Amicus Curiae Brief — Amchem Products, Inc. v. Windsor

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Supreme Court, U.S. ;

FILE D |

JAN 15 | 1997

Nos. 96-270 eda

Supreme Court of the United States

OCTOBER TERM, 1996

AMCHEM PRODUCTS, INC., ET AL.,

Petitioners,

Vv.

GEORGE WINDSOR, ET AL.,

Respondents.

On Writ Of Certiorari To The

United State ( ourt of Appeals

for the Third Circuit

AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE PETITIONERS

HOWARD F. TWIGGS, EsQ. JEFFREY ROBERT WHITE, Eso .*

1050 31st St., N.W. 1050 3 ist. St., N.W.

Washington, DC 20007 Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, The Association Attorney for Amicus Curiae

of Trial Lawyers of America *Counsel of Record

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BEST AVAILABIE COPY

TABLE OF CONTENTS

TABLES OP ALTER TIS ...00:ccccccscscsesceccsesssecsceseees

I. CONSIDERATION OF SETTLEMENT IN

CERTIFYING A CLASS ACTION INVOLVING

THE MONETARY CLAIMS OF FUTURE

ASBESTOS VICTIMS RATIFIES THE TRADING

AWAY OF FUTURE CLAIMANTS’ RIGHT TO

a dienhiasdaiuiadetibcchieddicticdetemantadiaceesuehe

Il THE RIGHT TO TRIAL BY JURY IS

FUNDAMENTAL AND ANY INFRINGEMENT

MUST BE STRICTLY SCRUTINIZED .....................

A. Any Curtailment Of The Right To Civil Trial By

Jury, Explicitly Guaranteed By The Constitution,

Must Be Strictly Scrutinized And Justified By A

Compelling State Interest. .....................:.scccccsssceceseeee.

