# Amicus Curiae Brief — Dow Chemical Co. v. Stephenson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0593%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 999

## Text

y j
a | YAN 24
No. 02-271 | my

IN THE

Supreme Court of the United States

IN RE AGENT ORANGE PRODUCT LIABILITY LITIGATION:

Dow CHEMICAL COMPANY, MONSANTO CHEMICAL, ET AL.,
Petitioners,

V.

DANIEL RAYMOND STEPHENSON, ET AL.,
Respondents.

On Writ Of Certiorari to the
United States Court of Appeals
for the Second Circuit

AMICUS CURIAE BRIEF OF
THE ASSOCIATION OF TRIAL LAWYERS OF
AMERICA
IN SUPPORT OF THE RESPONDENTS

MARY E. ALEXANDER JEFFREY ROBERT WHITE*

1050 31st St., N.W. 1050 31st. St., N.W.
Washington, DC 20007 Washington, DC 20007
(202) 965-3500 (202) 965-3500
President, * Counsel of Record
The Association of Attorney for Amicus Curiae
Trial Lawyers of America

TABLE OF AUTHORITIES... seeseenne . iii

IDENTITY AND INTEREST OF AMICUS

CURIAE - seinabunueemennmenmmemmees a

SUMMARY OF THE ARGUMENT. ........ccccccccccseceeees 2

ARGUMENT re Eee 5

I. THE SETTLEMENT OBTAINED IN

VIOLATION OF THE FUNDAMENTAL
CONSTITUTIONAL RIGHTS OF
FUTURE VICTIMS OF AGENT
ORANGE Is SUBJECT To
COLLATERAL ATTACK. .ncccccccccccccccccccccccccseces 5
A. The Settlement Was Obtained In

TABLE OF CONTENTS

Violation of the Constitutional
Right To Trial By Jury of Future
Victims. ..

The Principles Set Forth By This
Court In Amchem and Ortiz are
applicable to this Settlement

11

A CLASS ACTION THAT PURPORTS
TO INCLUDE THOSE WHO WILL
SUFFER COMPENSABLE PERSONAL
INJURY ONLY IN THE FUTURE IS
STRUCTURALLY AND
PROCEDURALLY INCAPABLE OF
AFFORDING THOSE VICTIMS DUE
PROCESS.

14

A. Meaningful Notice Cannot

Be

Provided To Unknown Future

Personal Injury Victims.

- 16

ii

B. Named Representatives Cannot
Provide Adequate Representation
of Future Personal Injury Victims..... 17

C. Future Personal Injury Victims
Cannot Be Provided With A

Meaningful Opportunity At
Settlement To Opt Out of the Class... 21
III.CLASS ACTION SETTLEMENTS THAT
INCLUDE FUTURE PERSONAL
INJURY CLAIMANTS CAN PROTECT
DUE PROCESS RIGHTS BY
PROVIDING A DELAYED OPT-OUT. ......0000-24

CONCLUSION 27

TABLE OF AUTHORITIES

CASES

Amchem Products, Inc. v. Windsor, 521 U.S. 591
ES Se 11, 17, 18, 25

Beacon Theatres, Inc. v. Westover, 359 U.S. 500
EEE SS EET 10

Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio
1992), appeal dism. 995 F.2d 1066 (6th Cir. 1993)
a aed eecr premnentcesnnsnenssnnsseeseet 26

Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir.
1992), cert. dism. as improvidently granted, 511

EE TTT 21
Causey v. Pan Am World Airways, Inc., 66 F.R.D.
Ee 21
Chauffeurs, Teamsters and Helpers, Local No. 391 v.
Terry, 494 U.S. 558 (1990)...........cccccccseceeeeeeeeees 10
Curtis v. Loether, 415 U.S. 189 (1974)................... 11
Dimick v. Schiedt, 293 U.S. 474 (1935)................. 10
Dincher v. Marlin Firearms Co., 198 F.2d 821 (2d
EEL EES TLL 23
Georgine v. Amchem Products, Inc., 83 F.3d 610
EE ELE 17
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)
ES EEE TEE 11
Griffin v. Griffin, 327 U.S. 220 (1946)................... 16

