TortsProf Blog

Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

2009 Kansas Law Review Symposium
Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

October 30, 2009
Green Hall, 1535 West 15th Street, Lawrence, Kansas 66045

This Symposium explores the state of aggregate justice one decade after the Supreme Court issued guidance on the boundaries and meaning of the federal class action rule in Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).  While the complexities of mass litigation and the demand for aggregate solutions persist, the world hardly has remained static since those decisions:   Federal Rule 23 itself has been amended, Congress has enacted the Class Action Fairness Act and, most recently, the American Law Institute has promulgated its Principles of Aggregate Litigation.  And beyond those obvious game-changers lie more subtle trends and complications. 

The renowned set of speakers participating in the Symposium will reflect on the lingering impact of Amchem and Ortiz.  They will address timely and intriguing topics such as the ethical challenges inherent in mass settlements, the enduring vitality of the punitive damages class action, the empirical evidence of a shift from federal mass tort class actions to multidistrict litigation, the availability of collateral attack based on the adequacy of class representation, the impact of CAFA on state class actions, the disparities between federal and state class actions, and the very nature of cohesiveness in litigation.

Speakers

Elizabeth Chamblee Burch, Assistant Professor of Law, Florida State University College of Law:  “Aggregation, Community, and the Line Between”

   

Howard M. Erichson, Professor of Law, Fordham University School of Law: “The Trouble with Defendants’ Insistence on Comprehensive Settlements”

     

Steven S. Gensler, Welcome D. and W. DeVier Pierson Professor of Law, University of Oklahoma College of Law: “The Other CAFA Effect: State-Court Class Actions after the Resettlement Plan”

 

Laura J. Hines, Professor of Law, University of Kansas School of Law: “The State of State Class Actions”

 

Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy, University of Texas School of Law:  “Nine Lives: The Punitive Damage Class”

 

Tom Willging, Senior Researcher, Federal Judicial Center: “From Classes to Multidistrict Consolidations: Documenting Some Shifts in Aggregate Mass Tort Litigation after Ortiz”

 

Patrick Woolley, Beck, Redden & Secrest Professor, University of Texas School of Law: "The ALI and the Adequate Representation Requirement”

Attendance is free and no reservations are required. CLE credit will be offered at this event pending approval.

For more information, please contact Symposium Editor Shane McCall: shane@ku.edu.

You also can download a copy of the symposium brochure for more info.

 

- SBS  

Personal Injury Roundup No. 55 (10/23/09)

Happy Fall to all our readers. . . here's what happened this lovely fall week in the world of torts. 

Reform, Legislation, Policy

• FDA issues a "letter to industry" that the agency will take enforcement action aginst false or misleading package information (such as implied nutrient claims).  (Food Law Prof, FDA Law Blog, ABC News, WaPo) 
• Committee action on OSHA nominee postponed.  (Point of Law)
• GAO finds FDA slow in banning researchers convicted of fraud.  (NY Times, Pharmalot)
• Bi-partisan support for bill that would give FDA new powers over food supply.  (LA Times)
• Senators introduce Dairy Country of Origin Labeling Act.  (Supermarket News)

New Lawsuits

• MDL created for Zicam lawsuits.  (Mass Tort Defense)
• 200 patients sue Cedar Sinai over excessive radiation exposure.  (Daily Breeze, About Lawsuits)

Trials, Settlements and Other Ends

• California federal district court dimisses putative consumer fraud class action concerning defective Sears washing machines.  (Mass Tort Defense)
• Jury awards $105 million to NYC in Exxon MTBE case.  (Point of Law, About Lawsuits)
• Defamation suit against alleged Autoadmit harassers settles.  (Brian Leiter, ABA Journal)
• Defamation suit against Target settles.  (Turkewitz)

Appeals

• Alabama Supreme Court reverses multi-million dollar fraud judgment against drug companies.  (TortsProf)
• Massachusetts Supreme Court recognizes medical monitoring cuase of action. (TortsProf, Drug & Device, Point of Law)
• Maryland Court of Appeals bars expert testimony in med-mal case because expert spent more than 20% of his time just testifying.  (Bernabe)
• Fifth Circuit allows suit by Katrina victims alleging the defendant oil and coal companies created greenhouse gasses, which caused global warming, which then caused a rise in sea levels, adding to Hurricane Katrina’s ferocity. (WSJ Law Blog, Russell Jackson, ABA Journal)

Miscellaneous

• First ever contest at Consumer Class Actions and Mass Torts Blog - there's even a prize. 

