Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.
Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.
Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero. The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders. After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.
The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002. After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court. In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015). Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky.
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute. Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages. Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.
Background of the WTC Litigation and the new September 11 Victim Compensation Fund
By way of background, immediately after September 11, New York City had to coordinate vast numbers of agencies, public health officials, uniformed officers, contractors and laypeople to clean up Ground Zero. According to one FDNY report “the complexity of the activity performed at one site—rescue, recovery, demolition, and construction—at one time" was simply unprecedented. (See New York City Fire Department. New York City Fire Department’s Deputy Assistant Chief Report No. 2003-P-000124).
The recovery effort was dangerous and hectic--firefighting in toxic fumes, urban search and rescue, removing and demolishing hazardous materials from what came to be known as the "pile." And while some of the earliest responders to the WTC attacks were trained FDNY and New York police officers, many other responders--like electricians, ironworkers, demolition contractors, and volunteers--had never been trained in, or even advised about, how to use proper personal protective equipment. Soon stories about unusual respiratory diseases, gastro-intenstinal illnesses and cancers among young recovery workers mounted. Over 11,000 claims were filed in federal court, centralized before Judge Hellerstein, and settled in December 2010. Congress also acted. In the waning days of 2010, it reopened the September 11 Fund and set aside $2.8 billion to compensate what it estimated to be over 30,000 eligible workers at Ground Zero, in just five years.
Both settlement systems share remarkable similarities. Both involve talented and experienced special masters, seeking to develop streamlined procedures to handle the same bewildering array of injuries in the aftermath of September 11. And from the beginning, each settlement effort faced the same enormous challenge: how to come up with a way to divide limited funds to accommodate thousands of claims, asserting over 380 different kinds of personal injuries, using novel scientific theories of causation? Despite their similarities, however, the Victim Compensation Fund and the WTC settlement relied on different tools to gather information and distribute funds.
The September 11 Fund and the WTC Health Registry
The September 11 Victim Compensation Fund relies on an innovative administrative scheme. It's decisions are informed by a decade-old "health registry," established shortly after September 11, that today monitors more than 70,000 people. To enroll, people completed a confidential baseline health survey in 2003. Each enrollee answered questions about where they were on September 11, their experiences and their health. This data not only allows health professionals to continue to compare the health of those directly exposed to the WTC disaster to the health of the general population, but it provides a nice way for the Fund to compensate difficult-to-confirm injuries based on the latest available science.
This is because, by statute, the National Institute for Occupational Safety and Health (NIOSH) at the CDC periodically canvasses studies informed by this database. 42 U.S.C. sec. 300mm–22(a)(5)(A). The Victim Compensation Fund, in turn, relies on NIOSH's review and recommendations to determine and update what categories of illness are eligible for compensation. This expert-driven process is commonly used by administrative agencies—like the FDA and EPA.
By contrast, because it was a court settlement, Judge Hellerstein originally approved an overarching deal based on the best scientific information he had in 2010. That presented what the court and his Special Masters called a "gut wrenching" problem for cases involving cancer. Because of the long latency periods between exposure and the onset of cancer, at the time, there wasn't much evidence linking toxic exposure near the World Trade Center to the cancers suffered by the plaintiffs. As a result, under the original settlement, some severe asthma claims stood to be compensated more than cancer claims. (The September 11 Victim Compensation Fund originally denied cancer claims, altogether. But it was able to change course and begin compensating victims with cancer based on new studies published in June 2012 (despite ongoing controversy in the scientific community.)
The registry has some drawbacks. First, it's under-inclusive--not everyone who is sick today had the foresight to sign up back in 2003. Second, the registry probably doesn't contain all of the information needed to draw comparisons between exposure and the onset of an illness (like whether the people in the registry were already at a higher risk of getting cancer because of family history or other risk factors). But the program nonetheless represents an amazing undertaking. With the exception of the "Ranch Hand" study, which has tracked vietnam veterans exposed to Agent Orange since 1978, the size and duration of this monitoring effort is almost without precedent. Today, the WTC Health Registry is the largest registry to track the health effects of a disaster in American history.
The WTC Litigation and the "Core Discovery" Database
The WTC litigation enjoyed a different informational advantage. Unlike the Fund, which would not know how to rank claimants' very different injuries or anticipate tough evidentiary problems until well into the claim process, private litigants were able to structure their settlement with information about everyone else’s claim in federal court. This was, in part, because of the Court’s unique “core discovery" order—one which gathered personal, occupational, medical, geographic and other detailed information about all of 11,000+ claims already filed in federal court.* Those claims were coded, and the results were entered into a searchable electronic database.
