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Editor: Christopher J. Robinette
Southwestern Law School

Monday, March 22, 2010

Nagareda on "Developments in the Resolution of Mass Torts: The New Face of Client Consent"

Much of our thinking about torts rightly focuses on the conceptual landscape of substantive law.  A significant related theme, however, concerns the legal principles that govern the ultimate cashing-out of tort claims.  No context presents both the urgency and the challenges of that process more starkly than the resolution of mass tort claims.  The menu of available vehicles to organize such a resolution plays a major part in mediating between tort law in a doctrinal sense and tort law in its on-the-ground operation.

 Writing at the intersection of torts and complex litigation procedure, I suggested in a 2007 monograph that we may understand developments concerning the resolution of mass tort claims in recent decades in institutional terms.  The law has been searching for an institutional vehicle to legitimize the resolution of tort claims on a mass basis – and, no small feat, to do so in such as way as actually to deliver closure in the area of litigation at hand.  If one were to imagine a continuum of such vehicles, then they would start on one end with notions of individualized consent in the private law of contracts.  Ordinary individual settlements of tort claims – as for civil claims generally – take their legitimacy from consent in the sense understood in contract law.  The other end of the continuum, if one will, ranges all the way to public legislation – literally so, in the case of the 9/11 victim compensation fund.    

If anything, the limitations of the two end points along the continuum are the converse of one another.  Individual settlements are relatively easily had but do not deliver much in the way of closure for mass tort litigation as a whole.  Public legislation may achieve much in the way of closure but is not easily had in political terms.  As a result, the most interesting points along the continuum of institutional vehicles are not its end points but, rather, an array of less well understood arrangements in the middle.  Until recently, these have consisted of aggregate settlements, class action settlements, and reorganizations in bankruptcy. 

In recent years, a new arrangement has emerged, to the point of spawning what is now an emerging scholarly literature about its operation and legitimacy.  The 2007 settlement arrangement used to resolve mass tort litigation over the prescription pain reliever Vioxx exemplifies this new development.  The Vioxx deal is striking in that it did not actually resolve a single extant Vioxx claim.  The contracting parties were not the defendant manufacturer Merck & Co. and any individual Vioxx plaintiff.  Rather, the contracting parties consisted of Merck and the small number of law firms within the mass tort plaintiffs’ bar with significant inventories of Vioxx claims.  The signatory firms obligated themselves to “recommend” participation in the compensation framework described in the agreement to 100% of their individual clients.  Were any given client to decline the advice to take the deal, the signatory firm obligated itself – “to the extent permitted by” legal ethics – to disengage from the representation of that client.  For its part, Merck committed a fixed sum of $4.85 billion to the deal, contingent upon a take-up rate of at least 85 percent on the part of Vioxx plaintiffs overall.  This condition was easily met, with over 99 percent of plaintiffs ultimately enrolling in the deal.

Given the checkered history of peacemaking efforts for mass torts, 99-percent closure is no small achievement.  Yet this very success – the realization of a “mass settlement without class actions,” in the words of one prominent lawyer on the plaintiffs’ side– is precisely the source of consternation for critics of the Vioxx deal.  For critics, the Vioxx deal exemplifies a deeply troubling trend toward the exalting of closure in mass torts to the detriment of legitimate consent.  In the most thoughtful and provocative exposition of this critique in the scholarly literature to date, Howard Erichson and Benjamin Zipursky contend that individual client consent in the Vioxx deal is illusory.  On this view, the deal placed the signatory law firms’ business interest in garnering one-third or more of the $4.85 billion that Merck had put on the table against their ethical obligation to render legal advice tailored to the specific situations of their individual clients.  Even worse, critics contend, the deal coerced dissenting clients with the disheartening prospect of starting anew with a different lawyer, if one could be found at all.

Viewed from an institutional standpoint, an important scholarly debate has now emerged.  The debate effectively asks how to allocate the uncharted conceptual terrain between conventional individual settlements and class settlements – the latter being largely off the table as viable settlement arrangements for mass torts after the Supreme Court’s Amchem and Ortiz decisions from the late-1990s.  Should the uncharted terrain, in effect, be allocated entirely to notions of individualized client consent drawn from the ancestral past of tort litigation in conventional one-on-one disputes?  Or is the challenge for the law today better understood in terms of a search for a hybrid conceptualization of consent, in keeping with the position of arrangements like the Vioxx deal between notions of private contract and public law, not at the end point of the former?

Several new additions to the torts literature point in various ways toward such a hybrid conception, building on a 2008 article by Samuel Issacharoff.  In a forthcoming article on the Vioxx settlement as well as developments in the constitutional law of punitive damages, I offer my own suggestion that hybridization is likely to be watchword for the future.  In a thoughtful new essayAlexandra Lahav challenges the notion that the “rough justice” associated with non-class-action aggregate treatment of mass torts marks a meaningful deviation from tort law in operation today.  And, in one of the latest in an important series of articles, Elizabeth Chamblee Burch draws on interdisciplinary research to envision a more ground-up, less lawyer-centered conception of collective client identity in the mass tort context.

The proverbial game is on over the future of mass tort claims resolution.  Its outcome promises to bear significantly on how the law translates the rich concepts of tort doctrine into practical operation.

- Richard A. Nagareda
Professor and Director, Cecil D. Branstetter Litigation & Dispute Resolution Program,
Vanderbilt University Law School

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