Asbestos. Agent Orange. Dalkon Shield. DES. Bendectin. Copper-7. Atomic waste. Love Canal. Bhopal.
A tidal wave of mass toxic tort litigation began stirring in the seventies and swept violently through the eighties. It clogged courts, bankrupted billion-dollar companies like Manville Corporation and A.H. Robins Company, Incorporated, sent shudders through corporate America and the insurance industry, enriched legions of lawyers, fueled talk of a "litigation explosion" and juries gone mad with million-dollar verdicts. It spawned debate about whether the tort system can fairly compensate toxic injuries-or any injuries-and inspired proposals to reform the system or even scrap it.
But before these cases began to unsettle the legal system and capture the imaginations of tort reformers, asbestos, the Dalkon Shield, and other products had ravaged the lungs, reproductive organs, and other tissues of thousands of Americans.
That was where the contingent-fee lawyers came in-lawyers like Thomas Henderson of Pittsburgh, a serious, intensely competitive steel-worker’s son known as a tough negotiator and a doggedly determined litigator. He has been a major player in the multibillion-dollar asbestos litigation and had a significant role in the last few frantic months of the mammoth Agent Orange class action, which seven major chemical companies settled for a record $180 million in 1984. And he, as much as anyone, is emblematic of the new breed of plaintiffs lawyers that have put the big toxic tort cases together over the past 15 years. His career illuminates the mix of skills and strategies it has taken to rise to the top of the mass toxic tort field-as well as the rewards these cases offer and the issues of public policy that they raise.
Seeking compensation for sick industrial workers, damaged women, and others, with a generous cut for themselves, Henderson and dozens of other lawyers set the toxic tort tidal wave in motion. They prowled the frontiers of medical and scientific knowledge for evidence of what caused diseases latent for decades. They invested time and money hunting down corporate documents and witnesses to convince juries that executives at companies like asbestos producer Manville and Robins (maker of the Dalkon Shield) had concealed evidence that their products were dangerous, putting workers and consumers at risk for the good of their business. (The companies still deny this.) They were willing to share information with one another and to collaborate on strategy, and were managerially inclined enough to process thousands of cases with the help of computers and paralegals. They have had to master the intricacies of bankruptcy law, and are now grappling with such questions as whether an intricate leveraged buyout transaction is being used to strip assets from an asbestos defendant.
They took some chances, took some losses, and eventually won some big victories and lots of little ones. Now, carrying high volumes of cases and very limited risks, these plaintiffs lawyers are rich and getting richer. They generally rake in contingent fees of 30 to 40 percent of their clients’ awards and settlements in the easy cases that can be routinely processed and settled as well as in the hard ones.
These cases seemed to hold out little temptation in the 1970s for the established lions of the plaintiffs trial bar, people like Philip Corboy, Jr., and Leonard Ring of Chicago, Lee Kreindler of New York, and Melvin Belli of San Francisco, who were already making millions in medical malpractice, airplane crash, and other, more conventional personal injury cases. "They didn’t need this mountain to climb," Henderson says.
Instead, most of the lawyers who started breaking open asbestos cases in the 1970s and early 1980s were hungry, scrappy, entrepreneurial newcomers like Henderson; one or two established stars like the redoubtable Scott Baldwin of Marshall, Texas, got involved too.
No one individual is preeminent among the mass toxic tort lawyers. Aside from Henderson, those who made their names in asbestos cases, the biggest toxic tort litigation of them all, include Ronald Motley of Barnwell, South Carolina, Frederick Baron of Dallas, Gene Locks of Philadelphia, and Stanley Levy of New York. An up-and-coming multimillion-dollar man is Michael Ciresi of Minneapolis’s Robins, Kaplan, Miller & Ciresi, winner of an $8.75 million jury verdict (including $7 million in punitive damages) against G.D. Searle & Co. last September in a suit by a woman who claims its Copper-7 intrauterine device caused her pelvic infection and infertility. (The company is appealing.) Ciresi was also a big winner in the Dalkon Shield litigation; he represents the government of India in the Bhopal case. Another important figure in mass tort litigation nationally is Stanley Chesley of Cleveland who is involved in many mass disaster and toxic tort cases and helped settle the Agent Orange litigation.
Lawyers like these are at the heart of the debate over mass toxic torts. Are the cases they bring and the judge-made expansion of liability that has made such cases possible bad for America?
ONE OF THE "DIFFICULT" LAWYERS
A subdued, dark-suited man of 49, Henderson is an expert in the complex issues of scientific and medical causation that lie at the heart of toxic tort cases. Less flashy than many plaintiffs lawyers and probably less redundantly a millionaire than some, he has won respect from judges, as well as from academics and some defense lawyers who were interviewed for this article, as intelligent, industrious, and trustworthy; two of those interviewed said he had a hot temper and could be "truculent," as one put it.
Henderson’s demeanor does not evoke the traditional stereotype of the swaggering, flamboyant plaintiffs trial lawyer. He was, in fact, an Ivy Leaguer as an undergraduate. A large clay bruin sculpted by his daughter, holding a pennant inscribed "Go Brown!" shares his office bookshelf with medical, scientific, and legal tomes and family pictures. He plays fiercely competitive squash, tennis, and golf, enjoys the theater, and has Steelers season tickets. An avowed workaholic, he walks with a paper towel back to his office after washing up: Drying his hands en route saves a few seconds,, Henderson explains. On the day of a recent interview he ate nothing but a bag of unbuttered popcorn for lunch, at his desk; this saves time and helps hold his weight down. Henderson is currently co-teaching a class in mass tort litigation at Duke University School of Law with Francis McGovern, a professor at the University of Alabama’s School of Law and School of Public Health and a leading expert in the field. Henderson says he hopes to draw some new legal talent to the plaintiffs side, which has "too few lawyers handling too many cases."
Henderson’s five-year-old firm, Henderson & Goldberg, is an efficient, computerized, tastefully decorated operation with six partners, five associates, about 28 paralegals, and 6,000 pending asbestos cases. These include 4,500 cases, referred by other lawyers who will split the fees, in state and federal courts in ten Eastern and Midwestern states. The firm also has handled occupational disease claims for workers exposed to benzene, PCBs, and other chemicals. Almost all of the cases are for contingent fees, usually one third of any recovery, according to Henderson.
The toxic tort business, meaning mainly asbestos, has been good to Tom Henderson. He declines to say just how good. After the settlement of the Agent Orange class action, Henderson told a magistrate considering his application for fees that his take-home pay had been between $400,000 and $500,000 in 1983.
He makes a lot more now, Henderson indicates, because of "the economies we’ve developed in the past four or five years, since we started to develop a large number of cases and make better use of our time and word processors and paralegals and so forth." Some experts familiar with asbestos litigation speculate that several plaintiffs lawyers around the country, perhaps including Henderson, make more than $1 million a year, maybe much more, at least in a good year. Asked what kind of car he drives, Henderson hesitates, then confesses; "A 1988 Jaguar, I’m embarrassed to say. It’s the first time I’ve ever had a big expensive car, and I’m a little self-conscious about it."
