Thursday, September 19, 2019

Mass Tort Deals - Chapter Four

The fourth chapter in Mass Torts Deals tackles the role judges play in coercing facilitating mass torts settlements.  (You can find more chapter writeups here.)

In many instances, it seems as though lawyers manage to rope judges into using procedural mechanisms and their trusted status as authority figures to push plaintiffs into settlements.  The big danger seems to be that because we do not have clean, well-established procedural rules specifically for multi-district litigation proceedings, judges simply do whatever they want, often using coercive powers without any real safeguards.

In one case, Judge Susan Wigenton seemed to take a very heavy hand with objectors to a medical device settlement.  She ordered plaintiffs to "enter into a private settlement program that entailed at least 18 months of mediation unless they settled sooner."  At the same time, she stayed the multi-district proceeding, shutting off access to discovery.  Plaintiffs were forced to participate in the program or face dismissal.

In response, many plaintiffs objected.  Lawyers advocating for the settlement contended that Judge Wigenton had "inherent authority" to manage her docket and that the authority allowed her "to send an elderly plaintiff population into a private settlement program without their consent."  In response to the objections, Judge Wigenton defended her authority, saying "I completely, totally and whole heartily disagree with this notion and concept that I do not have the authority manage a case in the manner that I feel is appropriate.  I think that strains logic."

Although most would agree that courts have substantial inherent authority to manage the cases and attorneys before them, modern multi-district litigation processes seem to strain and surpass defensible outer limits for that authority.  Consider two different orders often issued in these cases: (1) census orders, and (2) Lone Pine orders.  Just keeping track of the specialized procedural terminology is a challenge.  Most lawyers won't learn these exotic moves in their ordinary practice or civil procedure.


With census orders, courts order all the lawyers appearing before them to disclose information about all of their clients--even ones in state court or who have not filed any case.  Although this information might be useful for dealmakers working to craft a settlement, forced disclosures of confidential information about other clients seems to create a conflict for an attorney. 

The jurisdictional basis for these orders also baffles me.  I do not understand how a person who has never submitted to the personal jurisdiction of any court by filing any complaint can have their information hauled out simply by having a relationship with a lawyer who is representing a different client in a proceeding in some distant state.

Lone Pine Orders

These orders essentially require plaintiffs who do not agree to a settlement deal to quickly furnish case-specific proof.  If the orders require expedited production of medical records and expert opinions, the aggressive timetables alone can be enough to force plaintiffs into settlements.

Ultimately, Burch captures the challenge with aggressive application of inherent authority in these cases.  She explains that it "appears to have no limits.  It is guided neither by consent nor contract principles.  It swells to fill whatever role it must, sacrificing transparency, predictability, and restraint in its wake."

The challenge here may be to keep encourage judicial behavior that promotes autonomy for plaintiffs instead of simply forcing settlement.  Although courts face pressures to resolve cases, they should make sure that injured plaintiffs can still have their day in court on reasonable terms if they want to try their case.  Without actually trying more of these cases, it's hard to know whether we're actually doing anything close to justice in these proceedings.

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