In courtrooms, a "tort" is an injury.
It can be an individual tort, such as being rear-ended by another driver
when you're waiting at a stop light. Or it can be a mass tort, such as many
people killed in a jetliner crash, a faulty heart valve or the contamination
of property by a nearby industry.
Courts know how to treat individual cases. What's new is the explosion in
mass-tort litigation and growing concern about the courts' ability to cope.
How to handle these massive cases was the focus of 300 top lawyers,
scholars and judges at the Omni Netherland Plaza. Today, they are wrapping
up a four-day national conference - the first devoted to mass tort
litigation.
Convened by state and federal courts, participants argued about judges'
powers to control cases, division of spoils between victims and their
attorneys, and the relative virtues of class actions and other approaches.
Participants also sought ways to avoid clogging courts when hundreds,
thousands or more than 1 million potential victims threaten efforts to
balance efficiency and fairness.
"Those two goals conflict in the context of mass tort," said Francis
McGovern, a University of Alabama scholar. "It's mind-boggling to the
traditional judge."
There always have been mass torts, McGovern said. For centuries,
individuals rarely understood they were involved or pressed their legitimate
claims.
Even if they did, their family attorney often was overwhelmed by the
defendant's generally greater legal resources.
No longer, with publicity and attorneys advertising for clients.
"There is this creation of litigation, and that is recent," said Sheila
Birnbaum, a New York lawyer whose clients include Dow Corning Corp. in
litigation over breast implants.
When clients join their claims, they "get better lawyering," and potential
prizes become much richer, Birnbaum said. In turn, that has prompted
settlements such as the $ 5 billion that breast implant makers pledged to
resolve a class action embracing hundreds of thousands of claims.
Stunning as the numbers are, hostile jury verdicts could be worse. Going
to trial is a "big crap shoot," Birnbaum said. "That's why everyone
settles."
Cincinnati experience illustrates that. An advisory jury in the first
Fernald class action recommended a $ 136 million verdict against former
managers of the uranium processing facility. Rather than face a binding jury
trial, the government settled for $ 78 million.
On the other hand, avoiding class actions could pay off. Only half of the
women who pursued individual breast implant suits have won, but some awards
exceeded what they would get from the mass settlement, Birnbaum said.
Tensions don't end there.
"Everybody from the different sides thinks there are too many litigants,"
Birnbaum said.
That was her way of describing frauds who claim phony injuries in mass
lawsuits, hoping for something.
Another issue was fees. In federal courts, judges determine how much of a
verdict or settlement goes to the lawyers. It rarely is more than 25
percent, including related costs.
Things are worse in state courts, according to John D. Aldock, a
Washington, D.C., attorney who represents corporate clients in a national
asbestos class action.
There, Aldock said, lawyers and clients agree on mass tort fees and judges
rarely intervene.
"The claimant is lucky to get half the award."
Aldock blames judges' natural sympathy for attorneys. "They were lawyers
once."
Worse, he said, is the fear of alienating lawyers who wouldotherwise
contribute to judges' campaigns.
No one - not even corporate lawyers paid by the hour, whether they win or
lose - denied that victims' lawyers take big risks in mass tort cases.
Attorneys led by Cincinnati's Stanley M. Chesley received nothing for
years of work when they lost the Bendectin birth-defects suit to a team
headed by another Cincinnatian, Frank Woodside III.
People familiar with that case estimated that the losing lawyers were out
more than $ 1 million in uncompensated time, expert witness costs and
related expenses.
On the other hand, the $ 78 million settlement in the first Fernald class
action was a major coup for Chesley in 1989, a leading figure in mass torts
since he successfully represented victims in the 1977 Beverly Hills Supper
Club fire in Southgate, Ky.