Not bad for a fellow who compiled an undistinguished record at Brown, spent much of his time there partying and playing cards, and didn’t get around to applying to the prestige law schools. In 1962 he married his high school sweetheart and started work as a claims adjuster for an insurance company, United States Fidelity & Guaranty. He went through Duquesne University Law School at night.
Henderson decided early on to do trial work in personal injury cases, and by his third year to be on the side of plaintiffs. As he recalls it, his choice represented a happy coalescence of blue-collar roots, gambling instincts, economic self-interest, and social conscience.
"I’m a risk taker," Henderson says, "and I sensed early on that the most successful plaintiffs lawyers were doing a whole lot better than the successful defense lawyers." In addition, his work for the insurance company helped convince him he wanted "to represent people, rather than some amorphous entity like a corporation," as he puts it.
His job at United States Fidelity was to buy out the claims of people injured in car wrecks and the like as cheaply as possible. "I didn’t like what I did. I did it well," he recalls. "But I didn’t feel good about screwing people, which is what it was our job to do-getting releases from them for what I knew were amounts much less than what other people were getting for the same injuries. The people who did well in that system were the difficult people, or the ones who had difficult lawyers. The plain old nice people were the ones who got screwed."
Henderson decided he would be one of the difficult lawyers. Some defense lawyers who have litigated against him have found him difficult indeed. "He is hard-nosed," says one. "He believes, I think sincerely, strongly in his cause and that sometimes gets in his way when settlement opportunities are presented. I don’t know whether that’s a good trait or a bad one." Another lawyer who has seen Henderson in action says, "He is a very bright guy but a very intemperate person…. Tom’s got a fuse about a quarter of an inch long and as a trial lawyer that’s not a good thing to have." Henderson admits to displaying a hot temper at times, but says that "usually it’s studied, or has an advocacy purpose in one fashion or another." Remarks Alabama law school professor McGovern, who is friendly with Henderson: "Tom is sort of a bulldog who grabs hold of something and holds on and holds on."
EARLY WINS WITH ASBESTOS
Henderson started his practice in 1967, "when steel was king around here," he says, as understudy to a former judge named Walter Koegler. He got to know the right union officials, told sick and injured steelworkers and others about their legal options, and built a sizeable practice representing them in occupational disease and workers’ compensation cases. "I spent a lot of time in union halls courting that business, entertained a lot of union officials, drank a lot of beers, and told a lot of stories for a lot of years," Henderson recalls.
His clients had the run of diseases that, like abandoned hulks of factories, were the residue of the days of the steel boom-silicosis, lung cancers allegedly caused by coke oven emissions, pneumoconiosis, asbestosis, and asbestos-related cancers. He soon learned that he could often do better for his clients and himself by bringing product liability cases against third parties than by merely seeking the limited workers’ compensation remedy against the employer.
Henderson left Koegler in 1973 to go into partnership with some other lawyers his own age; in 1978 he joined the large corporate firm in Pittsburgh now known as Baskin Flaherty Elliott & Mannino. He moved on six years later, frustrated, he says, by trying "to fit a plaintiffs personal injury practice into a corporate mindset law firm" and by the then-turbulent times at the Baskin firm. Taking five other lawyers with him, Henderson opened his own shop.
Meanwhile, spurred by a seminal Fifth Circuit decision in 1973 that opened the way for product liability claims by insulation workers and others exposed to asbestos dust against Manville and other asbestos companies, Henderson and others began suing those companies all over the country. It was a costly investment at first. "In the early days everybody who was serious about the asbestos litigation put very substantial amounts of time, travel, and money into it," Henderson recalls.
Especially expensive were the expert witnesses and the search for what Henderson calls "heat-type evidence" about asbestos companies’ early knowledge and concealment of health dangers.
Among the early breakthroughs in proving the culpability of Manville’s management were two depositions Henderson took in 1976 from Dr. Kenneth Smith, former medical director of Manville’s predecessor, Johns-Manville Corporation. Henderson found Dr. Smith in Windsor, Ontario. Smith turned out to be surprisingly cooperative. He disclosed research and high-level Manville communications as early as the 1940s that he and other officials were aware that asbestos dust might be dangerous to insulation workers and others who were exposed to far lower levels than the company had acknowledged to be dangerous for many years thereafter. This evidence gravely undermined the company’s defense that it had warned users of its products of all dangers that were known or reasonably knowable.
Why did Dr. Smith give Henderson a confession so damaging to himself and his former employer? Henderson says, "I think it was expiation…. He felt that what he had done, he didn’t feel good about, and… he felt like telling the truth. I think he would have liked to have gotten all of it out before he passed on. I think that more was there." One Smith deposition helped Henderson to achieve one of the earliest trial victories for an asbestos plaintiff, beating Lively Wilson of Louisville, a well-respected asbestos defense litigator, on his home court.
The asbestos litigation really took off beginning about 1978, spurred by a succession of discoveries by plaintiffs lawyers of more damaging documents suggesting early awareness and concealment by asbestos companies of the health dangers posed by asbestos.
By 1982 Henderson was spending 95 percent of his time on asbestos cases, with about 350 pending. Now he has more than ten times as many, and the cases keep pouring in, partly because of a program Henderson’s firm conducts in cooperation with union officials to screen members for signs of asbestos-related diseases.
In the past few years of asbestos litigation, lawyers like Henderson have been making a bundle. A 1983 study by the RAND Corporation’s Institute for Civil Justice of the costs of asbestos litigation to that point found that 63 percent of the total spent by defendants and insurers to close asbestos cases went for the parties’ legal fees and litigation expenses, leaving only 37 percent for injured plaintiffs. More recent figures are not available.
Many of the cases are relatively easy to settle, especially those against the Manville Personal Injury Settlement Trust, which, as part of the company’s reorganization plan, was created last year as an independent entity with the goal of settling claims expeditiously on terms fair to the claimants as a group. The trust has agreed to settle almost 14,000 claims for an average of $38,000 apiece; this average could decline. A trust spokesman also notes that "temporary shortfalls of cash" could result in delayed payment.
If Henderson were to settle his firm’s entire caseload of nearly 6,000 claims against Manville for an average of $38,000 per claim, the total fees generated on a 33 percent contingency basis would approach $76 million. His firm would get about $47 million of that, assuming a 50-50 split of the fees in 4,500 cases with the firms that referred them.
Henderson declines to comment on such speculation, but says critics who accuse him and other plaintiffs lawyers of unjust enrichment at the expense of their clients are off base. He says that he and four other leading asbestos plaintiffs lawyers, in response to complaints by Manville officials that plaintiffs counsel were taking too big a slice of the pie, have agreed to contribute to a special fund for the benefit of asbestos victims-25 percent of the fees they win in claims settled with the Manville trust that arise after the company’s November 28, 1988, emergence from bankruptcy.
