Case Management in 2004: Practical Guide for Mass Tort Practitioners
October 27, 2004
Introduction: Little is written about case management of mass torts at the state court trial level and that route to trial. The purpose of this article is to use our case as a teaching example of effective case management tools and techniques, and suggest a practical guide for mass tort practitioners in 2005 and beyond. We recently concluded seven years of litigation, to the California Supreme Court and back, with detours to the California Public Utilities Commission (“PUC”), before the complaints were even answered and in the end, the cases settled, or are in the process of doing so, due to the perceptive case management of a judge interested in handling these complex cases and willing to tackle the difficult issues. We were successful in preventing what easily could have become serial litigation, reaffirmed and made some case law on doctrines of pre-emption and primary jurisdiction--which should be new focal point areas for toxic tort practitioners—but regrettably never made it to a Daubert hearing or trial. It has been a little over 10 years since I wrote for this publication[1]
and not much has changed in the practice of toxic torts at the state court level. At the federal level, there have been a few suggested amendments to Federal Rule of Civil Procedure 23 in light of Amchem[2], Ortiz[3] and other proposed settlement classes. I hope this article will suggest a “pathway” for companies in case management of mass torts at the state court level.
Background: So a little background about our cases to put things in perspective. We were immersed as liaison counsel in seven arduous years of litigation in a group of toxic tort cases predicated on alleged drinking water contamination. These 13 separately filed mass tort state cases involved over 1100 plaintiffs, 100 defendants and were brought by two well financed and experienced plaintiffs law firms. The defendants were multi-layered, consisting of industrial businesses, municipalities, water purveyors regulated by the PUC and water purveyors not regulated by the PUC. Given the location of the alleged groundwater contamination, our first move, which was successful, was to seek a change of venue in the lead case. We argued and won that motion, which resulted in the lead case, Santamaria, being transferred to Ventura County from Los Angeles County, site of the San Gabriel Valley where the alleged drinking water contamination occurred and home to over million potential plaintiffs. While the motion to change venue was pending, the PUC regulated water purveyors convinced the PUC to begin an investigation into the quality of the drinking water in the San Gabriel Valley. Once that investigation was opened, the PUC regulated water purveyors filed demurrers, joined in by the industrial defendants, in Santamaria and the other lead case, asserting that the trial court’s jurisdiction was pre-empted by the PUC’s investigation into the quality of the water served in the San Gabriel Basin.
The trial courts’ mixed rulings on these demurrers—we won one and the plaintiffs won one—resulted in virtually all of the parties filing appeals or writ petitions. The Court of Appeal, sided with the PUC regulated water purveyors, finding that the trial court lacked jurisdiction over them due to the pending PUC investigation, but retained jurisdiction over the other water purveyors and the industrial defendants. We filed a petition for review with the California Supreme Court, which accepts less than 1% of such petitions filed, which was accepted. The case was in the Supreme Court for at least 2 years, the entire appellate process consumed three and a half years.
The decision, based on pre-emption ground and primary jurisdiction grounds, may be found at Hartwell v. Superior Court (2002) 27 Cal. 4th 256. It is worth reading. In Hartwell, the California Supreme Court held, in pertinent part, as follows:
An award of damages on the theory that the public utilities provided unhealthy water, even if the water met DHS standards, “would plainly undermine the (Public Utility) commission’s policy by holding the utility liable for not doing what the commission has repeatedly determined that it and all similarly situated utilities were not required to do.” (citation). Thus, such damage action are barred.
On the other hand, damage claims based on the theory that the water failed to meet federal and state drinking water standards are not preempted by (Public Utilities Code) section 1759. A jury award based on a finding that a public water utility violated DHS standards would not interfere with the PUC regulatory policy requiring water utility compliance with those standards. Hartwell Supra, 27 Cal. 4th at 276.
The Strategy: While ultimately the California Supreme Court did not rule entirely in our favor on the demurrers, the delay engendered by the appellate process and concomitant stay “took the wind” out of the plaintiffs sails. Any attempt to file new lawsuits on behalf of new plaintiffs would face stiff opposition on statute of limitation grounds. Because the cases originally filed in 1997 alleged drinking water and groundwater contamination in the San Gabriel Basin from 1979, there were glaring statute of limitations issues presented on the face of the complaints themselves, at the time of filing, and well before the cases traveled to the Supreme Court. Moreover, there was enough publicity surrounding the filing of these cases in 1997 that any new case filed in 2002, after the Hartwell decision, would in all likelihood never survive a statute challenge—the effect of the Supreme Court delay on any new case filings and a decision point considered in the defendants’ initiation of the appellate process. From our perspective, the defense was engineered to “shut down” potential serial litigation in the San Gabriel Basin and in the end--although seven years later-