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