--SBS

Monday's Guest Blogger: Adam Scales

Adam F. Scales is an Associate Professor of Law at Washington & Lee University School of Law.  He graduated, Phi Beta Kappa, with a B.A. from the University of Massachusetts in 1991 and received his J.D. from the University of Michigan in 1993.  Professor Scales was admitted to practice in Minnesota; he served as an associate at Faegre & Benson in Minneapolis during 1994-95.  He was a law clerk to Judge Michael J. Davis and Judge David S. Doty at the U.S. District Court for the District of Minnesota in 1996.  In 1996-97, he clerked for Judge Robert G. Renner, Senior U.S. District Judge for the District of Minnesota. Professor Scales began his career in the academy as Assistant Professor of Law, Washington & Lee University in 1997, a position he held until he was promoted to Associate Professor in 2003.  He has served as Visiting Professor of Law at the University of Connecticut School of Law, as well as Chair of the Association of American Law Schools Section on Insurance Law.

Professor Scales's scholarship focuses on insurance law.  He has been a national commentator on topics such as a market in tort claims, insurance litigation in the wake of Hurricane Katrina, the settlement of the Virginia Tech massacre claims, and the crash of AIG.

--CJR

AL: Pharmaceutical Companies Did NOT Cause State to Over-Reimburse

On Friday, the Alabama Supreme Court reversed multi-million dollar trial-court judgments against pharmaceutical companies that had allegedly caused the state to over-reimburse pharmacies and physicians for the medicines they provided to Medicaid patients.  Even though the pharmaceutical companies were not directly reimbursed, it was alleged that they received indirect benefits by boosting their market share.  The court concluded:

The State failed to produce substantial evidence that it reasonably relied on the misrepresentations and/or fraudulent suppression it alleged AstraZeneca, GSK, and Novartis engaged in in these cases.

A copy of the opinion (pdf) is here:  Download GSK Full Opinion[1].  

This is another case in which a state AG used outside counsel to sue an industry for a violation based in tort law.  This decision comes as the National Association of Attorneys General is considering whether to place limits on the ability of a state AG to hire outside counsel in search of funds for the state.

Thanks to Mark Behrens for the tip.

--CJR 

Massachusetts Recognizes Medical Monitoring Cause of Action

On Monday, the Supreme Judicial Court of Massachusetts recognized medical monitoring as a viable cause of action in the Commonwealth of Massachusetts.  The SoL is governed by the discovery rule.  The opinion in Donovan v. Philip Morris USA [pdf] is here:  Download Donovan Decision[1]. 

Beck & Herrmann analyze the decision here.

--CJR 

Guest Blogger Victor Schwartz on "A Government Appointed Independent Commission on Judicial Reform Is Considering Establishing a Right of Appeal in West Virginia: It Should Be Done"

Today, we have a special guest blogger, Victor Schwartz, who, among other notable accomplishments, is one of the authors of the widely-used torts casebook, Prosser, Wade & Schwartz's Torts.

* * *

Recently, I responded affirmatively to the very gracious invitation of Carte Goodwin, Chairman of West Virginia Governor Joe Manchin’s newly created Independent Commission on Judicial Reform, to testify about the need for an intermediate appellate court in the state of West Virginia.

We had written about the need for such a court in a West Virginia Law Review article, West Virginia As A Judicial Hellhole™: Why Businesses Fear Litigating In State Courts, 111 West Virginia Law Review 757 (2009).

Trial judges’ decisions in West Virginia are highly unlikely to be subject to appellate court review.  There is no intermediate court of appeals.  The states highest court, the Supreme Court of Appeals, requires that three of its five Justices agree for the Court to take a case.  In most cases, the Court declines to do so.  West Virginia is the only state where this is true.  Judges are human beings, like the rest of us.  We all can benefit from having someone review our work.  I know that I do so in my practice.

