound overall strategy to meet those objectives will lead to a relationship between the client and its insurers that will not cause counterproductive acrimony.55

Another key interest to be borne in mind is that of codefendants. Different defendants involved in a given mass tort, particularly at the outset, may view the manner of disposition of individual litigation from different perspectives. Quite often, the initial cost to work up the defense of potential mass litigation will seem staggering. This may seem to suggest a course for the settlement of "a few cases" on a "cost of defense" basis. Especially when the litigation is not quickly identified as a potential mass tort, these settlements may result in a short-term solution which quickly escalates the volume of filings and the amounts paid in settlement. An inappropriate early settlement strategy might be viewed by aggressive counsel as a "blood in the water" inducement for further litigation. Cooperation and attempted coordination among potential codefendants to arrive at common strategies, especially at the outset, may serve to discourage, or at least contain, potential mass tort litigation.

Another factor, which ought not to be discounted, is the plaintiffs' bar. Often vilified by defense interests, plaintiffs' counsel in mass tort litigation generally are extremely intelligent, energetic, resourceful and entrepreneurial.56 A primary concept for dealing with this group of lawyers is the maintenance of what must be referred to as "credibility" on behalf of both coordinating counsel and the client. Credibility can mean many things in terms of complex litigation, but at the very least it must yield a relationship in which plaintiffs' counsel understands that coordinating counsel will be consistent and honest in espousing the interests of the client.

Finally, there is the court system itself. Both federal and state court judges fear mass tort litigaiton because of the invariable "docket clogging" caused by large volumes of individual suits.57 Because of this fear, trial judges usually will agree to some type of procedure to expedite and minimize these claims.58 The results have been consolidations and class actions noted heretofore. Once these steps take place, a defendant begins to lose substantial ability to control its own fortune.

Another possible factor is the American jury. Long considered the strength of the American civil justice system, juries have become suspect when individual cases are tried and seven figure verdicts are returned all too frequently. Considered in the setting of a consolidation, juries become even more potentially dangerous. Certainly, the jury trial results in Texas and Maryland mass consolidations of asbestos bodily injury claims, if carried forward without significant settlements, each would have resulted in judgments in the billion dollar range.59

B. Objectives Of Coordination In Mass Tort Litigation

The initial objective in potential mass tort litigation should be to assure that the potential does not translate to reality. This may require imaginative and stalwart tactics in pursuit of this goal. It may prove costly, and even if it fails, all of the defense interests will appreciate the value of the attempt over time and may profit in the course of the defense to follow.

The assessment of objectives of any client and the interests of other related entities involved in mass tort litigation may vary substantially. For example, a potential defendant may begin to believe that a product previously produced has become "defective" under the evolving common law and may lead to substantial litigation costs. Then both in the long and short term view that defendant may wish to adopt a strategy which will result in the overall minimization of litigation costs while preserving its corporate integrity. Another potential defendant, viewing this same mass tort scenario, might perceive the threatened litigation from the perspective that if it can contain the short term impact of the litigation. Viewed from that perspective, it may believe it can prevent the litigation from becoming a mass tort or that it might maintain itself as a rather minor player as the litigation evolves. If the reader concurs that either view of the same type of litigation in any of the mass tort models set out above is viable, then it follows that different parties can evolve different fundamental objectives resulting in divergent strategies and substantially different tactics.60 In the course of its representation, coordination counsel always must incorporate the long view with regard to the defense of the mass tort litigation. The short view often might lead to appearent cost saving devices that may have the unfortunate side effect of encouraging expanded claims. Flexibility in the overall strategy is important bearing in mind that the United States court systems rarely evolve bodies of litigation that do not change over time.

C. Roles Of Counsel

One or a limited group of attorneys known as "coordination counsel" un dertakes coordination of mass tort litigation in many instances. That counsel may be an outside practitioner, a member of general counsel staff, or a combination. It may be a single individual or more likely a group of individuals operating under the direction of the single individual.61' Coordination counsel, no matter the pedigree, must have the confidence of the client. Hereafter, a number of defense counsel roles involved in the mass tort process are discussed briefly: liaison, lead, local and specialty.

