#5, and, having worked in the business a bit and seen what goes on, I’m definitely gonna need a solid cite for #s 6, 7, 8, 9, and 10. And 11, actually. Is that the lawyer’s effective rate, or the firm’s effective rate? Is that before or after expenses? Is that taking into account the cases that the firm tried and lost, leaving them out a bunch of money?
But this needs to be addressed first:
Well…yeah. Because the problems inherent in mass torts make standard tort law principles almost completely inapplicable. No offense intended, but by citing the statement above as a reason for tort reform very much shows your incomplete understanding of the law.
Luckily, I’m here to help.
I just started a class on Mass Torts taught by Ken Feinberg, whose name you may recognize, as he was appointed special master of the 911 Fund by the Bush Administration–he’s the one in charge of figuring out all the victims’ compensation questions. Tough job.
Anyway, in our first lecture he demonstrated to us why mass torts as a field is amply deserving of its own class; why, that is, it isn’t–and can’t possibly be–simply a subset of torts law.
He gave two examples. The first is a traditional tort scenario. The second is a mass tort scenario. (I’m working from my class notes here, so this isn’t gonna be nearly as complete as it should be (and it’s necessarily simplified a little), but I think it’ll be sufficiently illustrative.)
Traditional Tort
14-year-old Johnny, who lives in Virginia, is mowing his lawn with a Toro lawn mower. The mower hits a rock. Apparently due to a problem with the blade guard, the rock shoots up and hits Johnny in the eye. Johnny’s eye gets seriously hurt.
Okay? This is Torts I. Simple, simple, simple.
- There’s one plaintiff. Johnny.
- There’s one defendant. Toro Lawnmowers, inc.
- There’s one injury. The eye.
- Causation isn’t a big issue. The mower hit the rock, the rock hit the eye.
- There’s no latency problem. The injury manifests itself immediately.
- Damages are readily identifiable. Insurance companies know what an eye injury to a 14-year-old is worth. They pull out their actuarial tables–right up your alley, december–and bing-bang-boom, they know how much it’s gonna cost when it’s all said and done.
- There are no ethics problems. Each party hires their own lawyer, and there’s no conflict of interest.
- There are no jurisdiction problems. Everything happened in Virginia.
- Choice of law is easy. If Johnny sues in a state court, it’s Virginia negligence law. If he sues in federal court under diversity jurisdiction–let’s say Toro’s based in Montana–the court uses Virginia law, following Erie Railway Co. v. Tompkins.
- The government has nothing to do with the case; it merely provides a forum.
- Settlement presents no problem. If the parties want to settle, it’s easy for them to do so.
- There’s no insurance problem. This kind of thing is exactly the reason Toro bought the insurance in the first place.
All cool? Johnny v. Lawnmower Co. Piece o’ cake under traditional tort law principles. Now:
Mass Tort
There’s not one Johnny. There’s hundreds of thousands, in every state in the union, wanting to take their cases before every court in the US. Let’s say they inhaled asbestos–some of them fifty years ago, some of them five years ago. (Johnny’s not fourteen in this example). With asbestos, there’s not one defendant. There might be hundreds. Mass torts involves, for (among others) efficiency purposes, the aggregation of all of these claims. A quote from Feinberg here: “This volume inundates our legal system–the ‘mass’ in mass torts creates substantial problems in every area that is easy to resolve in Johnny v. Lawnmower Co.”
- Multiple plaintiffs and 2) multiple defendants. Already there are procedural problems, not least because of the duplication of paperwork required (since all the cases use exactly the same facts up to a point).
- Multiple injuries. One plaintiff has had asbestosis and mesothelioma for the past six years. Another just got lung cancer a year ago. A third just now started coughing up blood. A fourth worked up until recently in a job where he was literally covered with asbestos dust every day–remember that Buckley case?–but no symptoms have yet manifested themselves.
- Causation. This is the big one. If the injury is not trauma-related (i.e. immediate) but rather involves illness, there are tremendous causation problems. How can you prove your lung cancer was caused by that asbestos you inhaled twenty years ago and not to the cigarettes you’ve smoked, or some nasty stuff in the air, or something else altogether? How much exposure to a toxic substance is needed before it becomes likely enough that it caused–or at least contributed to–your injury? Quoting Feinberg again: “With toxic torts, major issues of causation abound.”
- Latency. Goes along with causation, but raises issues of its own. Years and years could pass between exposure to a toxic substance and physical manifestation of injury. It raises recovery problems, for one: what if the company that negligently injured you twenty years ago is out of business today?
- Damages. Again, part of causation. If you’ve got a chronic hacking cough because of asbestos inhalation, and you can scientifically show that the cough has a fifty percent chance of turning into mesothelioma over the next ten years, what sort of damages do you get? If you wait until you get mesothelioma, you have to live with the cough and run the risk of never getting recompensed for anything. If you initiate a claim now, under traditional tort law you foreclose your ability to relitigate on the chance that you contract a more serious injury in the future. Can you recover for the increased risk of future cancer? Can you recover for diminished life expectancy? The stress and fear brought about by living with the probability of one day getting cancer? The medical monitoring costs needed to catch the cancer early and nip it in the bud?
- Ethics. One plaintiffs’ lawyer potentially representing thousands of clients. One defense lawyer potentially representing multiple defendants. How can you remain loyal to and advance the interests of each and every one, as you’re bound to do? And let’s say you’re a plaintiffs’ lawyer and the company offers you a huge lump sum settlement for all your injured clients. How do you parcel it out? How do you decide, in effect, complex causation and latency issues (as in, who’s hurt worse, and who deserves the money more) without the benefit of an actual trial?
- Jurisdiction and 9) choice of law. Where can you bring the suit? Where do you bring the suit? And when the suit is brought, what law applies? Let’s say you were exposed to asbestos seven years ago when living in Idaho, and your injury manifests itself now while you’re living in Virginia. What happens?
- The government. The US Navy ordered asbestos companies to spray ships with asbestos in WWII. The Navy itself has sovereign immunity from claims under the Federal Tort Claims Act. The companies themselves have the government contractor defense that relieves them of liability–all they were doing is following orders. Do you have any recourse for recovery?
- Settlement. By now, the problems with settlement–in terms of the transaction costs inherent in organizing thousands of parties, and in terms of figuring out damages–should be pretty easy to see.
- Insurance. They’ve been litigating for a year over whether, for the purposes of the insurance policies, the planes hitting the World Trade Center constituted one event or two. According to Feinberg, they’ve been litigating for seven years over the cleanup costs associated with mercury leaks from gas meters in the Midwest; the question is whether each cleanup counts individually–in which case they all fall under the insurance policy deductible, and the utility company has to pay–or whether they’re aggregate–in which case the insurers are on the hook for hundreds of millions of dollars. And insurance causes problems another way, too–let’s say I inhaled asbestos in 1980 and manifested it today. And let’s say I can prove that X asbestos manufacturer caused my illness. In 1980, X was with Aetna. In 1987–around the time that my illness was taking hold internally–they switched to CNA. And then in 1995, they switched to Liberty Mutual, who is currently insuring them. Which insurance company is responsible for paying?
Anyway, it’s late. I hope I’ve articulated several of the reasons that mass torts are, by necessity, fundamentally different than traditional torts. #4 of your list may be true, but if anything, it’s a point against the sort of tort reform you’re proposing, not in favor of it.