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Aggregation Of Claims In Mass Tort Litigation


By their nature, mass disaster (fires, aviation accidents, train derailments, and environmental spills) and product liability litigation is complex and involves large numbers of claims. Subsequent to Amchem Products, Inc v. Windsor  and Ortiz v, Fireboard Corp.,  courts have become reluctant to certify mass tort litigation as class actions under FED. R. CIV. P. 23. Judicial economy from the courts’ perspective and from the litigants’ perspective, nonetheless, calls for an efficient mechanism to resolve mass tort claims. Many courts, after mass tort cases have become consolidated and aggregated in a single forum, have employed “class action” tools for purposes of resolving these cases.

By aggregating mass tort cases, without class certification, courts have achieved settlements that resolve most, if not all, of the claims. Additionally, aggregation often saves a substantial amount of judicial time and litigation expenses by eliminating repetitive pretrial rulings and duplicative discovery. Through the appointment of Lead Counsel, the court appoints competent and experienced attorneys to work with the court and to represent Plaintiffs’ interests.   These courts often exert control over the litigation including the authority to control the amount of attorneys’ fees that plaintiffs’ counsel receives. This authority assures fairness by preventing attorneys who failed to contribute to the case from receiving payment for work they did not perform and working to protect Plaintiffs’ interests.

Historical Perspective

Non-class aggregation in mass tort cases is not a new concept arising solely from Amchem and Ortiz. For at least thirty years, courts have used aggregation to manage and control mass tort litigation. For example, in the MGM Grand Hotel Fire Litigation, the United States District Court, District of Nevada, on August 13, 1981, aggregated plaintiffs’ claims when it appointed the Plaintiffs’ Legal Committee (“PLC”) to “initiate, coordinate and conduct all pretrial liability and damage discovery on behalf of all plaintiffs who filed civil actions governed by the MDL No. 453 and known as the ‘MGM Grand Hotel Fire Litigation.’”  Ultimately, the PLC also had the responsibility to negotiate settlements on behalf of all plaintiffs with the multiple defendants.  In the MGM Grand Hotel Fire Litigation, the Honorable Judge Louis Bechtel issued several orders controlling the allocation and distribution of attorneys’ fees arising from the settlements.

After the MGM Grand Hotel Fire Litigation, the United States District Court, District of Puerto Rico followed a similar aggregation approach in litigation arising from the fire at the DuPont Plaza in San Juan. In In re Fire Disaster at DuPont Plaza Hotel,  the Honorable Judge Raymond L. Acosta, using the familiar tools for handling class action cases, established a Lead Counsel Committee and aggregated Plaintiffs’ tort claims. As part of the litigation, the Honorable Judge Acosta also issued orders controlling the division of attorneys’ fees.

Additionally, courts understood that the benefits of aggregation could be used in class actions involving mass torts. The litigation arising from the tragic fire that resulted in the death of over one hundred people at the Beverly Hills Supper Club in Kentucky is one of the first examples where a court used FED. R. CIV. P. 23 in a mass disaster. In the Beverly Hills case, United States District Court Judge Carl Rubin certified the following class:

All persons who as legal representatives of persons killed or injured and all persons who in their own right as persons injured in a fire at the Beverly Hills Supper Club on May 28, 1977 may assert claims for damages against persons responsible therefor.

Judge Rubin then structured the litigation including trials in a manner that many courts use when they currently aggregate mass tort litigation:

Upon completion of all pretrial discovery and disposition of all pretrial motions, the issue of liability as to each subclass will be tried. Upon a finding of liability against one or more of the defendants a single jury may be empaneled for the purpose of determining monetary damages to each member of each subclass. Such jury may be instructed to return verdicts expressed in percentages rather than expressed in dollars. In the alternative, such jury may be instructed to return verdicts based upon a formula that will be supplied to them.

Finally, Judge Rubin planned for individual damage determinations:

Lead counsel as previously approved by the Court will represent the class in accordance with Pretrial Order No. 1. In the presentation of individual damages to a jury or to a master counsel selected by a member of the class may be permitted to make such presentation.

Other courts recognized the value of class certification in mass tort cases.  For example, the United States District Court, Southern District of Ohio certified a class action in In re Telectronics Pacing Systems., Inc.,  involving a nationwide class of pacemaker recipients. After summary jury trial and six years of litigation, the court approved a class settlement.  The summary jury trial took into the account differences in state law; the Telectronics court noted that it believed that nationwide class action trials were feasible: “The results of the summary jury trial in this case confirmed that a trial on the merits would be manageable.”

In another mass tort case, United States District Court Judge Brimmer successfully employed class action aggregation tools in the In re Copley Pharmaceuticals, Inc.  litigation. The Copley litigation related to the contamination of the medication Albuterol. In Copley, the district court certified a nationwide class action and later approved a class action settlement after forty-three days of trial. In Copley, the Court waded through the application of an array of individual state laws and still permitted partial class certification even though compensatory damages were measured on an individual basis.

The Effect Of Amchem And Ortiz

In the late 1990’s, the United States Supreme Court rendered two decisions, Amchem and Ortiz, limiting Plaintiffs’ ability to certify a class in mass tort cases.  Amchem and Ortiz started the trend of courts’ denial of class certification status in mass tort litigation. This trend has been widely discussed in numerous law review articles and by legal academia across the country.   Moreover, several courts responded to the new class certification guidelines by continuing to use aggregation principles as a tool for resolving plaintiffs’ claims similar to those employed in MGM Grand Hotel Fire Litigation and In re Fire Disaster at DuPont Plaza Hotel, although on a more consistent basis.  Like courts in class action cases, these courts believe that they have authority to control Plaintiffs’ counsel and the litigation process in non-class mass tort aggregation cases.  Furthermore, as part of these aggregation principles, courts continue to apply “class action” tools to control many phases of the litigation, including attorneys’ fees.   These “class action” tools have proven to be so beneficial that Judge Jack B. Weinstein (E.D.N.Y.), Judge Eldon E. Fallon (E.D.N.Y.), and others call these aggregated tort cases “quasi-class actions.”