Hansberry v. Lee, 311 U.S. 32, 42 (1940). . 15, 18, 19

Harper v. Virginia Dep’t of Transp., 509 U.S. 86
aac rsiccricecetennsssnsccnacsess 12,14

iv

Hobbs v. Northeast Airlines, 50 F.R.D. 76 (E.D. Pa.

1970). ...c.cccceccseccosccessccescssesseeseesessssesssrsensssssenssnsens 21
Huckle v. Money, 2 Wils. 205, 95 Eng.Rep. 768 (C.P.
17GB). ....ecceccceccecsssccenccesssscsesecssnssenssssrsnssnsssssnsensennses 9

In re “Agent Orange" Prod. Liab. Litig., 996 F.2d
1425 (2d Cir. 1993), cert. den., 510 U.S. 1140... 23

In re AH. Robins Co., Inc., 880 F.2d 709 (4th Cir.),
cert. denied, 493 U.S. 959 (1989) ......-----eeeeees 26

In re Agent Orange Prod. Liab. Litig., 611 F. Supp.
1223 (E.D.N.Y. 1985).........:::ccccceseeeeerseeennsenennnenes 5

In re Agent Orange Prod. Liab. Litig., 597 F. Supp.
140 (E.D.N.Y. 1984)........cccccceeeeeeseereneenennnnennes 5, 22

In Re Agent Orange Product Liab. Litig., 818 F.2d
145 (2nd Cir. 1987), cert. denied, 484 U.S. 1004
(1988)...........eeecccesscccsserrsessnessssnnessnnnsssensssnnsens 6, 18

In re Diet Drugs Products Liab. Litig., 2000 WL
1222042 (E.D.Pa. 2000)........-..::eseecsseeereereenennnnens 26

James B. Beam Distilling Co. v. Georgia, 501 US.
B29 (1991)........eccccceesscessseeceesrecsesennsssrssennneens 12, 13

Kremer v. Chemical Construction Corp., 456 U.S. 461
(1982)........cc.ccecccorcesscsssssssenreesesessssssnsenssnsenrssnossnsess 7

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).6
Martin v. Wilks, 490 U.S. 755 (1989). ....-.-.---+0-00+ 21

Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950). ..........cccccceseseeeeeeeeeessennennnnnenannnes 17

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)..... 11
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)passim

Parklane Hosiery Co. v. Shore, 439 U.S. 322 ey

Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 445 (1830)9

Vv

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)

Richards v. Jefferson Cty, 517 U.S. 793 (1996) 16, 18

Ryan v. Dow Chemical Co., 781 F. Supp. 902
ea: Tt iainbesendccinesnnenndecnensineninabanianninsuinen 19

Urie v. Thompson, 337 U.S. 163 (1949)................. 23
Wilkes v. Wood, 98 Eng. Rep. 489 (K.B. 1763)........ 9

Yandle v. PPG Indus. Inc., 65 F.R.D. 566 (E.D. Tex.
ETE eee aoe oe ane 21

CONSTITUTIONS AND STATUTES

8 LESSER Cee nT oT 8

4 FB ) EE ESEETE Ere 14

OTHER AUTHORITIES

Amar, Akhil Reed, Fourth Amendment First
Principles, 107 Harv. L. Rev. 757 (1994). ............ 9

Bone, Robert G.., Rethinking the “Day in Court” Ideal
and Nonparty Preclusion, 67 N.Y.U. L. Rev 193

Coffee, John C., Jr., Class Wars: The Dilemma of the
Mass Tort Class Action, 95 Colum. L. Rev. 1343

ESAS EPCRA eine ae eron 13, 22, 26
Cramton, Roger C., Individualized Justice, Mass

