Wednesday, May 6, 2009

9/11 Statistical Discovery

What's going on with the 9/11 "First Responder" cases these days?

I just saw the following article in NYLJ - "Plan Implemented to Resolve Complex Suits in World Trade Center Cleanup."  The special masters who are creating this plan are two eminent mass tort scholars: Aaron Twerski (formerly dean of Hofstra Law and now back on the faculty at Brooklyn) and James Henderson (on the faculty at Cornell Law).   The plan involves creating a database of all the plaintiffs, and then conducting in depth discovery of a selected number of them to get a sense of how the cases develop, with the ultimate view of either having trials or settling the cases.  Here is a description of the special masters' plan from the NYLJ article:

The plan divides the 9,090 cases into five groups, running from the first wave of cases filed to the last. The first four groups will contain 2,000 cases each. The fifth group will contain the remainder and any after-filed cases.

The special masters and counsel for both sides prepared severity charts that grade a person's condition on a scale from zero to four. They also selected six major disease categories in which to group the illnesses.

The plan kicked off on Jan. 1 and within 40 days, plaintiffs in the first group of 2,000, Group A, completed a subset of the data fields that detailed their disease rankings, duration of exposure at Ground Zero and pre-existing disorders.

Ten days later, the special masters selected from this group the 200 cases ranked most severe, 25 additional cases for diseases that are not necessarily included in the severity chart, and an additional 400 cases at random.

The database for the 200 most severe cases and the 25 additional cases will be completed by April 1. Within five days, both sides and the judge will select the first six sample cases.

Completion of the database for the 400 cases chosen at random is due in late May, after which each party will choose two more cases and the judge picks another two. Those 400 cases will proceed along on discovery only, with no schedule set for motion or trials.

I haven't seen whether the six sample cases that were to be selected in April actually were selected, but will post then I find out.  Judge Hellerstein, who is overseeing these cases, is quoted in the article as saying of the methodology: ""It allows the parties to get a good sense of the strengths and weaknesses of all the cases."

This approach shares some similarities with the bellwether trials procedure I describe in a recent article.  (See Lahav, Bellwether Trials, available on SSRN).  What is interesting about this form of statistical adjudication is that it addresses the discovery phase and illustrates the extent to which discovery really makes or breaks a litigation, rather than trial. 


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When trial lawyers take depositions it is always with trial in mind. Trial is the gold standard against which the testimony elicited is weighed.

The Twerski/Henderson plan - with its mix of cases, and sufficient numbers - seems to me to be a well considered simulation of the kind of values that protracted litigation would produce.

The 9/11 first responder scheme aims to approximate not replicate the historical process of development of conventional settlement values.

These measures, the rules of thumb of settlements, evolved in two forums which provided a lot of trials: the workers compensation courts and the lower trial courts for auto cases.

In New Jersey in the 1960's the county (limited jurisdiction) lower trial courts - handled - by jury trial - thousands of automobile collision cases. The workers compensation courts tried - with live witnesses - thousands of claims by workers suffering from the common maladies of the industrial, mass production era.

In the lower courts there was no `no-fault' insurance to pay medical bills. Some workers had union welfare fund benefits - which carried liens. Doctors' fees too were filed as liens to be paid. Property damages were not resolved by inter-company arbitration.

Trial by jury drove compromise at every point in the system: by the insurers, the automobile owners, the injured, the doctors, and hospitals.

Three times the medical bills was a routine award in a clear liability case (`she had the stop sign'). But disputed facts could force more radical choices: She had the red light! I had the green light! Red light/green light cases were 50/50. Settled for 50 cents on the dollar. "Doc I couldn't get your the whole bill paid. It was a red light/green light case."

The leavening in that whole system was the jury's collective, civic judgment. The bureaucratized/digitized evaluations that often draw attention lack the beat of the heart. The Twerski Henderson formula appears to avoid that danger. It affords the reasonably robust testing of claims that is needed to develop confidence in settlement values for these claims - which arise from risks assumed, work for which the citizenry has enormous gratitude.

Posted by: George Conk | May 6, 2009 8:54:04 PM

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