Liaison counsel evolves when there are multiple parties in given litigation. Often each defendant grouping in multiple defendant matters will have liaison counsel. Liaison counsel's functions are generally administrative, as this attorney will deal with plaintiff and codefendant counsel, as well as with the court. Properly undertaken, liaison counsel will serve as little or no roadblock to the interests involved or the defendant-specific substantive defense of the litigation.62

Lead counsel is appointed when multiple parties share sufficient common interests so that one attorney may represent them as a group, without conflict, on substantive matters. Lead counsel is rarely appointed for an entire mass tort defense; rather, it is more usual to have a number appointed and each charged with a particular specialty. Commonly, lead counsel will be appointed to head the trial team, for expert discovery, or for purposes of specific fact discovery. There is often lead counsel for common briefing as well. Substantial cost savings can be achieved through this device.

Local counsel, as the term implies, is the firm or attorney in charge of the case at the trial court level. Generally, local counsel is extraordinarily competent, but will not have had as much experience or expertise in dealing with the particular type of mass tort as coordinating or lead counsel. In some unfortunate instances, local counsel is treated as little more than a conduit to the local court. Other times, local counsel plays a significant role in the outcome especially where an aggressive defense is undertaken.

Finally, there is specialty counsel. These are attorneys who have special areas of practice, which might include bankruptcy, constitutional law, class action or appellate expertise.

Any law firm may encompass more than one of the roles of counsel noted above. Some individuals may perform more than one function. However, first and foremost in the coordination of mass tort litigation is the overriding concern that all counsel must speak with a common voice.

VI.

CONCLUSION

Mass tort litigation continues to cause substantial expense to the economy of the United States. Certainly plaintiffs' counsel would argue that the compensation of victims for injury caused by defective products is never unwarranted and is a shining beacon for the American system of jurisprudence. Viewed from the standpoint of economic reality to the American business community and those who are impacted by it, this type of litigation must be seen as a substantial cost of doing business. It adds to the cost of products through insurance or direct payments for defense and indemnity. It imperils the ability of American business to compete in the global market.63

The Supreme Court's decision in Windsor causes yet another series of concerns. Can claims of potential future plaintiffs be fairly resolved when they are unknown? Is proactive use of the class device fair? How will these mass resolutions be reviewed in the future? Should Windsor be read as extending beyond Rule 23 to other types of settlement models?

Will the flight attendant/tobacco settlement in Florida draw eventual judicial rejection, criticism, or praise? Perhaps federal tort reform will provide salvation for this dilemma. In the interim, only a staunch defense and a careful strategy formulation will ultimately prevail under existing United States common law for mass tort defendants. Whatever the approach, mass tort litigation is a reality with which American enterprise must come to grips.

1_ U.S. _,17 S. Ct. 2231 (1997).

2The reader should bear in mind that this paper is written by counsel who basically has spent his career defending litigation.

3 Whether or not each area of tort law described herein actually constitutes a mass tort probably is open to conjecture. The cited examples are solely for the purpose of illumination, and the list is not intended to be all-inclusive.

4In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223,1267 (E.D.N.Y.1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

5In re Agent Orange Product Liability Litigation, 818 F.2d 145 (2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988).

6In re A.H. Robins Co., 88 Bnkr. 742 (E.D. Va. 1985); the settlement process on these claims is ongoing.

7A.H. Robins Co. v. Piccinin 788 F.2d 994 (4th Cir. 1986), cert. denied, 479 U.S. 876 (1986).

8Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (Sth Cir. 1973), cert. denied, 419 U.S. 869 (1974).

9These bankruptcies in and of themselves involved substantial interplay with insurance assets and class actions, as well the creation of funds for the asbestos victims. The Johns-Manville bodily injury trust itself appeared to become insolvent shortly after it was certified and put in place. It has been restored under the guidance of the Honorable Jack Weinstein, and this solution was approved by the Second Circuit under the subnomine Findley v. Laughead, 27 F.3d 48 (2d Cir. 1994).

10Recent publicity in the United Kingdom on mesothelioma may auger a major onset of this litigation there as well.

11These transfers and the "MDL process" itself effectuated a stay of all of these matters.

