Life After Amchem: The Class Struggle Continues, page 7

Life After Amchem (continued)

Page 7

The right to an individual jury trial on each personal injury or wrongful death claim is a noble idea and against those who would deny any individual access to the courts, it must be defended at all costs. But most individuals do not, and cannot, seek such access to the courts, regardless of the merits or the economic value of their claims. The inexorable law of relativity is at work. In a tort claim arising from a one-on-one incident such as an auto accident or a slip-and-fall, the monetary value of a personal injury or wrongful death claim may make the expense of hiring experts, conducting an investigation, and outlasting an insurance-funded defense attractive to an experienced plaintiffs' lawyer. Nonetheless, there are not hundreds, thousands, or even millions of identical claims threatening to inundate the local court system. The system has developed ways to manage, try, and resolve the routine accident and other tort claims that are filed in a typical year. Notwithstanding the circumstances that make the jury trial of each such claim possible, most of these claims settle. While most such cases are brought and settled as individual suits, few tort litigants demand or achieve their individual days in court.

The individual trial of every tort claim in the mass tort context is not only statistically unlikely but also logistically impossible. Certainly, some victims of mass torts will be lucky and will proceed to judgment or settlement in advance of their less fortunate peers, for reasons having little or nothing to do with the relative merits of their claims. Yet how can a supposedly absolute right to an individual jury trial be granted to the few and denied to the many, without placing the entire civil justice system in disrepute? Despite our noble sentiments, this right is best expressed in Clint Eastwood's ominous question, "Do you feel lucky?" For instance, in the asbestos litigation, the decades-long prelude to Amchem and Ahearn, the ability to reach trial or settlement before manufacturers plunged into bankruptcy or the court system grounded to a complete halt depended upon the random variable of luck. That is, the system deteriorated into a lottery,³³ and most litigants -- plaintiffs and defendants alike -- were indeed unlucky. Such a disaster was precisely what the class action was designed to avoid.

If individuals cannot enjoy their full measure of rights in an absolute, timely, and cost-effective fashion without impairing the similar rights and interests of others, equity must intercede to fairly apportion the opportunity for adjudication and the assets available for compensation. This may require "mandatory" class certification under the Federal Rule of Civil Procedure 23(b)(1)(B).³⁴ Class treatment may compromise, in the absolutist sense, the rights of class members to control their own destinies. As is all too frequently the case, however, the destiny of a lawsuit is placed beyond the individuals' control by the sheer number of claims arising from the sale of a mass-produced product and the overwhelming magnitude of the aggregate monetary value of such claims in relationship to the assets and insurance available to satisfy them, particularly if the defendants desire to stay in business.

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NOTES

³³ See Ahearn v. Fibreboard Corp., 162 F.R.D. 505 (E.D. Tex. 1995) (commenting on the "lottery effects" often seen in asbestos litigation, in which a seriously ill claimant may recover little, while a far less seriously ill claimant hits the jackpot).

³⁴ See Amchem, 117 S. Ct. at 2245. The Ninth Circuit summarized this concept:

It is conceivable of course, that the claims of named plaintiffs would be so large that if the action were to proceed as an individual action the decision "would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." This would be the case where the claims of all plaintiffs exceeded the assets of the defendant and hence to allow any group of individuals to be fully compensated would impair the rights of those not in court.

Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 n.9 (9th Cir. 1976) (quoting Fed. R. Civ. P. 23(b)(1)(B)) (emphasis added). Portions of the Dalkon Shield IUD Litigation were resolved in precisely this way. See In re A.H. Robins Co., 880 F.2d 709, 741 (4th Cir. 1989), cert. denied, 493 U.S. 959 (1989).