catastrophes covered by H.R. 3406, but also includes products liability claims arising from allegedly defective or negligently designed products, and toxic tort cases involving claims that the use of or exposure to a product produced illness or death. Until the ABA mass tort legislative package is approved and implemented, H.R. 3406 is a good first step toward protection of our judicial systems. H.R. 3406 should be supported and enacted. I only hope it will not take as long as it has taken for the introduction of H.R. 3406 for Congress to take the remaining steps necessary to solve the agonizing problems arising from the mass tort explosion. -4 R10999 Mr. KASTENMEIER. Ms. Wrubel, we thank you for being here this morning, and you may proceed as you wish. STATEMENT OF BARBARA WRUBEL, ESQ., SKADDEN, ARPS, SLATE, MEAGHER & FLOM, NEW YORK, NY, ON BEHALF OF THE AMERICAN BAR ASSOCIATION COMMISSION ON MASS TORTS Ms. WRUBEL. Thank you, Mr. Chairman. I am here to address this committee principally as a private attorney. I am also, as indicated in my statement, a member of the Mass Torts Commission, but I don't necessarily speak on behalf of the commission. I believe that you do have Mr. Hanley's statement. I would like to depart in some respects from my written statement, to which I will return in a few moments, because I would like to address some of the issues that have arisen as a result of some comments that have been submitted to the committee and some comments I have heard here today from Judge Schwarzer and Mr. Bransdorfer. I think we have a very troublesome problem with the single choice of law rule, selecting the law of a single jurisdiction to govern all the litigants. I think that, in fact, the problem rises to constitutional dimensions, that there are certain limitations that have been articulated by the Supreme Court on the choice of substantive law. Under the full faith and credit clause as well as the due process clause, there are some problems with selecting a law that as to certain litigants might be deemed arbitrary or capricious-for example, it is conceivable in a single event mass tort that you will have litigants, plaintiffs in the case that have no relationship to the situs of the accident-where the plane goes down, perhaps where the plane was manufactured, where the airline is located-and under the rules here, if the court, the transferee court, were required to select a single law, it might select the law of the place where the plane went down, but that is only a fortuity that the plaintiff has died in Iowa, let's say, where the plane may have gone down, and there is some authority in Supreme Court decisions that would say you just can't pick out a law that has no relationship to a plaintiff and apply that law to that plaintiff's claim. It seems to me that the transferee court would-the bill would be well served by permitting the transferee court to adopt perhaps more than one law, the law of more than one jurisdiction. I think that Judge Schwarzer recommends this in his proposal-rather his comments on the bill-and I think it would address a lot of problems that folks have with the provision in the bill that requires that a single choice of law govern all issues. Beyond that, I think that the bill-I would agree with the Judge Schwarzer that the bill is an excellent experiment in aggregating mass tort claims. It is a modest initiative, which as I read the bill, addresses only single event mass tort cases, although I do agree that probably some modification of the language on page 2 would be helpful to make clear the kinds of mass torts that I understand you do not want to reach in this bill: For example, asbestos litiga tion, pharmaceutical litigation, toxic substance litigation arising out of hazardous waste, et cetera. If, as I believe is the case, you do want to confine the bill to single event mass torts, such as a plane crash or hotel fire, then I think the addition of some language is necessary to make it clear that we are talking only about situations in which a number of folks are injured at the same time in a single calamity. Beyond the foregoing issues, as you will note in my prepared statement, I generally agree that the bill's presumption in favor of remanding actions to home courts for a determination of damages is a very sound proposal, I think it makes good sense to permit folks to return home to have their neighbors determine the amount of their damages. That seems a fair accommodation. Where that becomes, it seems to me, a significant problem is if that presumption in favor of remand for damages is extended to a remand for a determination of punitive damages. As I note in my written statement, unlike compensatory damages, punitive damages are not something that are owing to an injured plaintiff as a matter of right. Indeed, most courts agree, and in fact the rule is virtually unanimous with some very minor exceptions, that punitive damages are indeed a windfall to the individual plaintiffs, that no plaintiff is entitled to punitive damages. Rather, on the civil side of the law, we permit a litigant to seek punitive damages to vindicate society's interest that egregious wrongdoing not go unpunished or undeterred. Consequently, to the extent that punitive damages are designed to vindicate a societal interest, and we are attempting under this bill to bring all of the actions in one place, why don't we determine the amount of the punitive damages in the very forum where we determine the liability for the punitive damages? In addition, there may be some problems and there are some cases out there that suggest there would be problems if we determined liability for punitive damages in as centralized, aggregated proceeding, and then sent each case home to other forums for a determination of the amount of those punitive damages. One wonders what would happen in the remanded case. How would you take the case to the jury? Would you just tell the jury that the defendant has been found not only negligent, but also so egregiously culpable as to warrant punitive damages? That jury would then have to determine an amount of punitive damages in a vacuum, that is, without having before it evidence of the conduct of the defendant. Indeed, I suppose that in most courts, to assure no constitutional infirmity in a remanded action on punitive damages, the court would have to allow the defendant to put on a case telling the jury, I wasn't such a bad actor and you ought to consider my actions very closely because you can't award punitive damages without considering or comparing my conduct to the amount of money you are trying to assess against me. I think that the punitive damage problem goes beyond that. If, in fact, the presumption in favor of remand also applies to punitive damages, it would lead necessarily to multiple punitive damage awards, the continuous and repeated punishment of the defendant for conduct that in a single event mass tort disaster was the same as to all of the persons that were injured. I don't think it bespeaks well of a system to continually and repeatedly punish the defendant for the same wrongful conduct. There is a great deal of sentiment for that in some recent decisions around the country, where the problem of multiple punitive damages has been identified. Moreover, where the lure of repeated punitive damage awards hangs out there, it tends to inhibit settlement and, indeed, often leads to wasteful litigation. With those remarks on choice of law and punitive damages, I would rest on my prepared statement and would be happy to answer any questions you might have. Mr. KASTENMEIER. Thank you, Ms. Wrubel. [The prepared statement of Ms. Wrubel follows:] PREPARED STATEMENT OF BARBARA WRUBEL REGARDING I am a partner in the law firm of Skadden, Arps, Slate, Meagher & Flom in New York, where I specialize in the area of products liability and mass torts litigation. I am also a member of the American Bar Association's Commission on Mass Torts and an adjunct professor of law at New York University and Fordham University law schools. I am testifying today in favor of passage of H.R. 3406, the Multiparty, Multiforum Jurisdiction Act of 1989, which I believe will constructively address some of the more intractable problems associated with the current system of litigating single event, mass tort disasters. At present, a single mass accident, such as an aircrash or a hotel fire or collapse, can generate numerous lawsuits in federal and state courts throughout the country. Yet, the existing limits on federal and state court jurisdiction and joinder make it difficult or impossible to consolidate such related actions for dispositive resolution. The result is duplicative litigation, which wastes the time of the courts, parties and witnesses, creates unacceptably high risks of inconsistent results, and contributes to public dissatisfaction with the tort law system and the legal profession. H.R. 3406 seeks to remedy this situation by providing procedures for consolidating in the federal courts multi-party, multi-forum litigation arising out of a single event or occurrence. The potential benefits of the bill are many. For example, the bill facilitates the transfer of mass disaster cases from state to federal court by permitting removal on a minimal diversity basis -- i.e., where any plaintiff and any defendant are citizens of different states. The bill also carves out a special exception to the general requirement that all defendants must consent to removal; it allows any defendant to obtain removal of a mass disaster case, even though other defendants may object. |