What's New and Old About Asbestos Litigation?

By Professor Georgene Vairo

On October 1-2, the ABA TIPS Asbestos Litigation Task Force held its second round of hearings at Loyola Law School, Los Angeles. The Task Force was created to study the current state of asbestos litigation and consider ways in which fairness for both claimants and defendants can be achieved. The L.A. hearing, as well as an earlier hearing in Washington, D.C., revealed deep divisions among plaintiffs' attorneys and defendant attorneys on what needs to be done to deal with current aspects of what the U.S. Supreme Court once described as an "elephantine mass." Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).

A 1991 Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991) sets forth the challenge: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."

We are only two years away from that date, and the asbestos litigation has morphed significantly and shows no sign of abating any time soon. Back in 1991, the Judicial Conference report identified numerous problems: growing dockets in state and federal courts; delays in getting to trial; long trials with complex issues being litigated over and over; transaction costs that dwarfed any recovery. Additionally, "the exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." One piece of "good news" is that the federal MDL that was established in the same year is near completion of the resolution of most of the cases filed in the federal courts.

Expert Analysis of Standard Fire Insurance Co. v. Knowles

Professor Georgene Vairo, an expert on class-action litigation who teaches and writes in the areas of mass torts, weighs in on Standard Fire Insurance Co. v. Knowles, argued before the Supreme Court on Jan. 7:

Key Issue: Can a plaintiff stipulate to damages below CAFA's federal jurisdictional threshold of $5 million where the aggregate claims of all class members exceed that amount?

Key Takeaway: The case comes down to a choice between allowing plaintiffs to openly manipulate CAFA's jurisdictional requirements, as well as scaling back the "master of the complaint" rule.

Prediction: I hope Justice Kagan writes the majority opinion. She reminded the defendant that there are two better options than requiring removal at this time. If the case is worth far more than $5 million, then the plaintiff is not an adequate representative of the class. If the plaintiff tries to play around once back in state court and get more than $5 million, then the defendant can remove again.

Wal-Mart - Beyond Employment Discrimination Law

By Professor Georgene Vairo

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

My dear colleague, Michael Waterstone, already has weighed in on the Supreme Court's decision in Celotex Corp. v. Catrett, Anderson v. Liberty Lobby, and Matsushita Elec. Industrial Co. V. Zenith Radio it adopted an approach to Rule 56 that, while sensible, overturned the prevailing view that summary judgment ought to be granted sparingly because a plaintiff's right to jury trial was at stake. The Court piled on when it decided Kumho Tire Co., LTD v. Carmichael, the Court made the district court a gatekeeper-- keep out the junk science that plaintiffs use to defeat motions for summary judgment. Although empiricists disagree as to the extent to which the 1986 and Daubert trilogies resulted in more summary judgments or not, they certainly sent a message.

I said above that the 1986 Trilogy was "sensible" because I believed in what Justice Rehnquist said in Celotex v. Catrett --summary judgment should be "put up or shut up" time. If a plaintiff has had enough time for discovery, and it is apparent that it lacks evidence on a material issue of fact, there really is no reason for a trial. Although I have always bought into that notion, there was much loose and troubling language in the Trilogy cases. To paraphrase: "District courts ought not evaluate the evidence-- that is the province of the jury-- but they ought to take into account the quantum and quality of the evidence." Is that not weighing? In one of the cases (Matsushita), an antitrust case, the Court said that when deciding whether to grant summary judgment, the court ought to look at whether the plaintiff's claims are "plausible."

The Preclusive Effect of a Federal Court Denial of Class Certification

By Professor Georgene Vairo

My colleagues, Michael Waterstone and David Horton have already weighed in on two of the big three class action cases before the Supreme Court this term. I will talk about the third.

Provocatively but aptly titled "Will arbitration kill the consumer class action?", David's article noted that in AT&T v. Concepcion, the Supreme Court will decide whether the Federal Arbitration Act (FAA) preempts state courts from striking down class arbitration waivers under the unconscionability doctrine. As he put it, "contract procedure" enthusiasts are on the edge of their seats anxiously awaiting the Court's ruling. The Court will have to balance its general trend in favor of favoring arbitration against it's the ideals of federalism which should enable state's to provide their citizens with greater protections than those afforded by federal law.

Michael talked about Wal-Mart v. Dukes, which is likely to have huge implications for both employment discrimination and class action law. Plaintiffs are a class of female Wal-Mart employees alleging sex discrimination. The Ninth Circuit whittled down a class of about 1.5 million employees to 500,000. Yet, the class still may be the largest-ever gender bias class action case. The Supreme Court's order granting certiorari looks at two important questions: 1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under, what circumstances?

The answer to this question will resolve a circuit split on the issue of to what extent monetary damage claims are allowable in a 23(b)(2) class action; and 2) whether, when determining whether a Rule 23(b)(2) class may be certified when the plaintiffs' evidence--including statistical proof of disparities between men and women, anecdotal evidence, and expert proof on social framework analysis showing susceptibility to gender bias in the management structure--arguably establishes a common issue, as required under Rule 23(a), of a corporate-wide policy of discrimination? Attorneys who practice discrimination law of any type as well as all class action lawyers await the Court's answers to these questions because they will go a long way in determining the contours, in terms of size and remedies, that will be available to plaintiff classes in the future.

Prof. Georgene Vairo discusses environmental torts at RAND

Professor Georgene Vairo gave a presentation at RAND in their policy series on "The Long Tail of Environmental Liability Litigation," discussing the the Chevron/Ecuador litigation and the BP litigation stemming from the Deepwater Horizon disaster.