In addition, Henderso…
Asbestos. Agent Orange. Dalkon Shield. DES. Bendectin. Copper-7. Atomic waste. Love Canal. Bhopal.
A tidal wave of mass toxic tort litigation began stirring in the seventies and swept violently through the eighties. It clogged courts, bankrupted billion-dollar companies like Manville Corporation and A.H. Robins Company, Incorporated, sent shudders through corporate America and the insurance industry, enriched legions of lawyers, fueled talk of a "litigation explosion" and juries gone mad with million-dollar verdicts. It spawned debate about whether the tort system can fairly compensate toxic injuries-or any injuries-and inspired proposals to reform the system or even scrap it.
But before these cases began to unsettle the legal system and capture the imaginations of tort reformers, asbestos, the Dalkon Shield, and other products had ravaged the lungs, reproductive organs, and other tissues of thousands of Americans.
That was where the contingent-fee lawyers came in-lawyers like Thomas Henderson of Pittsburgh, a serious, intensely competitive steel-worker’s son known as a tough negotiator and a doggedly determined litigator. He has been a major player in the multibillion-dollar asbestos litigation and had a significant role in the last few frantic months of the mammoth Agent Orange class action, which seven major chemical companies settled for a record $180 million in 1984. And he, as much as anyone, is emblematic of the new breed of plaintiffs lawyers that have put the big toxic tort cases together over the past 15 years. His career illuminates the mix of skills and strategies it has taken to rise to the top of the mass toxic tort field-as well as the rewards these cases offer and the issues of public policy that they raise.
Seeking compensation for sick industrial workers, damaged women, and others, with a generous cut for themselves, Henderson and dozens of other lawyers set the toxic tort tidal wave in motion. They prowled the frontiers of medical and scientific knowledge for evidence of what caused diseases latent for decades. They invested time and money hunting down corporate documents and witnesses to convince juries that executives at companies like asbestos producer Manville and Robins (maker of the Dalkon Shield) had concealed evidence that their products were dangerous, putting workers and consumers at risk for the good of their business. (The companies still deny this.) They were willing to share information with one another and to collaborate on strategy, and were managerially inclined enough to process thousands of cases with the help of computers and paralegals. They have had to master the intricacies of bankruptcy law, and are now grappling with such questions as whether an intricate leveraged buyout transaction is being used to strip assets from an asbestos defendant.
They took some chances, took some losses, and eventually won some big victories and lots of little ones. Now, carrying high volumes of cases and very limited risks, these plaintiffs lawyers are rich and getting richer. They generally rake in contingent fees of 30 to 40 percent of their clients’ awards and settlements in the easy cases that can be routinely processed and settled as well as in the hard ones.
These cases seemed to hold out little temptation in the 1970s for the established lions of the plaintiffs trial bar, people like Philip Corboy, Jr., and Leonard Ring of Chicago, Lee Kreindler of New York, and Melvin Belli of San Francisco, who were already making millions in medical malpractice, airplane crash, and other, more conventional personal injury cases. "They didn’t need this mountain to climb," Henderson says.
Instead, most of the lawyers who started breaking open asbestos cases in the 1970s and early 1980s were hungry, scrappy, entrepreneurial newcomers like Henderson; one or two established stars like the redoubtable Scott Baldwin of Marshall, Texas, got involved too.
No one individual is preeminent among the mass toxic tort lawyers. Aside from Henderson, those who made their names in asbestos cases, the biggest toxic tort litigation of them all, include Ronald Motley of Barnwell, South Carolina, Frederick Baron of Dallas, Gene Locks of Philadelphia, and Stanley Levy of New York. An up-and-coming multimillion-dollar man is Michael Ciresi of Minneapolis’s Robins, Kaplan, Miller & Ciresi, winner of an $8.75 million jury verdict (including $7 million in punitive damages) against G.D. Searle & Co. last September in a suit by a woman who claims its Copper-7 intrauterine device caused her pelvic infection and infertility. (The company is appealing.) Ciresi was also a big winner in the Dalkon Shield litigation; he represents the government of India in the Bhopal case. Another important figure in mass tort litigation nationally is Stanley Chesley of Cleveland who is involved in many mass disaster and toxic tort cases and helped settle the Agent Orange litigation.
Lawyers like these are at the heart of the debate over mass toxic torts. Are the cases they bring and the judge-made expansion of liability that has made such cases possible bad for America?
ONE OF THE "DIFFICULT" LAWYERS
A subdued, dark-suited man of 49, Henderson is an expert in the complex issues of scientific and medical causation that lie at the heart of toxic tort cases. Less flashy than many plaintiffs lawyers and probably less redundantly a millionaire than some, he has won respect from judges, as well as from academics and some defense lawyers who were interviewed for this article, as intelligent, industrious, and trustworthy; two of those interviewed said he had a hot temper and could be "truculent," as one put it.
Henderson’s demeanor does not evoke the traditional stereotype of the swaggering, flamboyant plaintiffs trial lawyer. He was, in fact, an Ivy Leaguer as an undergraduate. A large clay bruin sculpted by his daughter, holding a pennant inscribed "Go Brown!" shares his office bookshelf with medical, scientific, and legal tomes and family pictures. He plays fiercely competitive squash, tennis, and golf, enjoys the theater, and has Steelers season tickets. An avowed workaholic, he walks with a paper towel back to his office after washing up: Drying his hands en route saves a few seconds,, Henderson explains. On the day of a recent interview he ate nothing but a bag of unbuttered popcorn for lunch, at his desk; this saves time and helps hold his weight down. Henderson is currently co-teaching a class in mass tort litigation at Duke University School of Law with Francis McGovern, a professor at the University of Alabama’s School of Law and School of Public Health and a leading expert in the field. Henderson says he hopes to draw some new legal talent to the plaintiffs side, which has "too few lawyers handling too many cases."
Henderson’s five-year-old firm, Henderson & Goldberg, is an efficient, computerized, tastefully decorated operation with six partners, five associates, about 28 paralegals, and 6,000 pending asbestos cases. These include 4,500 cases, referred by other lawyers who will split the fees, in state and federal courts in ten Eastern and Midwestern states. The firm also has handled occupational disease claims for workers exposed to benzene, PCBs, and other chemicals. Almost all of the cases are for contingent fees, usually one third of any recovery, according to Henderson.
The toxic tort business, meaning mainly asbestos, has been good to Tom Henderson. He declines to say just how good. After the settlement of the Agent Orange class action, Henderson told a magistrate considering his application for fees that his take-home pay had been between $400,000 and $500,000 in 1983.
