-3 Employment Discrimination The House of Delegates approved by voice vote the recommendation of the Section of Individual Rights and Responsibilities that would amend Title VII to extend to all protected classes a damage remedy for intentional violations similar to that available under $1981. Under the current remedial scheme, Title VII leaves many victims of employment discrimination without remedies for their proven injuries and allows many discriminatory employers to avoid any meaningful liability. I have enclosed a copy of this policy supporting legislative attempts to restore Title VII and $1981 to their generally recognized status prior to several recent Supreme Court decisions. Thank you for this opportunity to supplement my earlier testimony. Enclosures Sincerely, Manghars L. Stanley Chauvin, Jr. 3211A AMERICAN BAR ASSOCIATION COMMISSION ON MASS TORTS REPORT TO THE HOUSE OF DELEGATES > RECOMMENDATIONS BE IT RESOLVED that the American Bar Association, recognizing that separate adjudication of individual tort claims arising from a single accident or use of or exposure to the same product or substance is inefficient and wasteful, seriously burdens both state and federal judicial systems, poses unacceptably high risks of inconsistent results, and contributes to public dissatisfaction with the tort law system and the legal profession, adopts the following recommendations of the Commission on Mass Torts: RECOMMENDATION 1. Congress should enact legislation: (a). providing for establishment of a federal judicial panel empowered to determine that tort actions constitute "mass tort litigation" whenever at least 100 civil tort actions arising from a single accident or use of or exposure to the same product or substance, each of which involves a claim in excess of $50,000 for wrongful death, personal injury or physical damage to or destruction of tangible property, have been instituted in different federal or state courts; and -i (b). authorizing the panel to direct that some or RECOMMENDATION 2. Congress should enact, pursuant to its power to regulate interstate commerce, legislation to permit individual actions arising in litigation declared to be "mass tort litigation" by a federal judicial panel to be filed in or removed to a federal court without regard to the citizenship of the parties. RECOMMENDATION 3. When state law provides the rule of decision, such legislation should mandate a federal court presiding over consolidated mass tort litigation to select applicable state(s) law (s) by choice of law standards developed by the federal courts in light of reason and experience. RECOMMENDATION 4. Congress should enact legislation providing that whenever punitive damage claims are asserted in "mass tort litigation": (a). all such clairs against the same defendant arising from the same or substantially similar conduct should be consolidated before one court; (b). only a single punitive damages damages judgment should be entered against the defendant upon a determination of such liability and the amount of such damages; and (c). in the event such a judgment is entered, the court may apportion equitably that award among those plaintiffs entitled to share in it and may allocate a portion of that award to a public purpose. RECOMMENDATION 5. When punitive damage claims arising in mass tort litigation are consolidated before a single court, standards and procedures adequate to protect the interests of all parties should be enployed. Such standards and procedures should include at least the following: (a). The standard of conduct. Punitive damages should be allowed only in cases where the defendant's 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 14 15 16 17 18 19 20 21 22 23 24 25 4567∞ao 1 2 3 456 2222 ~ ~ ~ ~ ~ ~ ~ m m 3 m m m 33 56 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 conduct indicates substantially greater indifference to the safety of others than ordinary negligence, such as wilful and wanton misconduct or the conscious disregard of the rights or safety of others. (b). The standard of proof. The standard of proof in awarding punitive damages should be higher than in awarding compensatory damages. The standard should be proof by "clear and convincing evidence." (c). Separate trial on punitive damage claims. The court may and at the request of a defendant shall direct the trier of fact to consider in a separate proceeding (1) whether punitive damages are to be awarded and the amount of such an award or (2) the amount of punitive damages which should be awarded following a determination of punitive liability. (d). Amount of punitive award. While the total amount of the punitive damages award should be adequate to accomplish the purposes of punitive damages, the court should afford suitable protection against an award that is excessive. RECOMMENDATION 6. Whenever punitive damage claims in mass tort litigation are consolidated for adjudication, (a). the judgment, whether favorable to plaintiffs or the defendant, shall bar other punitive damage claims against the same defendant for the same or substantially similar conduct except for punitive damage claims arising solely from conduct alleged to have occurred after entry of the judgment or such other date as may be specified in the judgment; and (b). an order or judgment compromising or dismissing some or all such damage claims on consent of the parties shall not bar assertion of other punitive damage claims against the same defendant for the same or substantially similar conduct unless the court after hearing and upon appropriate findings shall expressly so provide. RECOMMENDATION 7. In cases where the court finds that there are issues of fact requiring resolution by expert testimony, and involving application of scientific, technical, medical or otherwise complex principles, legislation should be enacted authorizing the court, on its own motion, or on the motion of any party, to convene a panel of two or more impartial 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 experts in the area of factual dispute. Such (a). After affording the parties an opportunity to be heard, the court shall advise the expert panel in writing of the issues to be addressed by it. The panel shall make findings on the aforesaid issues which shall be disclosed to the trier of fact at any trial. (b). After the panel has submitted its findings and prior to the trial, members of the panel may be deposed by any party in the presence of or under the supervision of the court. (c). Subject to the provisions of the Federal Rules of Evidence relating to admissibility, any portion of such depositions may be introduced into evidence by any party, and members of the panel may be called by the trial judge or any party to testify at trial. RECOMMENDATION 8. (a). A court should be empowered to require parties to consolidated mass tort litigation to engage in alternative dispute resolution procedures on any individual issue providing, however, that the right to trial by jury shall not thereby be denied or impaired. (b). With the consent of all parties, the court may employ alternative dispute resolution procedures on common issues raised in the litigation. RECOMMENDATION 9. If otherwise permitted by law, a court presiding over consolidated mass tort litigation should consider and, upon appropriate findings made after due notice and suitable proceedings, approve and administer a settlement proposal which bars the additional claims of those who have not sued or who may not yet be able to sue. RECOMMENDATION 10. The bench and ar should develop guidelines for determination of reasonable fees and expenses for all attorneys in mass tort litigation. Such standards should specifically address the reasonableness of fixed percentage contingent fees in situations where multiple clients are represented, |