The paradigm for aggregation post-Amchem and Ortiz is United States District Court Judge Weinstein’s orders in In re Zyprexa Products Liability Litigation.  In the Zyprexa litigation, Plaintiffs alleged they suffered injuries as a result of using the prescription drug Zyprexa.  Through Multidistrict consolidation, the Zyprexa litigation was centralized before Judge Weinstein.  Judge Weinstein chose not to certify the case as a class action. Nonetheless, he ultimately approved a settlement,  and determined the amount of fees that Plaintiffs’ counsel was entitled to receive.

After Zyprexa, the United States District Court for Louisiana used principles of aggregation in the In re Vioxx Products Liability Litigation.  The Vioxx litigation, with the Honorable Eldon E. Fallon presiding, was similar to Zyprexa in that it was a mass tort case that involved claims relating to a defective prescription drug.  After overseeing pretrial matters, the parties entered into a settlement agreement requiring the court to watch over various aspects of settlement administration. In light of the $4.85 billion settlement, the court decided to use its equitable powers and inherent authority, in addition to the Settlement Agreement giving the District Court express authority to oversee the settlement, to exercise its control over individual attorneys’ fees.  Specifically, the court stated, “[w]hile an MDL [a mass tort case] is distinct from a class action, the substantial similarities between the two warrant the treatment of an MDL as a quasi-class action”  and, as such, “giv[es] the Court equitable authority to review fee contracts for reasonableness”  As used by Judge Fallon in the Vioxx litigation, the Court has the ability, through its equitable powers and inherent authority (and, if applicable, through express agreement of the parties), to watch over the litigation and inject itself where needed to ensure attorneys’ fees are reasonable while also protecting the plaintiffs’ interests.

Aggregation In Practice

Absent class certification, aggregation requires a consolidating event. The purpose of the consolidating event is for the court to obtain jurisdiction over the parties. Typically, the consolidating event is consolidation, coordination, and transfer through the Judicial Panel on Multidistrict Litigation.  Multidistrict consolidation is appropriate when the litigation involves at least one common issue:

When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.

In the event that a mass tort is local and several individual cases are filed, for example, an unfortunate disaster situation, the court can use FED. R. CIV. P. 42 and available local rules governing consolidation to aggregate the cases. Rule 42 (a) provides that: If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; 2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. Once the court has jurisdiction over the parties, it can begin issuing traditional orders that govern the selection of lead counsel, coordinated discovery, and other related matters—including bellwether trials.

Legal Authority Governing Non-Class Aggregations And Inherent Questions

Although the usage of non-class aggregate litigation as a litigation tool has increased after Amchem and Ortiz and significant authority supports the use of class action tools in non-class aggregation cases,  issues exist concerning the extent that a court can bind parties. Absent class certification, the results of trials probably lack res judicata effect on claimants who did not participate in the trials.  Additionally, absent class certification, a court cannot compel any unwilling plaintiff to accept a settlement. Thus, if significant opposition exists to the agreement, the finality sought by Defendants might be difficult, if not impossible, to achieve. Besides issues relating to the power of the courts to aggregate mass tort claims, questions have arisen concerning a perceived lack of procedural protections afforded to plaintiffs in non-class aggregate litigation.  However, as Judge Weinstein noted in a publication, there are many procedural advantages for plaintiffs and defendants through aggregation of claims – specifically, consolidated discovery, sharing of costs, and a push for finality for both the plaintiff and defendant through one forum – that makes aggregation and very useful and efficient litigation tool.  With the increased use of non-class aggregation as a result of Amchem and Ortiz, commentary on the effectiveness of current procedural safeguards for plaintiff when using “quasi-class action” will likely be a subject of law review articles and academic inquiry for years to come.

Non-Class Aggregation And Class Action Litigation Today

As noted earlier in this article, non-class aggregate litigation undoubtedly is not a new concept. However, Amchem and Ortiz have increased the publicity surrounding the functional use of aggregation tools in mass tort litigation. Non-class aggregate litigation provides a practical tool for plaintiffs with tort-based claims en masse, but it does not vitiate future use of the class action model altogether. In fact, class action principles and non-class aggregation principles continue to coexist in present-day cases. For example, in In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, & Products Liability Litigation,  both class action plaintiffs (economic loss) and wrongful death/personal injury (tort-based) plaintiffs pursue claims against Toyota within the same MDL and under the watchful eye of the same federal judge, the Honorable James V. Selna. Judge Selna has appointed separate groups of Lead Counsel for the economic loss plaintiffs and the personal injury/wrongful death plaintiffs.  Furthermore, the economic loss plaintiffs are pursuing their claims under a consolidated economic loss class action complaint while the personal injury/wrongful death plaintiffs are pursuing their claims through aggregated individual tort-based complaints.  Judge Selna realized the importance and utility of both class action litigation and non-class aggregate litigation when he appointed separate groups of lead attorneys to represent both sets of plaintiffs and coordinated discovery accordingly.


Non-class aggregation certainly is not a brand-new litigation tool developed solely as a result of Amchem and Ortiz. In reality, non-class aggregate litigation in mass tort cases is a practical litigation tool that courts around the country have used for decades. The national focus on non-class aggregation has amplified as a result of Amchem and Ortiz, but its recent continued use in the Zyprexa, Vioxx, and Toyota cases demonstrates that aggregation is a useful and efficient litigation tool that likely will continue to be used for the foreseeable future.