Torts, and “Settlement Class Actions”: An

Introduction, 80 Cornell L. Rev. 811 (1995)

SE SIE se NER Ce SE Ce aE SO 17, 22, 26

Declaration of Independence (1776) ................:+0++ 9

Henderson, Edith Guild, The Background of the
Seventh Amendment, 80 Harv. L. Rev. 289 (1966)9

vi
Landsman, Stephan, The Civil Jury In America:

Scenes From an Unappreciated History, 44
Hastings L.J. 579 (1993). ........--sseceresererereeenens 8,9

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

National Academy of Sciences, Institute of Medicine,
“Veterans and Agent Orange: Health Effects of

Herbicides Used in Vietnam (1994)................+++++ 5
Newberg, Herbert B., CLASS ACTIONS (1992)....... 23
Restatement of Judgments (1942)................::eee000 20

Schuck, Peter H., Mass Torts: An Institutional
Evolutionist Perspective, 80 Cornell L. Rev. 941

Sa ah AE AS SE SOR 26
Scott, Austin, Trial by Jury and the Reform of Civil
Procedure, 31 Harv. L. Rev. 669 (1918). .............. 9

Siegel, David D., Commentary on 1988 and 1990
Amendments, reprinted in 28 U.S.C.A. (1991).. 14

Trangsrud, Roger H., Mass Trials in Mass Tort
Cases: A Dissent, 1989 U. Ill. L. Rev. 69............ 21

Wolfman, Brian and Alan B. Morrison, Representing
The Unrepresented In Class Actions Seeking
Monetary Relief, 71 N.Y.U. L. Rev. 439 (1996). ..23,
26

Wolfram, Charles W., The Constitutional History of
the Seventh Amendment, 57 Minn. L. Rev. 639
ITT scitnienteinntiaaindainitaiihiieatitasiatataiaahutibiieaiaatianeai y

Woolley, Patrick, Rethinking the Adequacy of
Adequate Representation, 75 Tex. L. Rev. 571

Woolley, Patrick, The Availability Of Collateral
Attack For Inadequate Representation In Class
Suits, 79 Tex. L. Rev. 383 (2000). ............:.cceeeees 20

--

No. 02-271
IN THE

Supreme Court of the United States

IN RE AGENT ORANGE PRODUCT LIABILITY LITIGATION:
Dow CHEMICAL COMPANY, MONSANTO CHEMICAL, ET AL.,

Petitioners,
v.

DANIEL RAYMOND STEPHENSON , ETAL.,
Respondents.

On Writ Of Certiorari to the
United States Court of Appeals
for the Second Circuit

AMICUS CURIAE BRIEF OF
THE ASSOCIATION OF TRIAL LAWYERS
OF AMERICA
IN SUPPORT OF THE RESPNDENTS

; The Association of Trial Lawyers of America
[ erent heen anyon submits this brief as amicus
curtae. Consent of the parties to the filing of thi
brief has been filed with the Court.1 ~— :

1 Pursuant to Rule 37.6, Amicus discloses that no counsel for
a party authored any part of this brief, nor did any person or entity
other than Amicus Curiae, its members, or its counsel make a
aed nY Sontemation to he poapasation er cubuitesten ef Gis

— 2

ATLA is a voluntary national bar association
whose approximately 50,000 trial lawyer members
primarily represent individual plaintiffs in civil
actions.

The Seventh Amendment right to trial by jury,
along with the due process right of access to the
courts to seek legal redress, has served as the
cornerstone of the civil justice system. Those rights
provide Americans with the means for vindicating all
others.

The companies responsible for mass torts
present the justice system with severe challenges.
ATLA has never blindly opposed class action
settlements as an intelligent means of addressing
those challenges, provided that the members of the
class are afforded the opportunity to make a knowing
and intelligent choice between the settlement offer
and a tort remedy. In ATLA’s view, the court of
appeals in this case correctly held that a class action
settlement that did not protect the rights of future
victims of Agent Orange is subject to collateral
attack by those victims seeking to exercise their
constitutional right.