B. The Seventh Amendment Was Designed To Limit

Judicial Power and Enhance Self Government

Through the Participation of Ordinary Citizens in Jury

EE Tage eee a Ree a ee -

Il. THE PROPOSED SETTLEMENT VIOLATES

THE RIGHT OF FUTURE CLAIMANTS UNDER

THE SEVENTH AMENDMENT RIGHT TO TRIAL

BY JURY. 13

istadeee 4

Siinasiec 6

ii

A. Seventh Amendment Precludes Shifting of

Common Law Claims To A Non-Jury Tribunal..................... 14

B. Notice and Opt-Out At the Time of Certification of

the Class Do Not Afford Future Claimants the

Opportunity For Knowing And Intelligent Waiver Of

TRO FES FO DUE BOF TED, ..cesessesscscccventpsbiaiiimaniiaiianieaiina 15

1. Waiver of the Right to Trial by Jury Must Be

OWNER GIG TIRETINE, ..0scsesccevsacsucsssscheessieieneianieiamienii 15

2. Notice to Class Members Does Not Result in

Knowing and Intelligent Waiver. .....................cccccccceeseeeeeeees 16

Ill. DEPRIVING FUTURE VICTIMS OF A

MEANINGFUL OPPORTUNITY TO CHOOSE A

JURY TRIAL SERVES NO COMPELLING STATE

INTEREST. 19

A. The Seventh Amendment May Not Be Sacrificed

In Pursuit Of Administrative Efficiency. ...................006:cc00 19

B. The Constitutional Rights Of Future Victims Can

Be Preserved By Permitting Opt Out At The Time

When Injury Becomes Manifest. .....................ccccccceeeeeeeeeseees 21

COFFIN o0cc02s:ssc0c00sesesesnssonssensnsiinsialesainannnnnnannnnnnn 23

i

TABLE OF AUTHORITIES

Cases

Adams v. United States, 317 U.S. 269 (1942)..........00000.0.0.... 15

Beacon Theatres, Inc. v. Westover,

EEE 7

Borel v. Fibreboard Corp., 493 F.2d 1076

EEE EE ELL OD 20

Bowling v. Pfizer, Inc., \43 F.R.D. 141

i cesneinnse se .22

Broemer v. Abortion Services of Phoenix,

a 16

Brown v. Ticor Title Ins. Co.,

ee 17

Chauffeurs, Teamsters and Helpers,

Local No. 391 v. Terry, 494 U.S. 558 (1990) 0000.0... 7

Curtis v. Loether, 415 U.S. 189 (1974) 0000000... §, 14, 20

D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972)......... 15

Dimmick v. Schiedt, 293 U.S. 474 (1935) .....0...ccccccocoeeee 7

Dincher v. Marlin Firearms Co.,

cnc arernrenenssnnenensesenncce 18

Edmonson v. Leesville Concrete Co.,

Ee Fe 13

Erie Telecommunications, Inc. v. City of Erie,

853 F.2d 1084 (3d Cir. 1988)... 16

Fuentes v. Shevin, 407 U.S. 67 (1972) .............0.066600000000000 15

Galloway v. United States, 391 U.S. 372 (1943) 00000000... 13

Georgine v. Amchem Products, Inc.,

IGE, BOD cxcccccoccccccssccccsecccsseessees 4,5, 18

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33

EE 14, 15, 20

Huckle v. Money, 2 Wils. 205,

RI PEGI. BIMID ccccccncccccccsscccecscccccsseseesessees: 8

Hulsey v. West, 966 F.2d 579 (10th Cir. 1992) 0.000000 00.0... 16

In re Joint E. & S. Dists. Asbestos Litigation,

129 B.R. 710 (E. & S.D.N_Y. 1991) ..00000. 21

Jacob v. New York, 315 U.S. 752 (1943)... —

iv

Johnson v. Zerbst, 304 U.S. 458 (1938)... 15

K.M-C. Co, Ine. v. Irving Trust Co,

ropes bol ol: 2.) 16

Leasing Serv. Corp. v. Crane, 804 F.2d 828

CBB Cie. WIDE) .ncecceccccercnrcnveesssccseccosvsnessssencssosesovescseneenee 16

Lyon v. Mutual Benefit Assoc., 305 U.S. 484 (1939)............ 13

Metro-North Commuter Railroad Co. v. Buckley,

No. 96-320, cert. granted Nov. 1, 1996.0... 17

Moore v. Fragatos, 321 N.W.2d 781

(Mich. App. 1982)............csseccsesssssecersereresessnsneesesesnnees 16

Mullane v. Central Hanover Bank & Trust Co.,

SED OAG, SE GI caceecececscccecesscecscevessessstvsvssvcsvccossesese 17

Parklane Hosiery Co. v. Shore,

Fo 7, 11, 13, 20

Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830)... 10

Penson v. Terminal Transport Co.,

GDS BO GED COG. BODE. .necvcececsecececcsveseseccccccoscccrvese: 16

Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) «00.0... 17

San Antonio Indep. School Dist. v. Rodriguez,

GUT UG. 8 CIDTED ...ccccovcsecessereccssecceccsscccscovcsesseseescnsseosses 6

Shapiro v. Thompson, 394 U.S. 618 (1969)... 6

Urie v. Thompson, 337 U.S. 163 (1949)........cccccccceeeeeneneenens 19

Wilkes v. Wood,

Lofft 1, 98 Eng. Rep. 489 (K.B. 1763) .00...00....0000c000 8

Constitutions, Statutes, and Rules

U. &. Cormat.. ammneend Wi. ....cerccccescesssrcrescccsesesscssessscossnessees passim

. 8a: 4. |) ee 5, -

Bed. BR. Civ. Pre. SOUa)........000.0cccessccercscessesscsesssessorsenssensesoneees

Other Authorities

Amar, Akhil Reed, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131 (1991)........ccc0000--000-0000-000 12

—

Vv

Amar, Vidram David, Jury Service as Political

Participation Akin to Voting, 80 Cornell L. Rev. 203

(1995)

Amold, Morris S., A Historical Inquiry Into the Right

to Trial By Jury in Complex Civil Litigation, 128 U.

| 8 5 SETI 3 oy TEE 10

Campbell James S. and Nicholas Le Poidevin,

Complex Cases and Jury Trials: A Reply to Professor

Amold, 128 Univ. of Pa. L. Rev. 965 (1980)... 9

Coffee, John C., Jr., Class Wars: The Dilemma of the

Mass Tort class Action, 95 Coluva. L. Rev. 1343

a 22

Cramton, Roger C., Individualized Justice, Mass

Torts, and “Settlement Class Actions,” 80 Cornell L.

Re ene TL AN Uttar ae ne Da ..22

DEBATES IN THE SEVERAL STATE CONVENTIONS ON

TH® ADOPTION OF THE FEDERAL CONSTITUTION (J.

UI SUE cisbhenscilecieciiainetiin dai ies aa panes 10

Frumer, Louis R., and Melvin I. Friedman, PRODUCTS

ENE en ne ee ee 19

Guinther, John, THE JURY IN AMERICA (1988)... 8

Henderson, Edith Guild, The Background of the

Seventh Amendment, 80 Harv. L. Rev. 289 (1966)

vi

Hensler, Deborah R., Asbestos Litigation In the

United States: A Brief Overview (RAND Institute For

ee 19

Landsman, Stephan, Zhe Civil Jury In America:

Scenes From an Unappreciated History, 44 Hastings

Ra, SI crterttccnicdeiseninnsietinemenanniinsiisinsicdncainiiiiitiiiie 7, 8,9, 11

Motley, Ronald L., Susan Nial, A Critical Analysis of

Declared War on Asbestos Victims’ Rights?, 13

Came E,, Time, GG GD cece cccezsescseensesnessesessrensssvesesssoses 19

Nelson, William E., AMERICANIZATION OF THE

COMMON LAW: THE IMPACT OF LEGAL CHANGE ON

MASSACHUSETTS SOCIETY, 1760-1830 (1975)...................... ll

Newberg, Herbert B., CLASS ACTIONS (1992)................ 17, 18

PENNSYLVANIA AND THE FEDERAL CONSTITUTION

1778-1788 (John B. McMaster & Frederick D. Stone

CR, BE cecrecccsesccstnscenstcemnessnssntscnstncestacctestecstinatoantcscses 8

Pound, Roscoe, THE DEVELOPMENT OF

CONSTITUTIONAL GUARANTEES OF LIBERTY (1957)................ 9

Rose, Zhe Ancient Constitution vs. The Federalist

Empire: Anti-Federalism From the Attack on

"Monarchism" to Modern Localism, 84 N.W. U. L.

En 12

Scheiner, Alan Howard, Judicial Assessment of

Punitive Damages, the Seventh Amendment and the

Politics of Jury Power, 91 Colum. L. Rev. 142 (1991)......... 1]

a

wid

Schuck, Peter H. Mass Torts: An Institutional

Evolutionist Perspective, 80 Cornell L. Rev. 941

(1995)

Scott, Austin, 7rial by Jury and the Reform of Civil

Procedure, 31 Harv. L. Rev. 669 (1918)... 8

Storing, Herbert, WHAT THE ANTI-FEDERALISTS WERE

FoR (1981)

Story, Joseph, COMMENTARIES ON THE CONSTITUTION

1987)

Ubbelohde, Carl, THE VICE-ADMIRALTY COURTS AND

THE AMERICAN REVOLUTION (1960)

Warner, G. Ray, Rotten To the “Core”: An Essay on

Juries, Jurisdiction and Granfinanciera, 59 U.M_K.C.

SR iii 15

Wolfman, Brian and Alan B. Morrison, Representing

The Unrepresented In Class Actions Seeking

Monetary Relief, 71 N.Y.U. L. Rev. 439 (1996) 18, 22

Wolfram, Charles W., The Constitutional History of

the Seventh Amendment, 57 Minn. L. Rev. 639 (1973)

IN THE

Supreme Court of the United States

October Term, 1996

No. 96-270

AMCHEM PRODUCTS, INC., ET AL.,

Petitioners,

Vv.

GEORGE WINDSOR, ET AL.,

Respondents.

On Writ Of Certiorari To The

United State Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF RESPONDENTS

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America [“ATLA”]

is a voluntary national bar association whose approximately

60,000 members primarily represent plaintiffs in civil actions.

