Tuesday, September 4, 2007
Today's New York Times contains a front-page article about the 9/11 tort litigation, offering an interesting description of the plaintiffs as well as news about upcoming trials before Judge Alvin Hellerstein in the Southern District of New York.
Perhaps the most striking feature of the 9/11 litigation is the self-selected nature of the plaintiff group. Each of these plaintiffs, in contrast to the vast majority of 9/11 victims' families, declined the compensation offered by the federal September 11th Victim Compensation Fund. By passing up guaranteed and generous compensation and electing to sue defendants such as American Airlines, United Airlines, Boeing, and airline security companies, these plaintiffs demonstrated an uncommonly strong desire to impose accountability through a public process.
The nature of these plaintiffs -- reporter Anemona Hartocollis calls them an "angry, stubborn, sorrowful and stalwart group" -- makes the court's procedural choice about the upcoming trials particularly surprising. Judge Hellerstein has set a first trial date of Sept. 24, and the Times describes the trial process as follows:
In a reversal of the usual legal procedure, Judge Hellerstein has ordered six trials for damages to take place before any trial for liability, in the hope, he said, that both sides may use those figures as a road map toward settlement.
In other words, the court plans to conduct bellwether trials using reverse bifurcation. It is not uncommon in mass torts for judges to use bellwether trials to provide the parties sufficient information about likely outcomes to enable settlement. Nor is reverse bifurcation rare in mass torts. "Reverse bifurcation" refers to phased trials in which damages are tried before liability. They have proved useful in asbestos litigation where liability was not seriously contested and where verdicts on individual damages could produce settlements. Reverse bifurcation also was used in the Prempro litigation.
I have to wonder, however, whether either bellwether trials or reverse bifurcation makes sense for lawsuits involving the September 11 tragedy. If these plaintiffs were looking for compensation, the Victim Compensation Fund offered a more appealing option than litigation with its risks, costs, and delays. Although the Times article emphasizes that many of these plaintiffs would have received awards at the lower end of the fund's payout scale, the fund nonetheless offered guaranteed payments in sharp contrast with the uncertainties of litigation. Those who opted for litigation presumably are seeking something more. If they are seeking their day in court, the majority of the plaintiffs may be left unsatisfied by bellwether trials that allow only the bellwether plaintiffs to tell their stories in a public forum. Moreover, even the bellwether plaintiffs may be unsatisfied by a reverse-bifurcated phased trial process that allows them to describe their own grief but gives them no opportunity to hold the defendants accountable. If I am correct about what distinguishes these plaintiffs from the vast majority of the victims' families, then Judge Hellerstein may find that phased bellwether trials -- often effective devices for encouraging mass tort settlements -- do less to promote settlement in the uncommon context of the 9/11 litigation.