SUMMARY OF THE ARGUMENT

1. Petitioners mischaracterize this case as one of
mere dissatisfaction with the outcome of a long-
closed settlement by litigants seeking a “second bite
at the apple” by way of collateral attack. The truth is
that by the time the Vietnam veterans in this case
showed any signs of cancer allegedly caused by
Agent Orange, the apples had all been consumed and
the tree chopped down and hauled away.

Respondents challenge the settlement as
constitutionally infirm frqm the start. The presently

3

harmed named plaintiffs, with the active
participation of the district court, bargained away
not only their own rights to seek damages in a jury
trial, but also the rights of unknown and unaware
class members who would not manifest any symptom
of disease until sometime in the future. As to the
members of that “futures. class,” including
Respondents, the right to trial by jury was not
“preserved” as commanded by the Seventh
Amendment. The historical background of that
amendment demonstrates the importance of jury
trial as a fundamental right. Its denial entitled
Respondents to collaterally attack the prior
settlement and pursue their legal remedies.

Petitioners also err in their contention that, if
collateral attack is permitted, it must ignore the
decisions of this Court, rendered after the class was
certified and the settlement approved, regarding the
due process requirement of adequacy of
representation of absent class members. This Court

~has made clear that its decisions must be applied

retrospectively to actions taken prior to the date of
those decisions. In civil actions, this rule applies to
collateral attacks as well as direct appellate review.

2. Judgments that are obtained in violation of due
process are clearly subject to collateral attack. In the
context of class actions, due process requires that
absent members be given meaningful notice, that
named representatives adequately represent the
interests of absent members at all times, and, where
claims are for money damages, that class members
be afforded the opportunity to opt out of the class.

The class action proceedings in this case failed
to satisfy any of the three essential due process
requirements. More broadly, a class that is

4

structured to include the personal injury claims of a
large number of unknown persons who may manifest
injury sometime in the future, cannot satisfy the
requirements of due process using the procedures
adopted here.

The problems of giving notice to a class of
unknown persons who are themselves unaware that
they are “injured” are insurmountable. Class
representatives and class counsel cannot represent
both presently harmed claimants and future victims
due to their inherently conflicting interests.
Providing the opportunity to opt out is a meaningless
gesture for a class member who may manifest some
injury sometime in the future. Inherently, members
of a futures class lack the crucial information that is
essential to making a knowing and intelligent
decision whether to opt out of the settlement.

3. Preserving the due process and Seventh
Amendment rights of future injury victims need not
destroy the usefulness of class-actions in addressing
the challenges of mass torts. Provision in the
settlement for a delayed opt-out —- by which a
member of a futures class can choose between the
settlement plan and a tort remedy — places future
victims in greater parity with class members with
present harms and ameliorates the conflicts of
interest between the classes. Also referred to as a
“back-end opt-out,” this procedural device is feasible
and has gained support among some courts and
commentators. It should be employed in class action
settlements such as this case to protect the due
process rights of a class of unknown and unknowable
future victims of mass torts.

ARGUMENT

I. THE SETTLEMENT OBTAINED IN VIOLATION
OF THE FUNDAMENTAL CONSTITUTIONAL
RIGHTS OF FUTURE VICTIMS OF AGENT
ORANGE IS SUBJECT TO COLLATERAL
ATTACK.

Daniel Stephenson and Joe Isaacson, while
serving their country in Vietnam, were exposed to
Agent Orange. In 1996, Isaacson was diagnosed with
non-Hodgkin’s lymphoma; Stephenson was
diagnosed with multiple myeloma, a bone marrow
cancer, in 1998. Both diseases are associated with

exposure to Agent Orange.”

