Mass tort cases: a legal nightmare Experts say court system not designed to handle volume of injury claims

October 07, 1990|By Graeme Browning

As unfortunate as mass disasters are, they are becoming Baltimore lawyer Read McCaffrey's primary business.

After an Amtrak passenger train collided with a string of Conrail locomotives in January 1987, Mr. McCaffrey, a partner in the firm of Whiteford, Taylor & Preston, negotiated a $66 million settlement for the families of 15 people killed in the crash.

When Pan Am Flight 103 exploded over Lockerbie, Scotland, nearly a year later, victims' families also called Mr. McCaffrey. He now leads a group of lawyers representing the families of 13 crew members who were killed and has been quoted as saying he hopes to win "millions of dollars" in punitive and compensatory damages for each family.

Tuesday, a Scottish lawyer retained him to represent claims by Lockerbie residents who were injured or traumatized by the dreadful human toll from the explosion. Some 320 similar claims were settled this year for $28 million.

In less than three years Mr. McCaffrey has become a specialist in what the legal profession calls "mass tort litigation," or the filing of multiple lawsuits for injuries resulting from one event or cause. Peter G. Angelos, another Baltimore lawyer who represents an estimated 11,000 asbestosis claims nationwide, also has a high profile in this arena.

Mass tort litigation isn't a new specialty. It developed in the 1960s in the wake of increasing commercial airplane crashes.

But now, 30 years later, lawyers have grown so sophisticated in the use of its tools, and, in some cases, its impact on industry and the U.S. court system has become so devastating, that legal experts and legislators say reform is desperately needed.

Take the asbestos cases, for example.

Nobody knows exactly how many claims are pending in the courts for asbestos-related diseases. There are reports that the federal courts face 30,000 cases and the state courts 60,000 cases, but Kenneth R. Feinberg, a Washington lawyer who has helped resolve the massive actions stemming from Agent Orange defoliant use in Vietnam and the Dalkon Shield contraceptive device, says there are as many as 175,000 asbestos cases nationwide.

In Baltimore alone, there are more than 5,500 asbestos cases on the city Circuit Court docket. The court, trying each asbestos case individually, has been able to resolve only 200 to 300 cases a year.

Last month, Circuit Judge Marshall A. Levin ruled that more than 9,000 asbestos-related cases now pending throughout the state will be tried together in Baltimore in a "mega-trial" scheduled for April 29. Observers say it will be the largest mass trial ever held in the United States.

Legal scholars say the U.S. legal system wasn't set up to handle numbers like that. "The Founding Fathers never in their wildest dreams envisioned thousands and thousands of claimants coming into court," said Mr. Feinberg, who has also advised Judge Levin.

Such litigation is also proving costly to everyone involved in it.

Manville Corp., for decades the largest producer of asbestos, filed for bankruptcy reorganization in 1982 because of the asbestos claims against the company. A. H. Robins Co., the Richmond, Va.-based maker of the Dalkon Shield, did the same.

The average asbestos case includes a claim for $60,000 to $80,000 and can run as high as $1 million or more for asbestos-related cancer, lawyers say. But only half of asbestos claimants usually win their cases, and attorney's fees eat up from 30 percent to 50 percent of their winnings. Some very ill claimants have even died before their cases got to trial, lawyers add.

Corporations that find themselves on the opposite side of mass tort litigation have some painful choices too. Some companies that manufactured products containing asbestos, for example, followed safety standards strictly. Others can prove they never used asbestos in their products at all.

"Some companies decide to settle asbestos cases in which they may not have any liability simply because, to them, spending the money to go through a trial is not an acceptable business judgment," said a Baltimore lawyer, who has defended an asbestos manufacturer.

Handling some of the largest mass tort cases has become such a nightmare for the courts that federal judges have resorted to various creative solutions over the years.

In 1984, U.S. District Judge Jack B. Weinstein of New York ordered a mass settlement of 250,000 Agent Orange claims for $180 million. As part of its bankruptcy reorganization, Manville was ordered in 1988 to set up a $2.5 billion trust to compensate asbestos victims. A year later Robins was ordered to set up a similar $2.3 billion fund.

Two months ago, three federal judges tried to craft a similar solution to the asbestos cases by consolidating them and disposing of them in a three-pronged fashion.

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