The Independent Commission’s members who are considering whether some form of appellate review should be established in West Virginia are highly respected persons within the West Virginia legal community and include the Dean of West Virginia Law School, Joyce McConnell.

In my judgment, the Commission is fair and balanced.

Most witnesses who testified before the Independent Commission were local practitioners.  A very effective witness who testified in favor of establishing an intermediate appellate court was an attorney named Mark Sadd with the firm Louis Glasser Kayce and Rowans.  He proposed a single intermediate court of appeals with nine judges that would preside in rotating panels of three.  Mr. Sadd testified that such a court should grant a right of first appeal in most cases.  Mr. Sadd indicated that the creation of such a court would bring about both the reality and perception of justice in the state.  He submitted an extensive paper on the topic derived from his book chapter in The Rule of Law: Perspectives on Legal and Judicial Reform in West Virginia.

Also testifying was Jack Rogers, Executive Director of the Public Defender Unit in this state.  He stressed the need for intermediate appellate court review in criminal cases.  He said that the state’s highest court denied appeal in almost five out of six cases.  His office had data showing that in 75% of life in prison cases, an appeal was denied.

The only other “out of state witness” other than myself who testified was Michael D. Evans, the Oklahoma Administrative Director of the Courts.  Mr. Evans described the Oklahoma system of appellate review and how it had worked effectively in his state.

A local West Virginia Worker Compensation Board of Review Official, Rita Helmick, testified that the state’s Supreme Court of Appeals is overwhelmed with worker compensation cases and they would be better handled by a specialized court.

The witness for the state’s Association of Justice (plaintiffs’ lawyers) testified that the West Virginia trial judges rendered justice, and if they did not, such action was corrected by the state’s higher court.  My testimony gave examples that suggested that this was an overly optimistic assessment of West Virginia jurisprudence.

One of the practical issues that stand in the way of establishing broad appellate review of trial court decisions in West Virginia is cost.  In that regard, Mike McKowen, the Director of Revenue of the state, estimated that the creation of an intermediate court of appeal would have an annual cost of approximately $7.8 million.  This would include salaries, rent, and all related expenses.  He proposed alternative ways this revenue could be created, including filing fees, or additional tax on cigarettes.  Clients with whom I have worked would be glad to pay a filing fee if there were an appeal as a right in West Virginia.  If a party were successful on appeal, basic fairness suggests that the cost of the fee should be shifted to the losing party.

In my testimony, I showed why:

• West Virginia’s lack of appellate is a major concern for those who might consider establishing a place of business in the state;
• The absence of review has clearly resulted in the denial of justice to defendants.  Specifics were provided, some included: 

o    A $405 million verdict, including $270 million in punitive damages, that found two major natural gas suppliers – Chesapeake Energy and NiSource, Inc. – liable for underpaying landowners under a royalties contract.  No appellate review.

o    A $100 million punitive damages award against Massey Energy for a coal shipment dispute with Wheeling-Pittsburg Steel.  No appellate review.

• The denial of appellate review of punitive damages raises serious issues under the Constitution of the United States;
• West Virginia is the only state in the United States where there is no right to appeal on the merits of a case;
• The need for an intermediate appellate court is even greater now than in 1998 when an earlier Commission recommended an intermediate court of appeals.  Specifics were provided to the Commission.

The Commissioners asked constructive and helpful questions.  Some individual members asked additional questions after the formal portion was over.

A right of appeal could be established by requiring the Supreme Judicial Court of Appeals to hear all cases on the merits, but the Court would be overwhelmed by such a requirement.  Additional “judge power” is needed.  I am hopeful that the Independent Commission will seek justice and recommend to the Governor and legislature that the state establishes an intermediate court of appeals.

In informal discussions with some of the trial judges who were present, they suggested that an automatic right of appeal in all cases might be too costly and unmanageable.  They may be right.  Certainly, an appeal should be a right in civil cases where the amounts of damages are more than $100,000 and in any case, where punitive damages are awarded.

The right to appeal a trial court decision is a fundamental part of our system of justice.  Governor Manchin is to be commended for establishing a mechanism, The Independent Judicial Reform Commission, as an excellent vehicle to establish this basic right in West Virginia.

- Victor E. Schwartz
Chair, Public Policy Group 
Shook Hardy & Bacon, L.L.P.

