Here is an unexpected but interesting non-asbestos example of conflict of interest issues arising from efforts to resolve “mass torts” for various persons around the world. The example arises from the airplane crash and airplane hijacking blamed on Libyan terrorists. The article describes a recently filed lawsuit in which two victims of the crash object to the terms of the settlement with Libya. In brief, the two plaintiffs argue that the lawyers who represented the crash victims, Crowell & Moring, operated under conflicts of interest and that the agreement improperly commingles the interests of the various different categories of claimants, including US and non US claimants. The article includes a link to the complaint itself. The complaint, however, does not attach a copy of a “joint prosecution” agreement apparently signed by the plaintiffs and many others.

Here are excerpts from the article by Roger Alford:

“The facts as alleged in the complaint of Davé v. Crowell & Moring are complex. In brief, Libya has been implicated in terrorist activities on numerous occasions, most notably the hijacking of Pan Am Flight 73 in Karachi, Pakistan on September 5, 1986 and the bombing of Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988. In 2005, victims of these terrorist attacks and their heirs–including American and non-American victims–retained the law firm of Crowell & Moring–known for representing victims of terrorism–to pursue litigation against Libya. The Davés were among those who signed the Crowell & Moring retainer agreement. As part of retaining Crowell & Moring, every client was also required to sign a joint prosecution agreement (“JPA“), a provision of which provided that the proceeds recovered by any signatory to the JPA shall be shared on a sliding scale based on type of injury with all signatories to the JPA, without distinction as to nationality. Only 23% of the victims who signed the JPA were American. A Liaison Group consisting of one American and four non-Americans was established as agents for the victims in their dealings with litigation counsel. The Liaison Group was represented by Latham & Watkins. In 2008, the United States government entered into a bilateral treaty with Libya for an award of compensation for all U.S. nationals harmed by Libyan terrorism, including the victims of the Pam Am Flight 73 hijacking, which included plaintiffs Gargi and Giatri Davé. The treaty provided for distribution of these funds through the Treasury Department’s Foreign Claims Settlement Commission (“FCSC“). After the Davés successfully received notice of their entitlement to millions under the FCSC process, Crowell & Moring issued a demand letter to the Davés contending that under the retainer agreement and the JPA the funds secured by the United States government pursuant to the U.S.-Libya treaty on behalf of American victims are to be shared among all of the victims of Libyan terrorism, American and non-American alike. In other words, the vast majority of the funds secured by American nationals under the U.S.-Libya treaty are–approximately 90% according to Crowell & Moring–required to be paid to non-Americans pursuant to these private agreements.”

Here is a late September post presenting a condensed version of a law review article proposing “national juries” for mass tort litigation. The proposal is from Professor Laura Gaston Dooley, a professor at the Valparaiso University Law School. Looking quickly through her CV at the school website, it appears Prof. Dooley clerked for two years for federal judges and then joined academia. Her work also includes being a part of the “Members Consultative Group, Project on Aggregate Litigation. American Law Institute,” which is a group identified here.

Set out below are some excerpts from the condensed version. The proposal makes some interesting points. I’ve not read the full law review article. The condensed version does not hone in on two topics that seem key to me: state-by state variations in the applicable legal rules, and the manner in which a jury would cope with the applicable and evolving science in a mass tort “toxic tort” case.

See below for the excerpts that most caught my eye.
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“The reexamination problem reflects tension between competing values in complex litigation: Consolidated cases may lead to unconstitutional reexamination of overlapping issues, yet trying individual cases presents problems of efficiency loss and forum manipulation. We must therefore choose between the evil of bifurcation and the evil of inefficient relitigation of the same issue, with the concomitant risk of inconsistent results. A third option–treating a single litigation as a national unit–vests too much power in one local jury to unleash national consequences.

Is there a fourth option? Empanelling a national jury would mitigate reexamination problems while preserving the efficiency gains of aggregation. A national jury would also address the concern that a local citizenry should not decide issues of national importance. And, most importantly, it would vindicate the animating concern of the Seventh Amendment: citizen participation in civil dispute resolution.

Our willingness to work out the logistical details of the national jury proposal and to absorb its inevitable costs is a function of our commitment to citizen participation in large-scale litigation. One difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States. Even in much smaller jury districts, underrepresentation of minorities on jury venires has sparked an enormous amount of scholarly literature and litigation.8 Congress would have to consider how to assemble a nationally representative venire. A starting point might be to draw candidates for the national jury pool from congressional districts, since those boundaries have already withstood constitutional and statutory scrutiny under election laws.9 The census process could also be used to draw districts.

The expansion of jury pools from local to national may also require us to rethink the size of the venire and the petit jury, as well as verdict format and voting mechanisms. Obtaining some semblance of the required representativeness will no doubt require larger juries than the current six or twelve members. Indeed, in order for a national jury to function, the discussion may well have to shift to how large a group can effectively deliberate without becoming unwieldy.

The grand jury model may prove useful. One can imagine a national jury as a cross between the grand jury and the special jury: Jurors could serve for specified lengths of time, perhaps in particular courts hosting multi-district complex litigation. The learning curve for such jurors would be high. Having decided, say, causation issues in one products liability case, the national jury would have an informational advantage in understanding procedure and applicable substantive law for other cases. And this gain can be realized without sacrificing the democratic makeup of the jury–a quality lost in elitist special juries.

The civil jury, though steeped in history, is not frozen in time. In an era of increasingly complex litigation, the civil jury must adapt structurally to modern disputes while preserving its rich history and constitutional function. Empanelling national juries in cases of national scope may well be the only way to preserve meaningful citizen participation in large-scale litigation.”

‘Mass accident” cases produce tough issues on applicable law and teh forum for litigation. The 11th Circuit recently issued a per curiam ruling affirming a district court order invoking forum non conveniens principles to cause 69 of 70 air crash lawsuits to be tried in Italy instead of the United States with respect to a plane crash in Milan, Italy. The district court order directed Cessna to submit to jurisdiction in Italy. The case is King v. Cessna Aircraft Co., No. 08-11033. The opinion is here.