Victims of asbestos-related disease are frequently represented

by ATLA members in their civil suits.

Letters of consent of the parties to the filing of this brief

have been filed with the Court.

ATLA does not appear before this Court as an opponent

-- Of a proponent -- of class actions in mass torts. Rather,

ATLA’s concern in this case is defined by its longstanding

2

mission, stated in its bylaws: “To preserve the renee 0

right to trial by jury.” ATLA declared its position regarding

ya actions in a formal resolution adopted by its Board of

Governors on Oct. 5, 1996:

actions can be important procedural vehicles

vtliaed by consumers and others to halt and deter

wrongful conduct. However, class actions have the

potential to affect individual rights, and potentially may

interfere with an individual plaintiff's exercise of the nght

to legal counsel and the right to trial by jury. . . .

believes . . . that waiver of the right to a jury

Te dunia ts innate onl ened ae of Oo

plaintiff [and] that plaintiffs are entitled to counsel of

their choice whose loyalty is undivided by any conflict of

interest. Accordingly, ATLA opposes the implementation

of class action procedures unless each claimant 1s

afforded the fullest opportunity to exercise a knowing and

intelligent waiver of jury tnal and a meaningful

opportunity to opt out of the binding effect of such

proceedings. |

In ATLA’s view, the question presented in this case

raises the issue of judicial protection of the constitutional

right to trial by jury. The standard advocated by Petitioner for

certifying a class action for purposes of settlement would

effectively permit the parties to trade away the jury trial nights

of those who will develop asbestos disease in the future. By

taking into account the terms of the settlement in applying

Fed. R. Civ. Pro. 23, courts allow the wea ry a.

m judicial scrutiny, including the nights o future vi

Sean this standard would render the Seventh

Amendment rights of future victims “invisible.

ATLA addresses this Court to defend the right to trial by

jury against such an erosion. ATLA further suggests that the

constitutional rights of future victims can be preserved

without destroying the effectiveness of the class action as a

means of resolving disputes in a just and efficient manner.

3

SUMMARY OF THE ARGUMENT

The question presented in this case raises serious issues

regarding judicial protection of the right to trial by jury. The

class in this case includes not only those who have current

claims for asbestos-related harms, but also those who will

develop asbestos disease in the future. The standard

advocated by Petitioners would require judges considering the

certification of class actions to take into account the fact that

some issues have been settled. It would allow current

claimants to trade away the jury trial rights of future victims

in a manner that is largely invisible to judicial scrutiny.

The history of the Seventh Amendment illustrates the

importance of the right to trial by jury to both the civil justice

system and democratic self-government. This Court has long

required close judicial scrutiny of any infringement of that

right.

The infringement is accomplished in this case by shifting

the legal claims of asbestos victims, to which the Seventh

Amendment applies, to an administrative compensation

scheme. This is a type of denial of jury trial rights that the

Seventh Amendment was specifically designed to prevent, and

this Court has invalidated an attempt by Congress to evade

the right to trial by jury in similar fashion.

The notice and opportunity to opt out of the class did not

preserve the rights of future victims. The failure by an

individual who has not yet suffered asbestos injury to execute

and submit opt-out form cannot be deemed a knowing and

intelligent waiver of the right to trial by jury.

The prospect of administrative efficiency and lower

transaction costs do not trump the Seventh Amendment.

However, the rights of futures can be preserved without

destroying or crippling the class action. This can be

accomplished by conditioning the certification of a settlement

class action on modification of the agreement. That

modification would provide that future victims shall have a

4

reasonable period of time following discovery of the disease

in which to choose between the terms of the settlement or and

a tort action with the right to a jury trial.

ARGUMENT

IL CONSIDERATION OF SETTLEMENT IN

CERTIFYING A CLASS ACTION INVOLVING THE

MONETARY CLAIMS OF FUTURE ASBESTOS

VICTIMS RATIFIES THE TRADING AWAY OF

FUTURE CLAIMANTS’ RIGHT TO TRIAL BY JURY.

In the coming years, a significant number of Americans

who are presently in good health will receive bad news from

their doctors. They will have developed cancer,

mesothelioma, or other disease caused by asbestos in the air

where they worked years ago. If the settlement at issue in this

case is approved, many workers will get a second dose of bad

news from their attorneys. Unlike most Americans, who may

take for granted that they are entitled to seek legal redress if

they are wrongfully injured, these future asbestos victims will

find that they have been locked out of the courthouse. Their

right to put their case before a jury selected from the

community will have been transformed into an application for

compensation under an administrative scheme. The

courthouse door will not have been slammed shut by their

elected legislators. It will have been the work of private

individuals and their attorneys who were permitted by courts

to trade away not only their own right to sue, but also the

rights of future victims.

Judge Becker, writing for a unanimous court below,

correctly characterized this case as one of the “great cases

that force the judicial system to choose between forging a

solution to a major social problem on the one hand, and

preserving its institutional values on the other.” Georgine v.

Amchem Products, Inc., 83 F.3d 610, 617 (3rd Cir. 1996).

ED SE ee ee.

ome

5

Conceding that the class action settlement represented

arguably a brilliant partial solution” to the challenge to the

civil justice system posed by asbestos litigation, Jd, the Third

Circuit nevertheless refused to harm the victims of asbestos

disease a second time by sacrificing their rights on the altar of

administrative efficiency.

The core of the Third Circuit’s decision was to hold this

class action to the same standards under Fed. R. Civ. Pro. 23

that would be applied to certification of a class action being

prepared for trial. CCR asserts that the court’s approach is a

“wholly artificial inquiry’ concerned with “hypothetical

litigation.” Brief for Petitioners at 16. ATLA suggests that the

lower court’s analysis draws into sharp focus a fundamental

problem that would otherwise be lightly dismissed as a

“settled” issue:

[T]he settlement would extinguish asbestos-related causes

of action of exposed individuals who currently suffer no

physical ailments, but who may, in the future, develop

possibly fatal asbestos-related disease. These “futures

claims” of “exposure-only” plaintiffs would be

extinguished even though they have not yet accrued.