12This action was initially referred to as Carlough v. ACandS. Mr. Carlough eventually came under some political attack, and before his death, was replaced as the lead plaintiff by a Mr. Georgine, creating the subnomine under which the case is presently pending in the Eastern District of Pennsylvania.

13Amchem Products, Inc. v. Windsor, _ U.S. _, 117 S. Ct. 2231, (1997).

14 Id. at 2249 (citations omitted).

15I d. at 2251.

16 Id.

17 Ethics are an entirely different issue, not discussed here. This topic will surely be reviewed in scholarly papers.

18Ultimately, two other suits were filed and consolidated in Philadelphia. These were brought by the Barnwell School District of South Carolina and the Memphis, Tennessee and Napa, California school districts. The entire matter is referred to presently as the Asbestos School Litigation

19At the time this article issues, the U.S. District Court has put out three calls for claimants to come forward to utilize the settlement fund, primarily consisting of coupons. Coverage of the results has been sparse.

20Clemson University and the College of Charleston v. W.R. Grace & Co., No. 2:86-20552 (D. S.C. Charleston Div., Aug. 1, 1986).

21"Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir. 1993).

221d.

23There have been a number of settlements in this case; however, no dollar amounts have been disclosed except that of the bankrupt National Gypsum for $20 million.

24Johns-Manville and Nicolet never got to judgment because they both filed bankruptcy. Nonetheless, substantial settlements for all 5 companies came out of this litigation.

25Armstrong World Indus. v. Aetna Casualty & Sur. Co., 52 Cal. Rptr.2d 690 (Ct. App. 1996) [approving the opinions of the trial judge, the Honorable Ira Brown].

26Sindell v. Abbott Labs., 607 P.2d 924 (Cal.), cert. denied, 449 U.S. 912 (1980).

27Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This decision was interpreted further by the Ninth Circuit Court of Appeals in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

28Herbert L. Needleman et al., Deficits in Psychologic and Classroom Performance of Children with Elevated Lead Levels, NEW ENGLAND J. MED., Mar. 29,1979 at 689 (1979); Herbert L. Needleman & Philip J. Landrigan, The Health Effects of Low Level Exposure to Lead, 2 ANNUAL REV. PUB. HEALTH 277 (1981).

29This seminar was sponsored by the mass tort publisher, Andrews, and no attempt was made to categorize whether the attorneys who attended were plaintiffs' or defense.

30 In 1986, the United States Congress enacted amendments to the Safe Drinking Water Act, 42 U.S.C. 300f - 300j-26 (1998), including inter alia, that a product is deemed "lead free" if it is a plumbing fixture that contains less than 8% lead as an ingredient.

31GREENPEACE TOXICS REPORT, Lead and Cadmium in Vinyl Children's Products (Oct. 13, 1997).

32 It should also be noted that a number of trials have resulted in defense verdicts.

33 Following the Bankruptcy of Dow Corning, the class matter was tentatively settled for $3.2 billion. Thomas M. Burton, Dow Corning, Implant Plaintiffs in Accord, WALL ST. J. July 8, 1998, at A3.

34 San Diego Gas & Elect. Co. v. Superior Court, 920 P.2d 669 (Cal. 1996).

35920 P.2d 669 (Cal. 1996).

36505 U.S. 504 (1992). The scope of that decision is too sweeping for consideration in this article.

37'To date, the states in their publicity releases have not been especially forthcoming about the source of their payments - federal funds or taxpayer - and whether the resulting collections will be remitted to the primary payers.

38State is Latest to Sue Tobacco Industry, CHI. TRIB., Aug. 31, 1997, at C12.

39Doug Levy, Florida Settles Tobacco Suit, U.S.A. TODAY, Aug. 26, 1997.

40Jim Doyle, Joe Camel is History in California, S.F. CHRONICLE, Sept. 9, 1997, at A3.

41 Henry Weinstein, Tobacco Industry Target of Taxpayer Suits, L.A. TIMES, Oct. 17, 1997, at D3.

42 Castano v. American Tobacco, 160 F.R.D. 544 (E.D. La. 1995).

43Castano v. American Tobacco, 84 F.3d 734 (5th Cir. 1996).