Although a central purpose of multi-district litigation** is to coordinate discovery just like this, the innovative use of technology, participation and searchable information in such a massive litigation was new and indispensable to the final settlement. Information gleaned from the database helped the parties select "test cases" and understand how the resolution of one case would impact other similar cases. Judge Hellerstein, James Henderson and Aaron Twersky later observed:
[T]he ability to perform Boolean searches covering thousands of plaintiff files allowed the Special Masters to determine interrelationships between and among responses. For example, not only could the age distributions of plaintiffs, the frequencies and severities of each type of disease, and the variety and frequency among plaintiffs’ pre-existing medical conditions be determined; but it was possible to identify correlations between the ages of plaintiffs and the severities of injuries suffered and whether the length of the plaintiffs’ exposure to the WTC site increased the severity of injury. Thus, by adding or subtracting from the criteria reflected in the various fields one could discern which factors strongly correlated with the severity of injury and which factors had a lesser impact, or no impact at all.
The VCF cannot rely on such a database, upfront--claims come in one at a time. And while the "health registry" helps assess general relationships between exposure and disease, it does not collect the kind of detailed information about people available in court-ordered discovery, nor does it include everyone eligible to apply to the Fund). To be sure, the Fund has other ways to collect information about all claimants. First, claimants only receive 10% of their awards upfront. Claimants then must wait until 2017, after everyone has filed, before they can collect the remainder of their awards. In some ways, this unique feature of the VCF gives its decisionmakers some flexibility to adjust awards depending on the number and nature of all other known claims.
Second, the VCF has made Herculean efforts to reach out to other institutions--like New York City, employers, other general contractors, and victims groups--to obtain information about prospective claims. Not only can the VCF process claims faster with that information, but such coordination allows the fund to see and learn more about its claimants before they file with the VCF. (And indeed this seems to be working, after a slow start, the fund now appears to be adjudicating cases faster then ever).
Conclusion
Over the past 15 years, the Supreme Court has significantly limited the ability of courts to certify class actions in mass tort cases. The fear is that conflicts of interests and individual issues will overwhelm any attempt at meaningful adjudication. Some have suggested that the Supreme Court's jurisprudence in this area follows Lon Fuller's classical account of adjudication. Fearing that any attempt to comprehensively hear complex, multiparty actions will lead to coercive court-house dealmaking -- what Fuller labeled "polycentric" disputes that were best solved through negotiation and management -- the Supreme Court has insisted that such issues are better resolved through legislation, administrative schemes and public law. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (reversing complex settlement that “defies customary judicial administration and calls for national legislation”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 42 (Mar. 1991).
To that end, the new September 11 Victim Compensation Fund represents just such an effort. Congress created an administrative agency to determine eligibility standards, evaluate claims and distribute funds for each recovery worker at Ground Zero. Based on an expansive study of New Yorkers in the wake of September 11, that agency, in turn, could update its process by consulting the country’s leading facility for the study of WTC-related disease. But like many public funds of its kind, the September 11 Victim Compensation Fund won't know who will decide to participate or the unique evidence require to establish some difficult claims until far into the application process.
Judicial decisions cannot be as flexible as adminstrative decisions, and I don't want to suggest that courts predict claim filings well. (Parties to mass settlements can have a lot of trouble predicting the future.) But innovations in technology and judicial case management have allowed parties in court to know a great deal about the entire universe of pending claims and how to appropriately compensate them. Judge Hellerstein, with the assistance of two established tort scholars and the parties, generated a database of over 10,000 claimants with over 360 categories of injury.
In some ways, this technological fix is simply a natural extension of what all multidistrict litigation tries to do--allowing a single judge to coordinate discovery and categorize common groups of claims for resolution. But such strategies also offer a possible response to Fuller's view about the futility of adjudicating "polycentric" disputes--where the number of interested parties is so large, and the ramifications so vast, that it is impossible for each person affected by the decision to offer proofs and reasoned arguments. By adopting a unique and expansive form of data collection, Judge Hellerstein has introduced a modest way for courts to help parties chart the number, nature and interrelationship of claims for an otherwise, seemingly intractable dispute.
__
*Such information included the plaintiffs’ pedigree, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, workers’ compensation recoveries, hours worked, location of work, safety equipment worn, and training received.
**Technically, all cases were consolidated before Judge Hellerstein under the Air Transportation Safety and System Stabilization Act. The same act that created the original September 11 Victim Compensation Fund also gave the United States District Court for the Southern District of New York exclusive jurisdiction over all claims "arising from, or related to," the terrorist-related aircraft crashes of September 11, 2001
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute. Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages. Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.