83 F.3d at 617.

Claims seeking money damages for asbestos injuries are

legal in nature and the claimants’ right to trial by jury is

clearly protected by the the Seventh Amendment. Curtis v.

Loether, 415 U.S. 189 (1974). It may be true that class

members stand to receive valuable consideration in return for

giving up their remedy in the tort system. Brief for Petitioners

at 14. If the court addressing certification takes the settlement

into account, the rights of “futures” will be extinguished

primarily on the basis of fairness of the monetary terms of the

settlement and adequacy of representation. The right of a

individual claimant to choose whether to relinquish his or her

right to a trial by jury has been removed from consideration,

rendered invisible.

6

The Third Circuit at several points expressed misgivings

as to due process implications of extinguishing the rights of

“futures.” E.g., 83 F.3d at 617 & 623. Because the court

based its reversal on the application of Rule 23, it did not

specifically address the constitutional issue raised by ATLA to

the district court: Amicus respectfully asks this Court to

address explicitly what is implicit in the Third Circuit's

decision -- that a class of claimants may not use the

mechanism of a class settlement to trade away the

constitutional right of future claimants to trial by jury.

0. THE RIGHT TO TRIAL BY JURY IS

FUNDAMENTAL AND ANY INFRINGEMENT MUST

BE STRICTLY SCRUTINIZED.

A. Any Curtailment Of The Right To Civil Trial By

Jury, Explicitly Guaranteed By The Constitution,

Must Be Strictly Scrutinized And Justified By A

Compelling State Interest.

Government actions which impinge upon fundamental

rights must be reviewed under a standard of strict scrutiny:

Only those which are necessary to advance a compelling state

interest and do so in the least restrictive manner are

permissible. Shapiro v. Thompson, 394 U.S. 618, 634 (1969).

Fundamental rights are those which are “explicitly or

implicitly guaranteed by the Constitution.” San Antonio

Indep. School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1972).

The Seventh Amendment guarantees the right to trial by

jury in civil cases.! Congress has restated this guarantee even

more forcefully for federal courts:

! In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury, shall be

otherwise reexamined in any Court of the United States,

than according to the rules of common law.

- eS RE EE ee A

>

The night of trial by jury as declared by the Seventh

Amendment to the Constitution or as given by a statute of

the United States shall be preserved to the parties

inviolate.

Fed. R. Civ. Pro. 38(a).

This Court has repeatedly emphasized that “Maintenance

of the jury as a fact-finding body is of such importance and

occupies so firm a place in our history and jurisprudence that

any seeming curtailment of the right to a jury trial should be

scrutinized with the utmost care.” Dimmick v. Schiedt, 293

U.S. 474, 486 (1935), quoted in Beacon Theatres, Inc. v.

Westover, 359 U.S. 500, 501 (1959); and in Chauffeurs,

Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S.

558, 565 (1990)(“this Court has carefully preserved the right

to trial by jury where legal rights are at stake.”’).

It has been noted that “the scope and effect of the

Seventh Amendment . . . perhaps more than with any other

provision of the Constitution, are determined by reference to

the historical setting in which the Amendment was adopted.”

Parklane Hosiery Co. v. Shore, 439 US. 322, 339

(1979)(Rehnquist, C.J., dissenting). It has also been observed

that this right has suffered a “gradual process of judicial

erosion.” Jd. At times it has even become the object of

disparagement, perhaps because its history has become

overlooked or unappreciated. See Stephan Landsman, The

Civil Jury In America: Scenes From an Unappreciated

History, 44 Hastings L.J. 579 (1993).

1. The right to trial by jury in civil cases was an

important element in the struggle for independence.

The jury trial is not a merely a procedural feature of our

civil justice system. A war was fought, and lives lost, to win

this right. The jury was immensely popular among the

U.S. Const., amend vii.

American colonists. They admired the heroism of Edward

Bushnell and the other jurors who refused to convict Quaker

William Penn in 1670, though they were fined and jailed by

the trial judge. See John Guinther, THE JURY IN AMERICA ch.

1 (1988)

In 1688, a jury acquitted seven Anglican bishops of

seditious libel for signing a letter in opposition to James IL.

This case elevated the jury in public esteem “as a bulwark of

liberty, as a means of preventing oppression by the Crown.”

Austin Scott, 7rial by Jury and the Reform of Civil

Procedure, 31 Harv. L. Rev. 669, 676 (1918). “Treatises

extolling the jury flooded the market and profoundly

influenced eighteenth century American as well as English

views about jury trial.” /d.

The colonists followed the lawsuits of John Wilkes and

his printer against officials bent on preventing his allegedly

seditious publication, resulting in a large jury award of

punitive damages. Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489

(K.B. 1763) and Huckle v. Money, 2 Wils. 205, 95 Eng.Rep.

768 (C.P. 1763). “Wilkes’ case and his ongoing conflicts with

the British administration were a matter of keen interest in the

American colonies. South Carolina went so far as to provide

Wilkes monetary support for one of his political campaigns.”

Landsman, supra, at 591. Wilkes’ case was cited in debates in

support of the need for constitutional protection of the civil

jury. See PENNSYLVANIA AND THE FEDERAL CONSTITUTION

1778-1788, 781-82 (John B. McMaster & Frederick D. Stone

eds. 1988)(statement of Robert Whitehall at Pennsylvania

ratifying convention).

At the same time, the colonists found themselves

frequently deprived of civil jury rights. “Because of the jury’s

power, the British authorities increasingly sought to either

control or avoid jury adjudications. The struggle over jury

rights was, in reality, an important aspect of the fight for

American independence and served to help unite the

colonies.” Landsman, supra, at 596. A primary grievance of

9

the American colonists was the extensive effort by England to

shift the adjudication of civil and criminal disputes from

colonial courts, where local juries sat, to Vice-Admiralty

courts and other non-jury tribunals administered by judges

beholden to the Crown. See Carl Ubbelohde, THE VICE-

ADMIRALTY COURTS AND THE AMERICAN REVOLUTION 209-

11 (1960); Roscoe Pound, THE DEVELOPMENT OF

CONSTITUTIONAL GUARANTEES OF LIBERTY 69-72 (1957),

Charles W. Wolfram, The Constitutional History of the

Seventh Amendment, 57 Minn. L. Rev. 639, 654 (1973). The

colonists complained bitterly of this infringement through the

Stamp Act Congress, the Continental Congress, and, finally,

aay Declaration of Independence. Landsman, supra at 595-

2. The Adoption of the Seventh Amendment Was Crucial to

Ratification of the Constitution.