Guest Blogger Martha Chamallas: Critical Torts Theory and the Measure of Injury

If you are not a torts professor, you might think it odd that the two approaches that currently dominate tort theory are “law and economics” and “corrective justice.”  Although there are major differences in the two approaches -- with “law and economics” fixed on efficiency and deterrence, while “corrective justice” is more concerned with fairness to the parties – they certainly don’t represent opposite ends of the political spectrum. Instead, the L&E movement is still heavily dominated by conservative thinkers, while corrective justice has no discernible political orientation. What is striking about this state of affairs is the seeming absence of critical theory, the other intellectual powerhouse that is now so firmly established outside the legal academy.

 

It’s not that there isn’t a body of critical torts scholarship. Since Richard Delgado first published Words that Wound: A Tort Action for Racial Insults, Epithets and Name Calling in 1982, there has been a steady stream of torts pieces inspired by feminism, critical race theory and postmodernism. Often, however, this work gets coded only as “critical theory” or “feminism” and does not seem to make a dent in what is regarded as tort theory. I was disappointed to see that John Goldberg simply left out critical theory altogether in his formidable article on Twentieth-Century Tort Theory (2003), stating in a footnote this was not a “judgment of the merits of the omitted scholarship,” but simply reflected his decision “to focus on theories that have set the terms of ‘mainstream’ debate among tort scholars.” John also devoted only 3 out of 64 pages to what he called “social justice theory” where he discussed writings by Richard Abel, Anita Bernstein, Carl Bogus, Thomas Koenig, and Michael Rustad.  Is that really a full description of the contemporary progressive voice in American torts scholarship? (As you can guess, I don’t think so.)

 

This skewing of tort theory to the Right has had consequences. The dominant tort theories pay virtually no attention to race or gender or other dimensions of personal identity, while those topics are highly developed in critical theory, as evidenced by the proliferation of critical approaches that emphasize one or more “outsider” identity, such as critical race theory, Lat Crit theory or queer theory. In our new book, The Measure of Injury: Race, Gender and Tort Law, Jennifer Wriggins and I have tried to connect critical theory more closely to tort law by exploring how race and gender have shaped contemporary U.S. tort law – from the types of injuries recognized, to judgments about causation, to the valuation of injuries. (the book is scheduled for publication in May 2010 from NYU Press)

 

Our book is organized like a conventional torts treatise, with chapters on intentional torts, negligence, causation and damages, framed by chapters on tort theory and tort history. It is not your grandmother’s treatise, however, because we concentrate on those areas of tort law in which considerations of gender and race have been most salient, such as intentional tort claims for workplace harassment and domestic violence, negligence claims for emotional distress, lead paint and wrongful birth litigation, and the calculation of economic damages. We also theorize about the various ways that considerations of gender and race find their way into tort law, even though tort doctrine is facially gender and race-neutral. The main ingredients of our critical approach come from feminism, critical theory, and cognitive psychology. But like all good torts professors, our point of departure is the new Restatement (Third) of Torts because that endeavor still represents the mainstream “torts establishment.”  (and btw, it is a very impressive and useful document)

 

We noticed that the Torts Restatements have evolved, if ever so slowly. In the beginning, the individual of tort law was an abstraction, disembodied, with no race or gender, who seemed to live outside of society. This creature had no name and appeared in the examples of the First and Second Restatement of Torts as simply A, B, or C. Today, however, most courts and torts scholars acknowledge that tort law is not autonomous or self-contained and they realize that tort doctrines are not simply abstract principles, but rules that operate in social context. Perhaps in recognition of this shift, the Third Restatement now provides first names for the hypothetical individuals used in its examples of black letter rules, subtly introducing gender into some scenarios.  And sometimes the gendered nature of the tort appears quite prominently, even if the Reporters may not have been fully aware of this feature of the doctrine. For example, by my count, 10 of the 13 illustrations in the commentary to Section 45 dealing with the tort of intentional infliction of emotional distress deal with misconduct implicating sexual or reproductive behavior, ranging from a stepfather who sexually abuses his stepdaughter, to the inappropriate touching of preschooler, to a police officer who stalks a woman with whom he is obsessed. And in “direct victim” negligent infliction of emotional distress cases under Section 46, there is a similar preoccupation with sexual exploitation and reproduction, including claims against doctors for having sex with their patients under the guise of therapy and scores of cases brought by women who suffer emotional distress from stillbirths, miscarriages, and sterilizations caused by physician negligence.