He makes a lot more now, Henderson indicates, because of "the economies we’ve developed in the past four or five years, since we started to develop a large number of cases and make better use of our time and word processors and paralegals and so forth." Some experts familiar with asbestos litigation speculate that several plaintiffs lawyers around the country, perhaps including Henderson, make more than $1 million a year, maybe much more, at least in a good year. Asked what kind of car he drives, Henderson hesitates, then confesses; "A 1988 Jaguar, I’m embarrassed to say. It’s the first time I’ve ever had a big expensive car, and I’m a little self-conscious about it."
Not bad for a fellow who compiled an undistinguished record at Brown, spent much of his time there partying and playing cards, and didn’t get around to applying to the prestige law schools. In 1962 he married his high school sweetheart and started work as a claims adjuster for an insurance company, United States Fidelity & Guaranty. He went through Duquesne University Law School at night.
Henderson decided early on to do trial work in personal injury cases, and by his third year to be on the side of plaintiffs. As he recalls it, his choice represented a happy coalescence of blue-collar roots, gambling instincts, economic self-interest, and social conscience.
"I’m a risk taker," Henderson says, "and I sensed early on that the most successful plaintiffs lawyers were doing a whole lot better than the successful defense lawyers." In addition, his work for the insurance company helped convince him he wanted "to represent people, rather than some amorphous entity like a corporation," as he puts it.
His job at United States Fidelity was to buy out the claims of people injured in car wrecks and the like as cheaply as possible. "I didn’t like what I did. I did it well," he recalls. "But I didn’t feel good about screwing people, which is what it was our job to do-getting releases from them for what I knew were amounts much less than what other people were getting for the same injuries. The people who did well in that system were the difficult people, or the ones who had difficult lawyers. The plain old nice people were the ones who got screwed."
Henderson decided he would be one of the difficult lawyers. Some defense lawyers who have litigated against him have found him difficult indeed. "He is hard-nosed," says one. "He believes, I think sincerely, strongly in his cause and that sometimes gets in his way when settlement opportunities are presented. I don’t know whether that’s a good trait or a bad one." Another lawyer who has seen Henderson in action says, "He is a very bright guy but a very intemperate person…. Tom’s got a fuse about a quarter of an inch long and as a trial lawyer that’s not a good thing to have." Henderson admits to displaying a hot temper at times, but says that "usually it’s studied, or has an advocacy purpose in one fashion or another." Remarks Alabama law school professor McGovern, who is friendly with Henderson: "Tom is sort of a bulldog who grabs hold of something and holds on and holds on."
EARLY WINS WITH ASBESTOS
Henderson started his practice in 1967, "when steel was king around here," he says, as understudy to a former judge named Walter Koegler. He got to know the right union officials, told sick and injured steelworkers and others about their legal options, and built a sizeable practice representing them in occupational disease and workers’ compensation cases. "I spent a lot of time in union halls courting that business, entertained a lot of union officials, drank a lot of beers, and told a lot of stories for a lot of years," Henderson recalls.
His clients had the run of diseases that, like abandoned hulks of factories, were the residue of the days of the steel boom-silicosis, lung cancers allegedly caused by coke oven emissions, pneumoconiosis, asbestosis, and asbestos-related cancers. He soon learned that he could often do better for his clients and himself by bringing product liability cases against third parties than by merely seeking the limited workers’ compensation remedy against the employer.
Henderson left Koegler in 1973 to go into partnership with some other lawyers his own age; in 1978 he joined the large corporate firm in Pittsburgh now known as Baskin Flaherty Elliott & Mannino. He moved on six years later, frustrated, he says, by trying "to fit a plaintiffs personal injury practice into a corporate mindset law firm" and by the then-turbulent times at the Baskin firm. Taking five other lawyers with him, Henderson opened his own shop.
Meanwhile, spurred by a seminal Fifth Circuit decision in 1973 that opened the way for product liability claims by insulation workers and others exposed to asbestos dust against Manville and other asbestos companies, Henderson and others began suing those companies all over the country. It was a costly investment at first. "In the early days everybody who was serious about the asbestos litigation put very substantial amounts of time, travel, and money into it," Henderson recalls.
Especially expensive were the expert witnesses and the search for what Henderson calls "heat-type evidence" about asbestos companies’ early knowledge and concealment of health dangers.
Among the early breakthroughs in proving the culpability of Manville’s management were two depositions Henderson took in 1976 from Dr. Kenneth Smith, former medical director of Manville’s predecessor, Johns-Manville Corporation. Henderson found Dr. Smith in Windsor, Ontario. Smith turned out to be surprisingly cooperative. He disclosed research and high-level Manville communications as early as the 1940s that he and other officials were aware that asbestos dust might be dangerous to insulation workers and others who were exposed to far lower levels than the company had acknowledged to be dangerous for many years thereafter. This evidence gravely undermined the company’s defense that it had warned users of its products of all dangers that were known or reasonably knowable.
Why did Dr. Smith give Henderson a confession so damaging to himself and his former employer? Henderson says, "I think it was expiation…. He felt that what he had done, he didn’t feel good about, and… he felt like telling the truth. I think he would have liked to have gotten all of it out before he passed on. I think that more was there." One Smith deposition helped Henderson to achieve one of the earliest trial victories for an asbestos plaintiff, beating Lively Wilson of Louisville, a well-respected asbestos defense litigator, on his home court.
The asbestos litigation really took off beginning about 1978, spurred by a succession of discoveries by plaintiffs lawyers of more damaging documents suggesting early awareness and concealment by asbestos companies of the health dangers posed by asbestos.
By 1982 Henderson was spending 95 percent of his time on asbestos cases, with about 350 pending. Now he has more than ten times as many, and the cases keep pouring in, partly because of a program Henderson’s firm conducts in cooperation with union officials to screen members for signs of asbestos-related diseases.
In the past few years of asbestos litigation, lawyers like Henderson have been making a bundle. A 1983 study by the RAND Corporation’s Institute for Civil Justice of the costs of asbestos litigation to that point found that 63 percent of the total spent by defendants and insurers to close asbestos cases went for the parties’ legal fees and litigation expenses, leaving only 37 percent for injured plaintiffs. More recent figures are not available.
Many of the cases are relatively easy to settle, especially those against the Manville Personal Injury Settlement Trust, which, as part of the company’s reorganization plan, was created last year as an independent entity with the goal of settling claims expeditiously on terms fair to the claimants as a group. The trust has agreed to settle almost 14,000 claims for an average of $38,000 apiece; this average could decline. A trust spokesman also notes that "temporary shortfalls of cash" could result in delayed payment.
If Henderson were to settle his firm’s entire caseload of nearly 6,000 claims against Manville for an average of $38,000 per claim, the total fees generated on a 33 percent contingency basis would approach $76 million. His firm would get about $47 million of that, assuming a 50-50 split of the fees in 4,500 cases with the firms that referred them.