Independence from England did not diminish the

sacredness of the jury in the eyes of the new Americans. On

Sept 12, 1787, as the Constitutional Convention was nearing

the end of its work in Philadelphia, Wilson “observed to the

House that no provision was yet made for juries in Civil cases

and suggested the necessity of it.” A motion to add that right

to Art. III, §2, cl.3, which guaranteed trial by jury in criminal

cases, failed Edith Guild Henderson, 7he Background of the

Seventh Amendment, 80 Harv. L. Rev. 289 (1966). That

Omission suggested to many that the constitution represented

“virtual abolition of the civil jury” and very nearly doomed

ratification of the entire constitution. Henderson, supra, at

295-98; Wolfram, supra, at 672 n.89.

During the ratification debates in the various states, the

Antifederalists, repeatedly expressed their fear that, absent

some specific constitutional provision to the contrary, the new

federal Congress could eliminate jury trials in civil cases in the

federal courts. James S. Campbell and Nicholas Le Poidevin,

Complex Cases and Jury Trials: A Reply to Professor

Arnold, 128 Univ. of Pa. L. Rev. 965, 971 (1980); see, e.g. 3

10

THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDFRAL CONSTITUTION 218 (J. Elliot 2d

ed. 1836)(remarks of James Monroe at the Virginia

ratification convention). Justice Story subsequently recounted

that this point “was pressed with an urgency and zeal, which

were well nigh preventing its ratification.” Joseph Story,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 653 (R. Rotunda & J. Nowak eds. 1987) (1833).

Ultimately, the promise of a Bill of Rights, s, including ing civil

As soon as the constitution was adopted, this nght was

secured by the seventh amendment of the constitution

proposed by congress, and which received an assent of the

people, so general, as to establish its importance as a

fundamental guarantee of the rights and liberties of the

people

Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 445 (1830).

B. The Seventh Amendment Was Designed To Limit

Judicial Power and Enhance Self Government

Through the Participation of Ordinary Citizens in

Jury Trials.

Those who fought so strenuously for this right in 1791

saw the jury as an essential element of limited, democratic

government. The jury was intended as a check on the power

of the federal judiciary. Morris S. Amold, A Historical

Inquiry Into the Right to Trial By Jury in Complex Civil

Litigation, 128 U. Pa. L. Rev. 829, 832-35 (1980). Reacting

to their experiences at the hands of autocratic British judges,

The founders of our Nation considered the nght of tal by

jury in civil cases an important bulwark against tyranny

and corruption, a safeguard too precious to be left to the

whim of the sovereign, or, it might be added, to that of the

aadiciary

Parklane Hosiery Co. v. Shore, 439 US. 322, 343

(1979)(Rehnquist, C.J., dissenting).

In addition, the new Americans regarded juries “as more

than a ‘mode of trial’; they were instruments of local

government as well.” Amold, supra, at 833. See also, Alan

Howard Scheiner, Judicial Assessment of Punitive Damages,

the Seventh Amendment and the Politics of Jury Power, 9\

Colum. L. Rev. 142, 144-49 (1991).

Scholars have concluded on the basis of the historical

records of the period that the civil jury, and most especially

the right to serve on civil juries, was viewed as a political

right of immense importance to independence and self-

government. See, e.g., Vidram David Amar, Jury Service as

Political Participation Akin to Voting, 80 Cornell L. Rev.

203, 218 (1995), Stephan Landsman, The Civil Jury In

America: Scenes From an Unappreciated History, 44

Hastings L.J. 579, 595-97 (1993); Alan Howard Scheiner,

Judicial Assessment of Punitive Damages, and the Politics of

Jury Power, 91 Colum. L. Rev. 142 (1991).

In early colonial times, the jury was the essential

instrument of governance, providing one of the few

experiences common to virtually every citizen In

Massachusetts, for example, one historian characterizes the

jury as the central instrument of governance. Its wide-ranging

of both the royal executive and colonial legislature. William E.

Nelson, AMERICANIZATION OF THE COMMON LAW: THE

IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY,

1760-1830 (1975).

Spokesmen on all sides of the ratification debate

recognized that the jury box as well as the ballot box were

fundamental prerequisites to majoritarian self-government. As

the state legislators would protect their constituents against

oppression by the central government, so too jurors could be

expected to “interpose” themselves against the central tyranny

Amar, The Bill of Rights as a Constitution, 100 Yale LJ.

1131, 1186, 1188 (1991). Jefferson ventured that “[w]ere I

called upon to decide whether the people had best be omitted

in the Legislation or Judicial department, I would say it is

better to leave them out of the Legislative,” quoted in Amar,

100 Yale LJ. at 1188.

The jury role in self-government was all the more critical

to the Antifederalists, who viewed the Constitution as an

essentially aristocratic document, creating a Congress that

would serve the elite and possess “an insufficient sense of

sympathy with, and connectedness to, ordinary people.” /d. at

1140. Popular representation in the judicial branch was

needed so that national laws, adopted by persons unfamiliar

with local circumstances, would be modified in their

application by representatives better acquainted with local

needs and customs. Rose, 7he Ancient Constitution vs. The

Federalist Empire: Anti-Federalism From the Attack on

"“Monarchism" to Modern Localism, 84 N.W. U. L. Rev. 74,

at 91 (1989). To the antifederalists, the absence of the civil

jury “would fatally weaken the role of the people in the

administration of government.” Herbert Storing, WHAT THE

ANTI-FEDERALISTS WERE FoR 19 (1981).