Background of the WTC Litigation and the new September 11 Victim Compensation Fund
By way of background, immediately after September 11, New York City had to coordinate vast numbers of agencies, public health officials, uniformed officers, contractors and laypeople to clean up Ground Zero. According to one FDNY report “the complexity of the activity performed at one site—rescue, recovery, demolition, and construction—at one time" was simply unprecedented. (See New York City Fire Department. New York City Fire Department’s Deputy Assistant Chief Report No. 2003-P-000124).
The recovery effort was dangerous and hectic--firefighting in toxic fumes, urban search and rescue, removing and demolishing hazardous materials from what came to be known as the "pile." And while some of the earliest responders to the WTC attacks were trained FDNY and New York police officers, many other responders--like electricians, ironworkers, demolition contractors, and volunteers--had never been trained in, or even advised about, how to use proper personal protective equipment. Soon stories about unusual respiratory diseases, gastro-intenstinal illnesses and cancers among young recovery workers mounted. Over 11,000 claims were filed in federal court, centralized before Judge Hellerstein, and settled in December 2010. Congress also acted. In the waning days of 2010, it reopened the September 11 Fund and set aside $2.8 billion to compensate what it estimated to be over 30,000 eligible workers at Ground Zero, in just five years.
Both settlement systems share remarkable similarities. Both involve talented and experienced special masters, seeking to develop streamlined procedures to handle the same bewildering array of injuries in the aftermath of September 11. And from the beginning, each settlement effort faced the same enormous challenge: how to come up with a way to divide limited funds to accommodate thousands of claims, asserting over 380 different kinds of personal injuries, using novel scientific theories of causation? Despite their similarities, however, the Victim Compensation Fund and the WTC settlement relied on different tools to gather information and distribute funds.
The September 11 Fund and the WTC Health Registry
The September 11 Victim Compensation Fund relies on an innovative administrative scheme. It's decisions are informed by a decade-old "health registry," established shortly after September 11, that today monitors more than 70,000 people. To enroll, people completed a confidential baseline health survey in 2003. Each enrollee answered questions about where they were on September 11, their experiences and their health. This data not only allows health professionals to continue to compare the health of those directly exposed to the WTC disaster to the health of the general population, but it provides a nice way for the Fund to compensate difficult-to-confirm injuries based on the latest available science.
This is because, by statute, the National Institute for Occupational Safety and Health (NIOSH) at the CDC periodically canvasses studies informed by this database. 42 U.S.C. sec. 300mm–22(a)(5)(A). The Victim Compensation Fund, in turn, relies on NIOSH's review and recommendations to determine and update what categories of illness are eligible for compensation. This expert-driven process is commonly used by administrative agencies—like the FDA and EPA.
By contrast, because it was a court settlement, Judge Hellerstein originally approved an overarching deal based on the best scientific information he had in 2010. That presented what the court and his Special Masters called a "gut wrenching" problem for cases involving cancer. Because of the long latency periods between exposure and the onset of cancer, at the time, there wasn't much evidence linking toxic exposure near the World Trade Center to the cancers suffered by the plaintiffs. As a result, under the original settlement, some severe asthma claims stood to be compensated more than cancer claims. (The September 11 Victim Compensation Fund originally denied cancer claims, altogether. But it was able to change course and begin compensating victims with cancer based on new studies published in June 2012 (despite ongoing controversy in the scientific community.)
The registry has some drawbacks. First, it's under-inclusive--not everyone who is sick today had the foresight to sign up back in 2003. Second, the registry probably doesn't contain all of the information needed to draw comparisons between exposure and the onset of an illness (like whether the people in the registry were already at a higher risk of getting cancer because of family history or other risk factors). But the program nonetheless represents an amazing undertaking. With the exception of the "Ranch Hand" study, which has tracked vietnam veterans exposed to Agent Orange since 1978, the size and duration of this monitoring effort is almost without precedent. Today, the WTC Health Registry is the largest registry to track the health effects of a disaster in American history.
The WTC Litigation and the "Core Discovery" Database
The WTC litigation enjoyed a different informational advantage. Unlike the Fund, which would not know how to rank claimants' very different injuries or anticipate tough evidentiary problems until well into the claim process, private litigants were able to structure their settlement with information about everyone else’s claim in federal court. This was, in part, because of the Court’s unique “core discovery" order—one which gathered personal, occupational, medical, geographic and other detailed information about all of 11,000+ claims already filed in federal court.* Those claims were coded, and the results were entered into a searchable electronic database.