Henderson declines to comment on such speculation, but says critics who accuse him and other plaintiffs lawyers of unjust enrichment at the expense of their clients are off base. He says that he and four other leading asbestos plaintiffs lawyers, in response to complaints by Manville officials that plaintiffs counsel were taking too big a slice of the pie, have agreed to contribute to a special fund for the benefit of asbestos victims-25 percent of the fees they win in claims settled with the Manville trust that arise after the company’s November 28, 1988, emergence from bankruptcy.
In addition, Henderson asserts, many asbestos cases are still bitterly contested by defendants like Owens-Corning Fiberglas Corporation, Owens-Illinois Glass Company, and Celotex Corporation. Efforts at promoting various global settlement schemes have largely foundered, and Henderson says some of the key defendants are litigating every case to the eyeballs. One week in January, Henderson’s firm had five active asbestos trials going on at a time.
One reason for this is that many of the new claims, brought by people whose illnesses are less severe or who were exposed to relatively low levels of asbestos dust, are weaker than the old ones. "The cases are not as good and more sophisticated defenses are being interposed by more and better defense lawyers," Henderson says. In addition, the soaring number of asbestos claims presents remaining nonbankrupt defendants with such potentially ruinous liabilities that they have an incentive to fight plaintiffs every step of the way.
AGENT ORANGE ASSISTANCE
Henderson took time out from asbestos litigation for what turned into seven months of total immersion in the Agent Orange class action, from September 1983 until the May 1984 settlement. It was, he says, a personal "ordeal" that took him away from his wife and two children for the better part of seven months, plunged him into rancorous squabbling among plaintiffs attorneys, and left him feeling "grossly uncompensated" after a fee award of $515,000, based on a rate of $225 an hour. But he says, "It was an important thing to do."
Thousands of Vietnam veterans were convinced that their cancers, liver disorders, and other ailments, as well as their children’s birth defects and their wives’ miscarriages and stillbirths, had been caused by dioxin impurities in Agent Orange-the defoliant used by the U.S. military in Vietnam. With little hope of overcoming the government’s sovereign immunity, the veterans aimed their suits primarily at the producers of the herbicide-the nation’s largest chemical companies.
The case derived unique emotional and political appeal from the veterans’ powerful grievances against their country and claims on its sympathy. But it faced a daunting array of obstacles. These included the nascent government contractor defense, the impracticability of providing adequate notification to members of the class, and huge difficulties in proving causation; it was virtually impossible to determine whether any particular veteran’s ills had been caused by Agent Orange.
Henderson and other reinforcements were asked to help by Victor Yannacone of Patchogue, New York, and other lawyers who had put the case together, at a time when they badly needed an infusion of new cash; Henderson says he put up more than $250,000 by the end. They also needed his brand of expertise in proving complex toxic exposure cases. He says he accepted the invitation despite the vast time commitment and risks posed by the case because he believed in the veterans’ cause, because "I was capable and no one else was willing and capable" of putting together the "incredibly complicated" medical and scientific case against Agent Orange, and because "I fully expected to be handsomely rewarded in the event of success."
Becoming one of the lead lawyers for the class, he took charge of preparing the scientific case, mainly a mix of studies showing dioxin to be highly carcinogenic at certain levels-to test animals, at least-and medical testimony. With then-chief judge Jack Weinstein of federal district court in Brooklyn pushing the lawyers hard to be ready for trial starting May 7, 1984, Henderson poured his energy into creating a causation case that would be "a truly elegant piece of legal architecture."
Anything but elegant were the names Henderson called some opposing lawyers for giving his experts a hard time in extraordinarily acrimonious depositions. And less than elegant was his reaction to an adverse ruling by a magistrate on a discovery issue: One defense lawyer recalls him throwing a deposition transcript across the courtroom in disgust. Confirming the story, Henderson notes with a rueful laugh that the transcript hit one of his co-counsel in a delicate spot: "There wasn’t any upside to that; that wasn’t going to get me any points with the magistrate."
Judge Weinstein put intense pressure on the parties to settle, holding over the defendants the threat of a jury trial that might end in a huge award and over the plaintiffs lawyers the threat of losing the entire case. On the eve of trial the seven chemical company defendants and the lawyers for the class (including Henderson) agreed to settle for $ 180 million. This figure, less than some of the defendants would have been willing to pay, was chosen mainly because it appealed to the judge, according to Agent Orange on Trial, the excellent book on the case by Professor Peter Schuck of Yale Law School.
While this outcome was in some ways a monumental achievement for the plaintiffs and the judge, it pleased almost nobody except for some of the defendants, who thought they got a good deal compared to the risks of a jury trial. Least of all did it please the veterans, many of whom complained bitterly that the lawyers had sold the chance to prove the guilt of the companies too cheap. So numerous are the claimants that even veterans with severe problems will receive only a relative pittance-an estimated average award of only $5,700 for permanent disability, for example.
As for Henderson, he supported the settlement but took great umbrage at Judge Weinstein’s disparagement of the evidence offered to prove that Agent Orange caused the veterans’ injuries. In explaining his unusually parsimonious fee award for the plaintiffs lawyers, the judge said that they had "shown no factual connection of any substance between the diseases and the alleged cause," and that "I do not believe it desirable to encourage cases like this." Weinstein praised Henderson’s work as "consistently outstanding" and was more generous with him than with most of the plaintiffs lawyers. But he said lawyers should "think at least twice before initiating sprawling, complicated cases of highly questionable merit that will consume time, expense, and effort… in a degree vastly disproportionate to the results eventually obtainable."
Weinstein’s comments were all the more stunning to Henderson and his allies because they came from a judge known for uncommon intelligence and liberal inclinations. Weinstein had expressed great sympathy for the plight of the ailing veterans and their families and excoriated the government for doing too little to help them, while pushing the companies to pay the largest personal injury settlement to that point in history. But when he had to confront directly the factual basis for the veterans’ claims to compensation, Weinstein awarded summary judgment to the defendants on the claims of veterans who had opted out of the class action. And, based on his view that Agent Orange had not been proved guilty of causing any of the veterans’ problems other than a skin rash, Weinstein (over Henderson’s vigorous objections) dispensed with any requirement that veterans and survivors seeking a share of the settlement fund produce evidence that their ailments had been caused by Agent Orange. He said to do so would have consumed the fund with huge administrative costs in a vain effort to prove the unprovable. So what began as a massive tort suit ended, in Henderson’s words, in a complex "social welfare program ordered by the court," one that was bitterly denounced by many of its beneficiaries.
A SYSTEM OUT OF CONTROL?