Alexis de Tocqueville analogized the jury to:

_ @ gratuitous public school, ever open, in which every

juror learns his rights, enters into daily communication

with the most learned and enlightened members of the

the laws, which are brought within the reach of his

capacity by the efforts of the bar, the advice of the judge,

and even the passions of the parties... I look upon [the

jury] as one of the most efficacious means for the

13

1 Alexis de Tocqueville, DEMOCRACY IN AMERICA 295-96

(Bradley rev. ed. 1945). He concluded that “the jury is, above

all, a political institution, and it must be regarded in that light

in order to be duly appreciated.” Id. at 293.

In short, the Seventh Amendment was designed to

protect not only the civil right to have one’s case tried to a

jury, but also the political right to serve as a juror. See

generally, Vidram David Amar, supra, at 218.

This role of the jury as an instrument of self-government

has been well recognized by this Court. Edmonson vy.

Leesville Concrete Co. 111 S. Ct. 2077, 2085 (1991);

Dimick v. Schiedt, 293 U.S. 474, 485-86 (1934); Galloway v.

United States, 391 U.S. 372, 397-400 (1943)(Black, J.,

dissenting); Parklane Hosiery Co. v. Shore, 439 U.S. 322,

338-44 (1979)(Rehnquist, J., dissenting). Consequently, the

Court has emphasized, “The right of jury trial in civil cases at

common law . . . should be jealously guarded by the courts”

Jacob v. New York, 315 U.S. 752, 753 (1943). See also, Lyon

v. Mutual Benefit Assoc., 305 U.S. 484, 492 (1939) (“It is

essential that the right to trial by jury be scrupulously

safeguarded”).

ATLA suggests that the standard the Petitioner

advocates for certification of settlement classes under Fed. R.

Civ. Pro. 23 would remove this scrupulous judicial protection,

by rendering the jury rights of future victims “invisible” to the

courts. The “settlement” standard accomplishes this by

allowing the parties to shift common law claims -- including

the claims of future victims -- to a non-jury forum,

undermining the civil jury in precisely the manner which the

framers of the Seventh Amendment sought to prevent.

Il. THE PROPOSED SETTLEMENT VIOLATES THE

RIGHT OF FUTURE CLAIMANTS UNDER THE

SEVENTH AMENDMENT RIGHT TO TRIAL BY

JURY.

14

A. Seventh Amendment Precludes Shifting of

Common Law Claims To A Non-Jury Tribunal

The claims of asbestos victims for monetary damages are

clearly within the Seventh Amendment guarantee of the nght

to trial by jury in “suits at common law.” Curtis v. Loether,

415 U.S. 189, 196 (1974). By a perverse alchemy, the class

action settlement in this case transformed those legal claims

into scrip which can only be redeemed through the

bureaucratic compensation scheme devised by CCR.

A worker who develops an asbestos disease years from

now will find that his right to present his case to a jury in a

tort action has already been traded away. As to these future

victims of asbestos-related disease, the right to trial by jury

has surely not been “preserved” as commanded by the

Seventh Amendment. Their claims have effectively been

kidnapped -- spirited away to a forum that does not recognize

that right.

This Court addressed an analogous situation in

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S. Ct.

2782 (1989). The issue there was whether Congress could

authorize district courts to refer claims of fraudulent

conveyance, which could otherwise be adjudicated by the

district court, to Bankruptcy Courts. This Court held that

neither Congress nor the courts may strip claimants asserting

“private rights” of their Seventh Amendment guarantee of

trial by jury merely by transferring the claims to a non-jury

tribunal.

Justice Brennan, writing for the majority, explained that

Congress may assign statutory claims involving “public

rights,” --. matters in which the government is a party or

which are closely intertwined with a a federal regulatory

program -- -- to a forum in which jury trials are unavailable. But

in “private tort, contract, and property cases, as well as a vast

array of other cases, “Congress may not deprive parties

litigating over that right of the Seventh Amendment's

15

guarantee to a jury trial.” Granfinanciera, 109 S. Ct. at 2795-

96. “[Njor can Congressconjure away the Seventh

Amendment by mandating that traditional legal claims be

brought there or taken to an administrative tribunal.” Jd

Althought the Court’s language is directed at the power

of Congress, it seems clear that the Seventh Amendment

prohibition against referring legal claims involving private

rights to non-jury adjudicators applies with equal force to

actions of the district courts. See G. Ray Warner, Rotten To

the “Core”: An Essay on Juries, Jurisdiction and

Granfinanciera, 59 U.M.K.C. L. Rev. 991, 1011 (1991).

ATLA suggests that the constitutional teaching of

Granfinanciera applies to the issue facing this Court. The

class action settlement seeks to transfer, prospectively,

common law claims that otherwise would clearly be subject to

the Seventh Amendment to a forum in which juries are not

available. Absent a valid waiver, this deprivation of future

claimants’ right to trial by jury clearly violates the Seventh

Amendment.

B. Notice and Opt-Out At the Time of Certification of

the Class Do Not Afford Future Claimants the

Opportunity For Knowing And Intelligent Waiver Of

The Right To Trial By Jury.

1. Waiver of the Right to Trial by Jury Must Be Knowing

and Intelligent.

A party may, of course, waive the right to a jury trial.

Waiver of constitutional rights must be “voluntary, knowing,

and intelligent.” Fuentes v. Shevin, 407 U.S. 67, 95 (1972),

D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 187 (1972).

This includes waiver of trial by jury, which must be knowing

and intelligent in light of the circumstances of each case.

Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938); Adams v.

United States, 317 U.S. 269 (1942). While Johnson and

16

Adams involved the right to jury trial in criminal cases, this

Court’s opinion in Overmyer, a civil case, applied the same

standards the Court set forth in its criminal decisions. See

Erie Telecommunications, Inc. v. City of Erie, 853 F.2d

1084, 1095 (3d Cir. 1988). See also Moore v. Fragatos, 321

N.W.2d 781 (Mich. App. 1982)(invalidating medical

malpractice arbitration agreement, indicating that civil parties

are entitled to the same degree of protection regarding waiver

of jury trial as criminal defendants).