2 The district court’s rulings were colored by the court’s firm
belief that the veterans’ suits were “so weak as to be virtually
baseless,” Pet. at 3, based on extant studies that there was no
evidence of “a causal connection between exposure to Agent
Orange and the serious adverse health effects claimed by
plaintiffs.” In re Agent Orange Prod. Liab. Litig., 611 F. Supp.
1223, 1231 (E.D.N.Y. 1985). See also, In re Agent Orange Prod.
Liab. Litig., 597 F. Supp. 740, 782-83 (E.D.N.Y. 1984) (same).

That belief, given the long latency period of cancers and
some other diseases, proved premature. The National Academy
of Sciences, at the direction of Congress, undertook an ongoing
study of the health effects in veterans who were exposed to
Agent Orange. See Pub. L. No. 102-4 (1991). The peer-reviewed
study concluded that there is positive evidence of causation of
three types of cancer, including non-Hodgkin’s lymphoma.
There is also evidence of a limited association between Agent
Orange and multiple myeloma. National Academy of Sciences,
Institute of Medicine, “Veterans and Agent Orange: Health
Effects of Herbicides Used in Vietnam (1994), excerpted in Joint
Appendix at 319. Full text available online at
nttp://books.r du/boo! 9048877/htmVindex.html, along

6

Most Americans in similar circumstances are
entitled to seek legal redress in court and present
their case before a jury to hold the manufacturers
accountable. Those rights are guaranteed by the
Constitution that soldiers fight to defend. Early in
our nation’s history, Chief Justice Marshall declared:

[T]he very essence of civil liberty certainly
consists in the right of every individual to claim
the protection of the laws, whenever he receives
an injury. One of the first duties of government
is to afford that protection.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803).

The district court in this case, however,
delivered more tragic news to Stephenson and
Isaacson. Their constitutional rights had been
bargained away, years before either had any
symptom of disease, in a private deal between
lawyers representing victims of Agent Orange and
the herbicide’s manufacturers. With the district
court’s approval, they traded the constitutional
rights not only of those suffering in 1984 from
diseases allegedly linked to Agent Orange — who
were given a choice to opt out — but also the rights of
all veterans who would develop diseases in the
future. In exchange, they received a settlement that
the lower court characterized as “essentially a
payment of nuisance value.” In re Agent Orange
Product Liab. Litig., 818 F.2d 145, 151 (2-4 Cir.
1987).

Because the settlement violated Respondents’
fundamental constitutional rights, the court of
appeals correctly permitted Stephenson and Isaacson
to collaterally attack the judgment so they could

7

assert their constitutional rights to seek legal
redress.

A. The Settlement Was Obtained In
Violation of the Constitutional Right To
Trial By Jury of Future Victims.

Petitioners mischaracterize Respondents’
challenge to the Agent Orange settlement as simple
disappointment that, “as matters turned out, they
did not receive benefits from the settlement as great
as those received by certain other class members.”
Pet at 2. Petitioners’ primary argument is that
“after-the-fact dissatisfaction with the outcome of
litigation” cannot justify a collateral attack on the
judgment, and that “parties do not get a second bite
at the apple simply because they are unhappy about
how the judgment played out over time.” Pet. at 22.

Of course, when Stephenson and Isaacson
were first diagnosed with cancer, the apples had all
been eaten and the tree chopped down and hauled
away.

Their challenge is that the settlement was
constitutionally infirm from the _ start and
“compromise[d] their Seventh Amendment rights
without their consent.” Ortiz v. Fibreboard Corp.,
527 U.S. 815, 846 (1999). Petitioners rely on this
Cour‘t’s decision in Kremer v. Chemical Construction
Corp., 456 U.S. 461 (1982) that a litigant may not
seek a redetermination of the merits of a legal claim
that has been decided by a court of competent
jurisdiction. See Pet. at 20. However, the Court also
made clear that courts “may not grant preclusive
effect . . . to a constitutionally infirm judgment.” 527
U.S. at 482.