The asbestos and Agent Orange cases are just two in a staggering volume of mass toxic tort suits set in motion by lawyers like Henderson in the past 15 years:
Product liability suits by purported victims of asbestos-caused diseases have mushroomed from a few hundred in the mid-1970s, to 16,000 when Manville filed its Chapter 11 petition in 1982, to a total of more than 90,000 today, more than 24,000 of which have been resolved. Five other companies in the asbestos industry followed Manville into Chapter 11. Estimates of unfiled future claims range far above 100,000. While nobody seems to know exactly how much has been paid out by the dozens of defendants and their insurers in litigation costs and settlements, conservative estimates begin well above $2 billion, with probably more than $3 billion yet to be paid; available funds are likely to be exhausted before all those injured by asbestos have been compensated, experts say. Multibillion-dollar lawsuits for the costs of removing asbestos from buildings are picking up steam.
The Agent Orange litigation grew from its inception in 1978 to become the largest class action in history, potentially including all 2.4 million Vietnam veterans and their families, and almost 1,500 plaintiffs law firms. It was settled for $180 million in May 1984, on top of more than $100 million that the defendants alone spent to prepare for trial. More than 250,000 veterans and family members filed preliminary claims against the settlement fund. Payouts from the settlement fund, which has grown to $240 million including interest, have been held up by administrative difficulties and appeals that were finally resolved last June.
A. H. Robins Company took refuge in Chapter 11 in August 1985 from an onslaught of 14,000 personal injury claims by women who had used the Dalkon Shield intrauterine device. The company had already spent $530 million settling some claims and fighting others. Federal district judge Robert Merhige, Jr., of Richmond has set up a $2.4 billion trust fund to settle claims of about 200,000 women who say the Dalkon Shield caused their infections, sterility, and other injuries.
More than 6,000 plaintiffs in 40 states brought more than 600 lawsuits against drug companies that made and marketed DES, a drug to prevent miscarriages that was prescribed to more than 1 million pregnant American women between 1947 and 1971, when it was linked to a rare type of cancer in daughters of the women who took it.
Claims of personal injuries and property damage due to ground water pollution and other problems at toxic waste dumps have led to liability payments, including Hooker Chemical Company’s $20 million settlement in 1985 with 1,300 current and former residents of the Love Canal area in upstate New York, and multimillion-dollar judgments and settlements involving dumps at Jackson Township, New Jersey; Triana, Alabama; Woburn, Massachusetts; Times Beach, Missouri; and elsewhere. Many experts predict a wave of cases like these around the country.
The Union Carbide Corporation agreed this February to pay $470 million in damages to the Indian government to settle claims from the December 1984 leak of poison gas from the pesticide plant in Bhopal, India, which killed more than 3,000 people and injured more than 200,000.
Neighbors of the uranium-processing plant at Fernald, Ohio, that for years contaminated its environs with radioactive materials filed a $300 million class action last year against National Lead of Ohio, Inc., which operated the plant for the Energy Department.
Nonetheless, toxic tort cases still represent only a small fraction of all personal injury litigation. In the past two or three years they have not continued to mushroom as relentlessly as some predicted; whether this represents a brief hiatus or a long-term leveling off is unclear. But given the public fears and scientific uncertainties concerning the carcinogenic and other dangers of new synthetic chemicals, toxic wastes, and atomic radiation, there is at least a potential for explosive growth.
Discussion of the problems presented by mass tort litigation spills over into more general debate about the "liability crisis" and about whether the entire system is so out of control that it should be drastically overhauled or abandoned.
Among the recurring questions: Has the tort system come to impose such unpredictable and burdensome costs on economic activity as to harm America’s productivity and its international competitiveness? Does it make sense to empower juries rather than regulatory agencies to pass ultimate judgment on which products are unreasonably dangerous? Is a system in which lawyers and the litigation process usually consume more than half (often more than 60 percent) of the money paid out, and in which similar claims meet with wildly dissimilar success, the best way of getting compensation to injured people?
The most thoughtful experts in this area, like Schuck, McGovern, and Professor Robert Rabin of Stanford Law School, seem to agree that the status quo is unsatisfactory, but that acceptable alternatives to the tort system are not apparent. Casual students of the subject who enter the fray exhibit more audacity than good sense.
Nonetheless, here goes. Looking at the two mass toxic tort litigations in which Tom Henderson made his reputation, it seems to me that the asbestos cases show the tort system working badly but on the whole no worse than could be expected of any alternative mechanism yet proposed, while the Agent Orange case shows the tort system stretched utterly beyond its institutional capabilities. The critical difference between the two is the speculative nature of the Agent Orange plaintiffs’ scientific case that the herbicide caused their afflictions.
In most asbestos cases-those involving the "signature" diseases asbestosis and mesothelioma-as in the DES cases, proof that the defendant’s product caused the plaintiff’s illness is relatively straightforward. Proof of causation is more speculative in asbestos cases involving such diseases as lung cancer, especially where smoking is a factor. But the major reason the asbestos litigation has imposed such huge burdens on the courts and litigants is the sheer number of seriously injured people and the correspondingly high stakes for the defendants and their insurers. The best hope for processing these cases more efficiently probably lies in incremental procedural reforms aimed at consolidating trial of common issues in groups of cases.
In Agent Orange-like cases, on the other hand, the plaintiffs’ theory of causation depends on heroic extrapolations by hired experts, from mouse experiments and from epidemiological studies. Jurors are presented with premises-debatable factually-that toxic substances may have marginally increased the statistical risk of illness in some group of people and asked to draw the conclusion that the generators of the substances should compensate each member of the group who contracts the illness. These causation issues "are only going to become more difficult," Henderson notes, in cases involving cancers and other long-latent ills allegedly caused by toxic pollution of ground water supplies.
A central and vexing issue is whether Agent Orange-like cases- in which no causal link between the defendants’ actions and the plaintiffs’ injuries is established with anything like mathematical probability-should ordinarily be kept away from juries and dismissed before trial. I am inclined to think that they should be, with the important qualification that shifting the burden to the defendants to disprove causation may be justified if there is evidence that they deliberately disregarded or concealed substantial risks.
Henderson vigorously maintains that the plaintiffs had legally sufficient evidence that Agent Orange seriously injured tens of thousands of veterans, and he submitted to Judge Weinstein an 80-page "Plaintiffs’ Memorandum on Causation" after the 1984 settlement to counter the judge’s statements to the contrary. He says Weinstein "was quite rigid … in his adherence to some statistical notion of causation." Peter Schuck, in his book, and Professor Charles Nesson of Harvard Law School agree to a point, contending that Weinstein erred when he denied the opt-out plaintiffs a jury trial, because the causation case turned in part on assessing the credibility of the plaintiffs’ experts.
But would such a low burden of proof in toxic tort cases invite a flood of dubious claims? It is all too easy to find an "expert witness" with the requisite qualifications who, for a fee or for a cause or for some other reason, will contradict a virtual scientific consensus on complicated issues of causation. It should take more than this to get a mass toxic tort case to the jury. Schuck himself agrees with the judge that the Agent Orange plaintiffs did not prove causation; he argues that nonetheless the jury should have been permitted to find the contrary. This boils down to saying that where science cannot provide clear guidance, juries should be free to use pure guesswork in imposing huge liabilities on corporate defendants; it would require defendants to compensate injuries that were in all likelihood caused not by them but by others, or simply by fate.