The United States Courts of Appeals have

overwhelmingly held that contractual waiver of the right to

trial by jury by one who has not yet suffered harm must be

knowing, intelligent and voluntary. See, Hulsey v. West, 966

F.2d 579, 581 (10th Cir. 1992); Leasing Serv. Corp. v.

Crane, 804 F.2d 828, 832 (4th Cir. 1986); K.M.C. Co, Inc. v.

Irving Trust Co, 757 F.2d 752, 755-56 (6th Cir. 1985). See

also Broemer v. Abortion Services of Phoenix, 840 P.2d

1013, 1017 (Ariz. 1992)(contractual agreement between 4

patient and doctor to submit malpractice claims to arbitration

was unenforceable where “there was no conspicuous OF

explicit waiver of the right to a jury tnal or any evidence that

such rights were knowingly, voluntarily and intelligently

waived.”’)

2. Notice to Class Members Does Not Result in Knowing

and Intelligent Waiver.

Prior to approving this settlement, the district court

oversaw an extensive campaign to notify the members of the

class, inform them of the terms of settlement, and provide

them with an opportunity to opt out of the class. ATLA

submits that this notice was inherently inadequate as a basis

for a knowing and intelligent waiver of jury rights.

This Court has indicated that the “opt-out right is

required . . . where personal monetary relief is being sought

[because] the individual class members may have a strong

interest in pursuing their own litigation.” Penson v. Terminal

te

17

Transport Co., 634 .2d 989, 993 (Sth Cir. 1981). Indeed, the

Court has held “due process requires at a minimum that an

absent plaintiff be provided with an opportunity to remove

himself from the class by executing an “opt out” or “request

for exclusion” form to the court.” Phillips Petroleum y.

Shutts, 472 U.S. 797, 811 (1985). Cf Brown v. Ticor Title

Ins. Co., 982 F.2d 386, 392 (9th Cir. 1992), cert. dism. as

improvidently granted, 114 S. Ct. 1359 (1994)(where Brown

had no opportunity to opt out of class action, “there would be

a violation of minimal due process if Brown’s damage claims

were held barred by res judicata.”).

In the circumstances surrounding future victims,

however, the failure to return an opt-out form cannot

reasonably be deemed a knowing and intelligent waiver of the

right to trial by jury. As this Court warned in Mullane vy.

Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15

(1950), “[W]hen notice is a person’s due, process which is a

mere gesture is not due process.” 339 U.S. at 314-15.

For such notice to serve as a basis for a valid waiver on

the part of a person who has not yet developed any sign of

asbestos disease would require the recipient to use not one,

but two crystal balls -- one with perfect insight into the past

and another with a clear view of the future.

Many persons are simply not aware that they were

exposed to asbestos at some time in the past. Often workers

were not told that the powdery material they were working

with was asbestos. For a striking example, the Court need

look no further than to a case currently before it. Metro-North

Commuter Railroad Co. v. Buckley, No. 96-320, cert.

granted Nov. 1, 1996. In addition, not every exposed person

actually worked with asbestos on a daily basis. Mesothelioma,

perhaps the most severe asbestos-caused disease, can be

caused by relatively brief exposure decades earlier. Georgine,

83 F.3d at 633. A leading scholar in the field of class actions

pointedly states:

18

For class members who cannot currently identify

themselves for purposes of protecting their interests with

respect to a class action purportedly commenced on their

behalf, an opt-out night within a court-designated period

of time . . . is of no beneficial use.

1 Herbert B. Newberg, CLASS ACTIONS § 1.23 at 1-55

(1992). As the Texas attorney general suggests, people who

do not have accurate information regarding their exposure

many years in the past, are likely to treat even individual

notices “as junk mail.” State of Texas Amicus Brief, Georgine

v. Amchem, 83 F.3d 610 (3rd Cir. 1996), at 3.

Secondly, even a class member who is aware of his

exposure cannot predict what, if any, harm will come to him.

He can have no basis for determining whether his medical and

financial conditions at the time tragedy strikes would make

the settlement more or less advantageous than a tort lawsuit.

See Brian Wolfman and Alan B. Morrison, Representing The

Unrepresented In Class Actions Seeking Monetary Relief, 71

N.Y.U. L. Rev. 439, 513 (1996).

This situation is little more than a new variation on an old

injustice: rigid statutes of limitations or statutes of “repose”

under which a person’s cause of action in tort could become

time-barred even before any harm occurred or became

manifest. The unfairness of the harsh rule was forcefully

portrayed by Judge Frank:

Except in topsy-turvy land, you can’t die before you are

conceived, or be divorced before ever you marry, or

harvest a crop never planted, or burn down a house never

built, or miss a train running on a nonexistent railroad.

For substantially similar reasons, it has always heretofore

been accepted as a sort of logical axiom that a statute of

limitations does not begin to run against a cause of action

before that cause of action exists.

Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir.

1952). Nearly every jurisdiction has replaced this harsh result

19

with a “discovery rule,” under which the time limit does not

begin to run until the person knows or should have known of

his or her injury. See, e.g., Urie v. Thompson, 337 U.S. 163

(1949). A leading treatise opines: “The fairness and justice of

the rule is evident. It would be a travesty of justice if a

plaintiff were to lose a meritorious cause of action where he

had no way of knowing that an injury or illness was product

related”” 2A Louis R. Frumer and Melvir I. Friedman,

PRODUCTS LIABILITY §12.02[3] at 12-28 (1991).

Nor is it fair, ATLA submits, to strip the victim of

asbestos disease of the right to a jury trial for failing to opt

out of a class action before any sign of the disease became

manifest.

fil. DEPRIVING FUTURE VICTIMS OF A

MEANINGFUL OPPORTUNITY TO CHOOSE A JURY

TRIAL SERVES NO COMPELLING’ STATE

INTEREST.

A. The Seventh Amendment May Not Be Sacrificed In

Pursuit Of Administrative Efficiency.

The briefs of Petitioners and supporting amici are replete

with arguments that the proposed settlement promises

substantial savings in time and transaction costs compared

with the tort system.