 

So how has tort law dealt with these and other gender-related claims? How should it? One major theme of our book is the degree to which courts have allowed principles and norms from constitutional law and statutory civil rights law to migrate into torts. Currently, the case law is marked by ambivalence and lack of uniformity.

Many states, for example, are very reluctant to declare that workplace sexual or racial harassment is “outrageous” conduct and virtually rule out recovery for intentional infliction of emotional distress in such cases. A minority of states, however, have imported concepts from Title VII hostile environment law to provide a basis for tort recovery and treat the racial or sexual character of the harasser’s conduct as a marker of “outrageousness.”  Likewise, several states still refuse to allow a claim for negligent infliction absent proof of a “physical manifestation” of the injury. Other courts, however, have cited statutes against sexual exploitation and constitutional rulings protecting a women’s right to procreative choice as a reason for imposing a duty a due care when a defendant’s conduct impairs a plaintiff’s interest in sexual autonomy or reproduction. And most directly, many states still allow experts and juries to calculate a victim’s loss of future earnings potential on the basis of gender or race-based tables that dramatically lower awards for women and minority men. In the recent Staten Island ferry crash case, however, Judge Weinstein held that the use of race-based tables to calculate tort damages was unconstitutional on equal protection and due process grounds. (McMillian v. City of New York, 253 F. R. D. 247 (E.D.N.Y. 2008). His ruling went a step further than Kenneth Feinberg who had earlier rejected the use of female-only tables on public policy grounds in administering the September 11 Victim Compensation Fund. 

 

Our book makes the case for increasing and accelerating the migration of civil rights and constitutional principles into tort law in a self-conscious effort to weave gender and race equality into basic tort principles. We argue that the tort concept of “outrageousness” ought to be expanded to cover discriminatory harassment and that courts should change the dominant (but outmoded) view of what is regarded as an actionable affront to dignity. With respect to negligent infliction claims, we propose that courts impose a duty of due care to protect against emotional distress in cases that implicate a plaintiff’s interest in sexual integrity or reproductive rights. Our justification for giving priority to such claims is that they affect fundamental constitutional rights and important norms of liberty and equality. And we push for the rejection of gender and race-based tables to calculate damages – and for the adoption of blended tables -- noting that the Constitution prohibits the use of explicit gender and race-based classifications which serve to reinforce historic patterns of social inequality.    

 

These proposals have gained some sustenance from developments outside the U.S. In 2005, for example, the Israeli Supreme Court relied on considerations of equality and social justice to reject the use of gender and ethnic-based statistics to calculate a damages award for an Arab girl from a poor village who was injured in a road accident when she was five months old. The defendant in that case contended that women living in the child’s village generally were not employed outside the home and sought to lower damages based on these local conditions. The Israeli Supreme Court disagreed and concluded that the appropriate method for computing future loss of earnings should be based on tables for the average wage throughout the country. The Court made the significant determination that an award of tort damages should not simply return the tort victim to the status quo ante, but to a “just and fair” status that does not reproduce past inequalities among social groups. (Migdal Ins. v. Rim Abu Hanna – I hope my translation of the opinion is correct! The Israeli Supreme Court does not translate its opinions into English.)

 

Early on in the project, we realized that our critical approach to tort law was not a unified theory of torts. And it is worth mentioning that our racial and gender lens on tort law does not mean that we believe that gender and race equity should be the only goal of tort law or even the most important goal of tort law in every context. In the end, we were happy to align ourselves with Chris Robinette and other “pluralists” who think that tort law can best be understood as furthering a variety of objectives, including compensation, deterrence, and the promotion of important social policies such as gender and race equity. But we do insist that there is room in tort law for social equality and critical theory and have hopes that our book will alter the mainstream vision of the field.

 

I welcome your comments. 

 

Martha Chamallas

Robert J. Lynn Chair in Law

The Ohio State University Moritz College of Law