When professionals as sophisticated as Weinstein, Schuck, and Nesson (who unlike Henderson had no direct interest as advocates in the case) can come to such different conclusions about whether a jury could properly have found that Agent Orange legally caused the plaintiffs’ injuries, should we be asking a jury to resolve such issues at all?
It may make sense to turn to the jury to resolve disputes that scientific evidence cannot illuminate when the ultimate judgment is a moral one. There the jury serves as the conscience of the community. But determining what liabilities should attach to economically productive activities that pose scientifically unquantifiable risks, like those posed by many toxic substances, calls for a difficult type of cost-benefit analysis that juries are neither instructed in nor qualified to perform.
Many juries having such cases dumped in their laps will be understandably tempted to throw up their hands at the welter of conflicting expert testimony and simply find a way to compensate injured plaintiffs at the expense of deep-pocket defendants. At the very least the results are likely to be simply random.
And when, as is often the case, plaintiffs use dubious expert testimony to attack a product like the Copper-7 intrauterine device in a succession of jury trials, the defendant can win almost all the cases but still suffer ruinous liability in the few it loses, not to mention massive litigation costs.
Threatening corporations with such indiscriminate liability is not a sensible way to deter corporate conduct that does cause injuries. And it is a grossly inefficient and inequitable way of compensating injured people. Inefficient because legal fees and costs, especially high in latent toxic injury cases, eat up well over half the money paid out by defendants. Inequitable because some injured people will be greatly overcompensated- with tort recoveries swollen by damages for pain and suffering and punitives on top of their own medical and disability insurance-while others, similarly injured, will get nothing.
A BLUNT INSTRUMENT
The trend of modern tort law has been to make it easier for plaintiffs represented by lawyers like Henderson to bring Agent Orange-type suits based on speculative theories of causation.
The reasons for this evolution are understandable. Given that regulatory agencies frequently fail to provide vigorous protection against toxic harms, and given widespread public fears about long-term health threats that are all the more insidious because they are scientifically un-provable, the courts have been turned to as safety regulator of last resort. Watered-down standards of causation that give juries a roving commission to impose huge liabilities on companies that may well have harmed nobody may be the only alternative to letting defendants spew possibly dangerous carcinogens into the environment without fear of liability.
Accordingly, some scholars, judges, and lawyers (including Henderson) have developed theories for shifting the burden to defendants on the causation issue in toxic exposure cases whenever there is what specialists call "probabilistic" evidence that the defendant’s conduct increased-even if only by a relatively small percentage-the plaintiffs’ risk of getting sick. Each plaintiff is to be paid according to a formula that factors in the percentage of probability that the toxic exposure caused any one plaintiffs illness and the proportion of exposure for which any one defendant is responsible.
But lawsuits are simply too blunt an instrument to fine-tune regulation of all toxic risks according to such deceptively precise formulas. When the tort system seeks to fill perceived regulatory gaps by imposing liability for ills that quite likely were not caused by any of the defendants, it has moved a bridge too far.
The least bad remedy for inadequate regulation in areas of such great scientific uncertainty is better regulation. Substituting guesswork skewed by jury sympathy for scientific proof of causation seems more likely to chill useful innovation than to deter unsafe conduct, especially because the cost of liability in such cases is inflated by legal costs, punitive damages, and pain-and-suffering awards far above the real economic loss involved. And, as Peter Schuck says in his Agent Orange book, an approach "in which individual A is compensated by company B even though A may not have been harmed by B or indeed by any responsible actor (other than Mother Nature)… might well destroy whatever residual moral justification remains for shifting A’s loss to B through tort adjudication."
Tom Henderson contends, between bites of popcorn, that the uncertainty and unpredictability that corporations now face, with the threat of big damage awards hanging over them, is necessary "to keep these damned companies from institutionalizing the costs of cancer and pricing their products accordingly." But his point loses force when no causal link is established between the corporate conduct for which liability is imposed and the injuries being compensated. Henderson and others in the asbestos litigation succeeded by proving causation. And the costs to society of making it too easy for plaintiffs to impose liability without such proof is illustrated by the birth defect litigation against Merrell-Dow Pharmaceuticals Inc., the maker of the morning sickness drug Bendectin.
The Food and Drug Administration, the weight of expert opinion, the clear majority of the judges and juries, and three federal appeals courts that have weighed the issues have concluded that Bendectin is safe. But a handful of expert witnesses hired by plaintiffs and juries have disagreed, including one District of Columbia jury that in July 1987 awarded a plaintiff $95 million in damages (later set aside). Faced with the threat of big verdicts and many millions in defense costs, Merrell Dow pulled the drug from the market in 1983, a decision that it says it will not revisit even after its litigation successes. Since 1957, 33 million women have used Bendectin; women seeking relief from morning sickness now are out of luck. Because of such litigation major drug companies have also largely withdrawn from developing and marketing products for pregnant women.
MORE PERVASIVE EVILS
To tort reformers like Peter Huber of the Manhattan Institute, the special problems illustrated by mass toxic tort cases like the Bendectin case are only aspects of far more pervasive evils visited on America by the vast expansion of liability that began about 35 years ago.
In his 1988 book, Liability: The Legal Revolution and Its Consequences, Huber traces the revolutionary changes in legal doctrines engineered by idealistic liberal judges and scholars seeking a brave new world of risk-avoidance and risk-spreading through insurance. It is clear that they transformed the tort system into a more powerful and arguably more destructive engine for imposing liability than it ever was before; the dispute is over whether these changes bought enough safety to justify their substantial economic costs.
Huber contends that the revolution in tort law had the unanticipated effect of deterring, not unreasonably dangerous conduct, but useful economic activities of entire industries, while setting off a continuing crisis in the market for liability insurance. Valuable products including intra-uterine devices, Bendectin, vaccines, and small airplanes have been driven up in price or out of the market; American productivity and competitiveness has suffered vis-‡-vis the rest of the world, where no such dra-conian regime of liability holds sway.
Obviously, at some level this involves a trade-off between productivity and safety. But Huber argues that the new tort regime has sometimes had the perverse effect of making life not more safe but less so. He asserts with some cogency that "the lay mind is accustomed to equate familiarity with safety," so that juries tend to focus on the dangers posed by new products and to ignore the offsetting benefits of these products in reducing preexisting dangers. The result, Huber says, is to penalize innovations such as new vaccines that harm a few people while bringing a tremendous net gain in safety to society as a whole.
Huber and other critics of the tort system, like Professor George Priest of Yale Law School, make some solid points. Their arguments that the tort system as a whole is out of control are not easily dismissed. But Huber exaggerates the problems posed by such doctrines as strict liability for defective products, which in most cases simply facilitates proof of negligence rather than dispensing with the element of fault. And as Francis McGovern says: "The excesses Peter Huber is talking about are five-year-old excesses. There’s always going to be either too much or too little deterrence; you can’t fine-tune it. The pendulum is swinging back, and the self-healing capabilities of the common law are remarkable."