44William Goldschlag, Cigarette Deal Kicking Butts, N.Y. DAILY NEWS, June 21, 1997, at 7.

45 Ann Davis & Milo Geyelin, Issues of Eligibility Remain Hazy in Secondhand Smoke Settlement, WALL ST. J., Oct. 16, 1997, at B8.

46Laura Johannes, Legal Beat: Lawyers Prepare for Deluge of Diet Drug Suits, N.Y. TIMES, Sept. 17, 1997, at B 1.

47This choice, however, may not be at the discretion of the defendant. See the discussion of varying interests in section V. infra.

48Many of the jurisdictions in the United States do not encompass wrongful death as part of a living claim. Thus, there may be multiple suits stemming from the same alleged wrongdoing, both for claims sustained while living, then for death. Mass tort cases settlements usually resolve all issues in the case by a single release.

49This device is favored by plaintiffs' counsel because it streamlines their preparation. The courts like it for docket clearing purpose.

50This case resulted in the Aherne settlement remanded by the U.S. Supreme Court to the Fifth Circuit for reconsideration in light of Windsor, _ U.S. _, 117 S. Ct. 2231 (1997), massive settlements by other defendants, and a 8-9 figure jury award against Pittsburg Corning Corporation on a separate pending appeal, Belton v. Fibreboard Corp., 724 F.2d SOO (5th Cir. 1984).

51California under its coordination statutes is one of these states. CAL. CIV. PROC. CODE 403-404 (West 1998); CAL. RULES OF COURT 1500-1550 (1998).

52See, e.g., ACandS, Inc. v. Godwin, 667 A.2d 116, 120 n.2 (Md. 1995) (Maryland Rule 2327 was amended in 1990 by adding subsection (D), permitting transfer for a consolidation based upon prevalence of issues in cases pending in different jurisdictions).

53See, e.g., State v. MacQueen, 479 S.E.2d 300 (W.Va. 1996) (the court approved the trial court's consolidation plan and recommended its use by all parties). 54This article does not permit a discussion of the types of class actions or legal mechanics underpinning each.

55It is suggested that where the insurance carrier and policyholder are at odds in the mass tort setting, unfortunate results may occur. Not the least of which is the plaintiffs' suit against the policyholder, resulting in a settlement and assignment. This type of device ultimately works to the detriment of both the policyholder and the insurance carrier. Another example encompasses open coverage litigation filings which can become available to plaintiff counsel for use against the defense interests.

56The amount of expertise and wealth brought to this litigation by an accomplished plaintiffs' firm cannot be undervalued. An example of these attorneys is Peter Angelos of Baltimore, Maryland, who built his practice as a labor lawyer and now heads up the ownership interest of the Baltimore Orioles major league baseball team while also participating in a group which brought a professional football franchise back to the city of Baltimore. Another is Ronald Motley of Charleston, South Carolina, who was a prime mover in the global tobacco settlement.

57Whether or not the dockets actually become clogged in mass tort litigation is a more interesting question. Very few courts actually appear to attempt to process any of the mass tort litigation on an individual case basis. Rather, they tend to create some type of streamlined system, assign the cases to one or two judges, and the rest of the civil justice system moves forward. One must remember that the great bulk of the United States judiciary is tied up dealing with its criminal docket.

58Another factor may well be the American public's intense dislike for confronting negatives. Many non-Americans view Americans as excessively preoccupied with health concerns and generally cancerphobic as a group. This phenomenon may result in a judicial need to "...put [the mass tort] behind us."

59In the breast implant litigation, numerous individual cases have resulted in 7-figure verdicts. But the MDL process and consolidations have not saved Dow-Corning from Chapter I 1.

60This is one of the reasons that coordination among co-defendants is mentioned above. Failure to coordinate overall litigation objectives may result in one defendant's misdirected actions converting a scenario which is preventable into a mass tort.

61Primary among the duties of coordination counsel is assuring consistency in the various jurisdictions throughout the course of the litigation.

62 Joint funding for liaison counsel is unusual.

63Patrick J. Hagan, et al., Totalling Up the Costs of Asbestos Litigation: Guess Who Will Pay the Price, 9 TEMP. ENVTL. LAW & TECH. J. 1 (1990).

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