TWO RECENT DEVELOPMENTS IN TOBACCO AND ASBESTOS CASES SHOW HOW MASS TORT LITIGATION SHOULD, AND SHOULD NOT, BE DONE

The past two weeks brought two lessons in mass tort litigation: one about how to do it (sort of), one about how not to do it (definitely). The two lessons involve - what else? - tobacco and asbestos litigation.

In the tobacco case, the event was unremarkable: last Tuesday, a judge reduced a jury award in the first-ever trial in which the tobacco companies were held liable for injuries caused by second-hand smoke.

In the asbestos case, the event was extraordinary: a request to the U.S. Supreme Court to stop a massive trial from going forward. On Monday, Chief Justice Rehnquist rebuffed the petition. As a result, West Virginia will now play host to as unwieldy a proceeding as has ever been attempted in an American court.

Both cases involve a large number of people claiming to be injured by something someone else made. And both cases are proceeding, essentially, in two stages. At the first stage, the parties address what is commonly called "general" causation: can this product cause this type of injury? At the second stage, the parties address in individual trials (so-called "mini-trials") what is commonly called "specific" causation: if this product can cause this type of injury, did it do so in a given, specific case?

Beneath these similarities, however, lies a world of difference.

The Florida Flight Attendant Litigation: Second-Hand Smoke on Trial

The tobacco case involves a class action proceeding in Florida courts, brought by non-smoking flight attendants suffering from various maladies related to cigarette smoking. As passengers of a certain generation will recall, flying used to involve (along with the piano bar in the back of the plane) lots of smoking.

In 1997, the major cigarette companies involved in the flight attendant suit made a deal. That deal was really the first stage of litigation. In it, the companies agreed to shoulder the burden of proof on general causation, which would otherwise be born by the plaintiffs. (Plaintiffs generally have the burden of proof on all elements of their cases, with rare exceptions.)

The West Virginia Asbestos Litigation

The West Virginia asbestos cases are different. They involve as defendants an extraordinary range of manufacturers and property owners responsible for exposing people to asbestos in an extraordinary variety of ways.

The West Virginia courts have approved a Stage I trial at which the "liability" (read: general causation) of all 800 companies will be determined in three simultaneous proceedings involving product liability claims, premises liability claims, and intentional torts. Thus, a single jury will be required to sort out, for example, the liability of all the product claims in a single proceeding.

At Stage II, the West Virginia courts contemplate mini-trials during which, according to the appellate court that approved the proceedings, the defendant won't be able to contest "liability" or general causation. The mini-trials would involve specific causation and damages, nothing more.

The Differences Between the Florida Tobacco Case and the West Virginia Asbestos Case

These two cases appear to use a similar approach to a single problem: how do we litigate the liability of a large number of defendants who appear to have done the same thing to a large number of claimants?

But that appearance is only superficial. Among several major differences between the cases, two - one involving Stage I, the other involving Stage II - stand out.

A Major Difference At Stage I: The Asbestos Trial Is Far More Complex

The tobacco cases involve a single product under a single set of circumstances - prolonged exposure in the confined space of an airplane cabin. And the tobacco defendants all had well-defined shares of the market. (Such shares can be basis for assessing damages in situations like these; courts do not force plaintiffs to prove exactly how many of which kind of cigarettes they smoked.)

But these differences pale in comparison to the task set before the Stage I juries in the asbestos case. There, a single trial jury will hear evidence about hundreds of manufacturers and their products. The jurors must, if they are to honor each defendant's due process rights, keep all of that evidence distinct. And they must reach a verdict separately as to each and every defendant and product.

When there are a large number of defendants, products, and claims, courts usually proceed with caution before asking a single jury to hear all of the evidence and reach verdicts that must, of necessity, be tailored to each one. And indeed, the consolidated asbestos cases that have actually contemplated trial have generally involved a handful of defendants (in the products cases, the number is in the teens; in the property cases, more). The proposed West Virginia trial is an order of magnitude more complex than that - and could be overwhelming to even the most capable of juries.

Compare the Florida tobacco case, which involves a single product and a single type of exposure. Asbestos is used in, for example, brake linings. For purposes of assessing liability, what type of exposure counts? That of auto assembly workers, mechanics, or drivers? And on what basis should a finding of liability in just one of these situations be used to tell a jury that "liability" has been proved?

Remarkably, the West Virginia courts overseeing this behemoth have not conducted any meaningful proceedings to determine whether this can even be done.

They have decided repeatedly that the cases can be consolidated for administrative purposes (such as discovery). That may be fine: discovery consolidation can have its efficiencies, such as avoiding redundant depositions of the same witness on different days.

But a trial at which the parties' rights are at stake is not an administrative proceeding. It's a trial. The issue is the parties' rights, not the courts' convenience. The parties must have an opportunity to litigate this issue fully before any trial begins.

A Major Difference at Stage II: The Problem With the Asbestos Mini-Trials

Another important difference involves the types of mini-trials contemplated in the two cases. Recall that even in Stage II in the tobacco cases, the defendants are free to argue the issue of general causation - to try to prove that second-hand tobacco doesn't cause, say, chronic bronchitis.

There is, however, an enormous difference between changing burdens of proof and wholesale elimination of legal issues. At the Stage II asbestos trials - even those involving plaintiffs with no manifest injuries - the juries will be told at the outset that the defendants are already, in some way, "liable." And they will never hear evidence to the contrary. They will, in effect, be told by the court - not just by the plaintiffs' lawyers - that the defendants have done something wrong.

By denying the asbestos defendants the ability to argue general causation to Stage II juries, the West Virginia proceeding will create enormous hydraulic pressure to find for the plaintiffs, because the premise of the trial will be that the defendants have already done something wrong. That is simply not the starting point for a trial protective of both parties' rights. It is exceptionally unfair to the asbestos defendants to conduct the trial that way.

The Motives Underlying the Proceedings: The Root of the Differences

At bottom, the difference between these two proceedings lies in the motives of the parties. The tobacco companies think they can win some of these cases at trial, and they have the track record to prove it. They've made concessions on issues that they think are losers, and have preserved for trial those issues where they think they can prevail. That makes a great deal of sense: making implausible, losing arguments can hurt a party's credibility in court, so sometimes it's best to just concede them.

In the asbestos cases, in contrast, no one actually believes these cases can be tried. The courts certainly don't: judges constantly express outrage that the legislatures have left the asbestos crisis to an ill-equipped judiciary. Nor do defendants: they frequently declare bankruptcy to maintain a measure of control of the dissipation of their assets that would likely follow a trial.

And the plaintiffs plainly don't. Otherwise, they would have - in a single case, in a single court, in a single jurisdiction - presented a plan for trying these cases that actually looked like a trial. They haven't. Rather, they have simply hoped that the threat of trial will force defendants to settle, or that an actual, wooly-mammoth proceeding - it's hard to call it a trial - will somehow coerce a deal.

The Florida tobacco case is a model of how mass tort litigation can proceed rationally and logically, with due process and fairness to both sides. But by that standard, the West Virginia asbestos juggernaut is a mockery.