THE PRESENT DANGER
There are, in fact, signs scattered across the landscape that the current trend is against runaway imposition of tort liability. The California Supreme Court, from which the voters ejected Chief Justice Rose Bird and two other liberals in 1986, is rolling back some of the expansive liability rules adopted under Bird and her predecessors. The New Jersey Supreme Court has strictly limited to asbestos litigation its oft-criticized 1982 decision in Beshada v. Johns-Manville Products Corp. that defendants can be held liable for having failed to warn of a risk that was scientifically unknowable at the time they created it.
The United States Supreme Court adopted a sweeping defense to tort liability for government contractors last year and is now considering whether the Constitution restricts punitive damages. Federal judges have shown increasing willingness in the past few years to throw out cases like the Bendectin suits for lack of convincing evidence of causation. The Reagan judges who occupy half of the seats on the lower federal courts tend to have a pro-defendant cast. Most states have adopted various "tort reforms" in recent years. Some trial lawyers report that juries, too, seem at least in some areas to be getting more conservative about imposing liability.
And for whatever reason, McGovern notes, no new mass toxic tort litigation on anything like the scale of asbestos, Agent Orange, Dalkon Shield, or DES has gotten under way in more than five years.
The present danger may, then, be less one of runaway liability than one of conservative overreaction.
The most radical critics of the current state of the tort system would so severely limit the ability of plaintiffs to win damages in product liability cases and the like as to put many plaintiffs lawyers out of business. One question for which they have no good answer is who would police dangerous activities and products if not plaintiffs lawyers with a large financial incentive to ferret out evidence about such matters. How, but for the Tom Hendersons of the world, would the internal company documents, depositions, and other evidence showing some major asbestos companies’ willingness to put workers and consumers at risk for the sake of business have ever come to light?
The chronic underfunding, recurrent political subversion, and industry influence over regulatory agencies like the Environmental Protection Agency, Food and Drug Administration, and Consumer Product Safety Commission give little basis for confidence in them as safety guardians of last resort. Regulatory determinations that a product or activity is safe are entitled to some weight, perhaps to conclusive weight, when they rest on scientific findings by responsible officials that a regulated product like Bendectin does not cause the type of injury of which the plaintiff complains. But to give regulatory approvals conclusive effect in tort suits generally, as some tort reformers would do, would ignore a long history of regulatory failure.
Still, after more than ten years of mass asbestos litigation, it is tempting to suppose that there must be a better way to settle such issues than deploying armies of lawyers all over the country, at huge cost, with courts in Philadelphia, for example, scheduling newly filed asbestos cases for trial in the year 2007. And in Francis McGovern’s words, even if "you need plaintiffs attorneys who have a financial incentive to uncover the harms that have not been prevented by the governmental regulatory process… once you’ve blown these cases open, it’s unconscionable to keep paying plaintiffs lawyers thirty-and forty-percent fees to keep processing thousands of cases."
Unfortunately, the more radical alternatives to litigation of asbestos and other mass toxic tort claims are not promising. An industry-funded administrative compensation scheme for asbestos-related diseases, for example, would simply move the endless arguments about the causation and severity of particular plaintiffs’ illnesses, the proper measure of compensation, and the disputes between the defendants and their insurers to another forum.
"It would get caught up in an administrative morass and the transaction costs would come up in another form, which is the government," Henderson says. He adds, "The government isn’t going to do any better." Any effort to dispense with rigorous proof of causation in such an administrative compensation plan would cause problems of exponentially increasing costs, payments to people who probably do not qualify, and incessant political wrangling over eligibility standards, like those that have given the federal black lung program for coal miners a bad name.
A broader social insurance plan to provide adequate compensation for all victims of disabling diseases and conditions regardless of cause might be nice, and would be a far more efficient and equitable compensation vehicle than the tort system. But it would be hugely expensive (in fact, such a system in New Zealand has flirted with bankruptcy) and isn’t about to happen.
The most realistic hope for more fair and efficient processing of mass toxic tort claims like the asbestos cases may lie in more modest procedural changes, proposed by experts including McGovern, to encourage use of class actions or other devices to consolidate trials of common issues in mass toxic tort cases, followed by more routinized, systematic classification of individual claims. The goals would be to cut down on litigation costs and to facilitate settlement or streamlined adjudication, with like claims being treated alike rather than thrown into a litigation lottery.
Panels of the American Bar Association and the American Law Institute are considering proposals for new legislation along these lines, and in fact steps down this road have already been taken by necessity in such cases as the Manville and Robins bankruptcies, the Agent Orange class action, and Jenkins v. Raymark Industries, Inc., a 703-plaintiffasbestos class action that was certified in 1985 by federal district judge Robert Parker of the Eastern District of Texas. McGovern, a one-man whirlwind of mass toxic tort activity, acted as special master for Judge Parker and is doing the same now for Judge Merhige in the Dalkon Shield-Robins bankruptcy proceeding.
Among the attractions of aggregating mass toxic tort cases for consolidated resolution of common issues is that the judge has the power in such a context to hold the plaintiffs lawyers’ fees down to a reasonable percentage of the recovery, in light of all the circumstances. That is what Judge Weinstein did in the Agent Orange case, much to the chagrin of Henderson and most of his colleagues. It is what Judge Parker did in the East Texas asbestos class action.
Another attraction of a consolidated trial is that it avoids inconsistent verdicts in serial jury trials, including the danger for defendants that no matter how many juries they convince their products are safe, they may still face a never-ending threat of liability as long as there is one more plaintiff out there.
Unfortunately, judges with the ability and boldness to manage mass tort litigation effectively are rare, and must necessarily exercise extraordinarily broad discretion with all the attendant dangers of error and abuse. "Federal judges with guts and imagination like Weinstein and Merhige are the kinds of people that make these cases manageable," says David Gross of Short Hills, New Jersey’s Budd Larner Gross Picillo Rosen-baum Greenberg & Sade, who represents Manville on a national level and has represented defendants in the Dalkon Shield and Agent Orange litigation. "It requires innovation; you’ve got to work to some extent within the rules but you’ve also got to bend them."
Schuck’s book demonstrates that many of Weinstein’s decisions in the Agent Orange case "represented a sound (or at least defensible) exercise of policy discretion masquerading as the rule of law." Such naked judicial policy-making may have been the inevitable consequence of Weinstein’s determination to compensate disabled veterans despite their inability to prove their case.
For cases in which there is proof of causation, on the other hand, it is probably through incremental steps to promote efficiency and fairness case by case, like consolidated discovery and trials, rather than through any grand effort to cut the Gordian knot of mass toxic tort litigation, that the system will have to continue muddling through.