It is true that the growing number of civil actions by

persons suffering asbestos-related disease presents “an

important challenge to the civil justice system.” Deborah R.

Hensler, Asbestos Litigation In the United States: A Brief

Overview (RAND Institute For Civil Justice 1992). However,

it must also be recognized that this situation has been imposed

on our courts by a long and egregious pattern of wrongdoing

by the asbestos industry. Ronald L. Motley, Susan Nial, A

Critical Analysis of the Brickman Administrative Proposal:

Who Declared War on Asbestos Victims’ Rights?, 13

Cardozo L. Rev. 1919 (1992)(detailing the “sordid history” of

20

the asbestos industry’s deliberate exposure of American

workers to asbestos and its cover-up of the tragic

consequences); Borel v. Fibreboard Corp., 493 F.2d 1076,

1084-86, 1092-94 (Sth Cir. 1973)(reviewing evidence that

defendants ignored known dangers of asbestos and failed to

warn workers).. In their efforts to meet this challenge, courts

must not inflict a second injury on asbestos victims by

eliminating their constitutional rights.

Convenience and efficiency, though laudable, do not

trump the Seventh Amendment. The Granfinanciera Court

emphasized this point. “It may be that providing jury trials in

some fraudulent conveyance actions . . . would impede the

swift resolution of bankrupcy proceedings and increase the

expense of Chapter 11 reorganizations. But ‘these

considerations are insufficient to overcome the clear

command of the Seventh Amendment.”” 109 S. Ct. at 2801,

quoting Curtis v. Loether, 415 U.S. at 198.

As the Chief Justice has observed:

[N]o amount of argument that the device provides for

more efficiency or more accuracy or is fairer will save it

if the degree of invasion of the jury’s province is greater

than allowed in 1791. To rule otherwise would effectively

permit judicial repeal of the Seventh Amendment . . .

The guarantees of the Seventh Amendment will prove

burdensome in some instances; the civil jury was surely a

burden to the English governors who, in its stead,

substituted the vice-admiralty court. But, as with other

provisions of the Bill of Rights, the onerous nature of the

protection is no license for contracting the right secured

by the Amendment.

Parklane Hosiery Co. v. Shore, 439 US. 322, 348

(Rehnquist, C.J., dissenting).

21

B. The Constitutional Rights Of Future Victims Can

Be Preserved By Permitting Opt Out At The Time

When Injury Becomes Manifest.

ATLA, as noted earlier, does not oppose the use of class

actions to meet the challenge of mass tort litigation provided

that the right to trial by jury is preserved for each and every

claimant as demanded by the Seventh Amendment. The

previous ana.ogy to the discovery rule suggests that

compliance with the Seventh Amendment is feasible in this

case without destroying the class action.

ATLA suggests that, regardless of whether the Court

affirms or reverses the judgment of the Third Circuit, the

Court’s opinion make clear that the Federal Rules of Civil

Procedure are expressly subject to the dictates of the

Constitution, including the Seventh Amendment. Any

certification of a class, therefore, must preserve the right to

trial by jury of the class members.

Where the settlement class includes future claimants, as

in the present case, certification should be conditioned on the

presence in the settlement agreement of a provision which

recognizes that those class members who develop an

asbestos-related disease in the future will be afforded a

reasonable period of time in which to opt out of the class and

file a civil action in tort.

ATLA suggests that preserving claimants’ jury rights

would not impose an unreasonable burden on CCR or on the

operation of the settlement agreement. The fact is that the

vast majority of asbestos cases -- over 99% -- end in

settlement. Hensler, supra, at 9; In re Joint E. & S. Dists.

Asbestos Litigation, 129 B.R. 710, 747 (E. & SDNY.

1991). Petitioners assert that the settlement agreement in this

case provides compensation that is a “reasonable reflection of

historical settlement averages from the tort system,” and

provides other significant advantages over the tort system.

Brief for Petitioners at 14. If that is indeed the case, there is

22

no reason to anticipate more than a tiny fraction of claimants

would choose to exercise their right to a jury trial. The fact

that future claimants would be able to “vote with their feet”

provides an added incentive for the settling parties to treat the

claims of future victims equitably.

A number of commentators have suggested such a

delayed opt-out as a means of preserving the rights of future

claimants. See Wolfman & Morrison, supra at 478. John C.

Coffee, Jr., Class Wars: The Dilemma of the Mass Tort class

Action, 95 Colum. L. Rev. 1343, 1347-49 (1995); Peter H.

Schuck, Mass Torts: An Institutional Evolutionist

Perspective, 80 Cornell L. Rev. 941, 964-68 (1995). Roger

C. Cramton, I/ndividualized Justice, Mass Torts, and

“Settlement Class Actions,” 80 Cornell L. Rev. 811, 836

(1995).?

Indeed, at least one court has approved a class action

settlement that included just such a delayed opt-out for class

members who may suffer injury in the future. In Bowling v.

Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio 1992), appeal dism.

995 F.2d 1066 (6th Cir. 1993), a class action by patients who

received defective artificial heart valves, the settlement

agreement expressly provides that class members whose heart

valves fracture in the future may opt to reject guaranteed

compensation and sue for damages at that time. /d. at 150.

Addressing the challenge of asbestos litigation does not

require sacrificing the constitutional right to trial by jury.

2 In fact, the settlement agreement in this case does provide a

“back-end opt-out,” providing a tort-like procedure for those who

are dissatisfied with the offer of compensation under the settlement.

However, the procedure is severely restricted as to the number of

claimants who invoke it and the issues that may be raised. See.

Georgine, 83 F.3d at 620.

23

CONCLUSION

For these reasons, amicus respectfully urges this Court to

condition any order approving the fairness of the class action

settlement in this case on modification of the settlement

agreement which will afford future claimants a meaningful

opportunity to exercise his or her right to trial by jury.

Respectfully submitted,

Jeffrey Robert White

1050 31st St., N.W.

Washington, DC 20007

(202) 965-3500

Attorney for Amicus Curiae

Association of Trial Lawyers of America

January 15, 1997