Although a central purpose of multi-district litigation** is to coordinate discovery just like this, the innovative use of technology, participation and searchable information in such a massive litigation was new and indispensable to the final settlement. Information gleaned from the database helped the parties select "test cases" and understand how the resolution of one case would impact other similar cases. Judge Hellerstein, James Henderson and Aaron Twersky later observed:
[T]he ability to perform Boolean searches covering thousands of plaintiff files allowed the Special Masters to determine interrelationships between and among responses. For example, not only could the age distributions of plaintiffs, the frequencies and severities of each type of disease, and the variety and frequency among plaintiffs’ pre-existing medical conditions be determined; but it was possible to identify correlations between the ages of plaintiffs and the severities of injuries suffered and whether the length of the plaintiffs’ exposure to the WTC site increased the severity of injury. Thus, by adding or subtracting from the criteria reflected in the various fields one could discern which factors strongly correlated with the severity of injury and which factors had a lesser impact, or no impact at all.
The VCF cannot rely on such a database, upfront--claims come in one at a time. And while the "health registry" helps assess general relationships between exposure and disease, it does not collect the kind of detailed information about people available in court-ordered discovery, nor does it include everyone eligible to apply to the Fund). To be sure, the Fund has other ways to collect information about all claimants. First, claimants only receive 10% of their awards upfront. Claimants then must wait until 2017, after everyone has filed, before they can collect the remainder of their awards. In some ways, this unique feature of the VCF gives its decisionmakers some flexibility to adjust awards depending on the number and nature of all other known claims.
Second, the VCF has made Herculean efforts to reach out to other institutions--like New York City, employers, other general contractors, and victims groups--to obtain information about prospective claims. Not only can the VCF process claims faster with that information, but such coordination allows the fund to see and learn more about its claimants before they file with the VCF. (And indeed this seems to be working, after a slow start, the fund now appears to be adjudicating cases faster then ever).
Conclusion
Over the past 15 years, the Supreme Court has significantly limited the ability of courts to certify class actions in mass tort cases. The fear is that conflicts of interests and individual issues will overwhelm any attempt at meaningful adjudication. Some have suggested that the Supreme Court's jurisprudence in this area follows Lon Fuller's classical account of adjudication. Fearing that any attempt to comprehensively hear complex, multiparty actions will lead to coercive court-house dealmaking -- what Fuller labeled "polycentric" disputes that were best solved through negotiation and management -- the Supreme Court has insisted that such issues are better resolved through legislation, administrative schemes and public law. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (reversing complex settlement that “defies customary judicial administration and calls for national legislation”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 42 (Mar. 1991).
To that end, the new September 11 Victim Compensation Fund represents just such an effort. Congress created an administrative agency to determine eligibility standards, evaluate claims and distribute funds for each recovery worker at Ground Zero. Based on an expansive study of New Yorkers in the wake of September 11, that agency, in turn, could update its process by consulting the country’s leading facility for the study of WTC-related disease. But like many public funds of its kind, the September 11 Victim Compensation Fund won't know who will decide to participate or the unique evidence require to establish some difficult claims until far into the application process.
Judicial decisions cannot be as flexible as adminstrative decisions, and I don't want to suggest that courts predict claim filings well. (Parties to mass settlements can have a lot of trouble predicting the future.) But innovations in technology and judicial case management have allowed parties in court to know a great deal about the entire universe of pending claims and how to appropriately compensate them. Judge Hellerstein, with the assistance of two established tort scholars and the parties, generated a database of over 10,000 claimants with over 360 categories of injury.
In some ways, this technological fix is simply a natural extension of what all multidistrict litigation tries to do--allowing a single judge to coordinate discovery and categorize common groups of claims for resolution. But such strategies also offer a possible response to Fuller's view about the futility of adjudicating "polycentric" disputes--where the number of interested parties is so large, and the ramifications so vast, that it is impossible for each person affected by the decision to offer proofs and reasoned arguments. By adopting a unique and expansive form of data collection, Judge Hellerstein has introduced a modest way for courts to help parties chart the number, nature and interrelationship of claims for an otherwise, seemingly intractable dispute.
__
*Such information included the plaintiffs’ pedigree, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, workers’ compensation recoveries, hours worked, location of work, safety equipment worn, and training received.
**Technically, all cases were consolidated before Judge Hellerstein under the Air Transportation Safety and System Stabilization Act. The same act that created the original September 11 Victim Compensation Fund also gave the United States District Court for the Southern District of New York exclusive jurisdiction over all claims "arising from, or related to," the terrorist-related aircraft crashes of September 11, 2001
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