8

The importance of trial by jury as a
fundamental right must not be undervalued if it is to
be “preserved,” as commanded by the Founders. ?

Sadly, Americans’ right to trial by jury has
suffered a “gradual process of judicial erosion.”
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 339
(1979) (Rehnquist, C.J., dissenting). At times the
jury 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).

A war was fought, and soldiers’ lives were lost,
to win this right. The American colonists treasured
the jury as essential to democratic self-government
and a check against oppression. They admired the
heroism of Edward Bushnell and the other jurors
who refused to convict Quaker William Penn in 1670,
though the jurors were harassed, fined, and jailed by
the trial judge. See John Guinther, THE JURY IN
AMERICA ch. 1 (1988).

They rejoiced when a jury in 1688 acquitted
seven Anglican bishops of seditious libel for opposing
James II. The case confirmed their view of the jury
“as a bulwark of liberty, as a means of preventing
oppression by the Crown.” Austin Scott, Trial by

3 In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury
shal] 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.

U.S. Const., amend vii.

9

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.” Jd.

They cheered the jury verdicts — including
large punitive damage awards - in civil suits by
John Wilkes and his printer against officials who
conducted an illegal search in their effort to suppress
Wilkes’ criticism of the government. Wilkes v. Wood,
Lotft 1, 98 Eng. Rep. 489 (K.B. 1763), and Huckle v.
Money, 2 Wils. 205, 95 Eng.Rep. 768 (C.P. 1763).
Wilkes’ case was “a matter of keen interest in the
American colonies.” Landsman, supra, at 591, and
“was probably the most famous case in late
eighteenth century America, period.” Akhil Reed
Amar, Fourth Amendment First Principles, 107
Harv. L. Rev. 757, 772 (1994).

Among grievances the colonists lodged against
King George III in the Declaration of Independence
was: “For depriving us in many cases, of the benefits
of Trial by Jury.”

When the Constitutional Convention finished
its work without an express guarantee of the right to
trial by jury in civil cases, the omission very nearly
doomed ratification of the entire constitution. Edith
Guild Henderson, The Background of the Seventh
Amendment, 80 Harv. L. Rev. 289, 295-98 (1966).
Charles W. Wolfram, The Constitutional History of
the Seventh Amendment, 57 Minn. L. Rev. 639, 672
n.89 (1973). Ultimately, as Justice Story recounts,
the Federalists’ agreement to adopt a Bill of Rights
that included a guarantee of jury trials in civil cases,

‘won support for the new constitution. Parsons v.

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

10

Mindful of this history, this Court has
repeatedly emphasized:
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.

Dimick 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.”
Terry, supra, at 565.

The rights of Stephenson and Isaacson, who
had no meaningful opportunity to opt out of the
settlement nor to exercise a knowing and intelligent
waiver, were not “preserved.”

Petitioners respond that without the authority
to bind all class members, defendants will not enter
into such global settlements, depriving the public of
the efficiencies of such arrangements. Pet. at 38-40.

Administrative efficiency, though laudable,
does not trump the Seventh Amendment. The Court
emphasized this point in holding that Congress may
not transfer legal claims from Article III courts to
non-jury bankruptcy tribunals:

It may be that providing jury trials in some
fraudulent conveyance actions . . . would impede
the swift resolution of bankruptcy proceedings
and increase the expense of Chapter 11
reorganizations. But ‘these considerations are
insufficient to overcome the clear command of
the Seventh Amendment.’ :

ee Se

11

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 63

(1989), quoting Curtis v. Loether, 415 U.S. 189, 198
(1974).

As then-Justice Rehnquist once observed:

[NJo 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 .. .

[T}he 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 U.S. 322, 346
(1979) (Rehnquist, C.J., dissenting).

B. The Principles Set Forth By This Court
In Amchem and Ortiz are applicable to
this Settlement |

Anticipating that this Court may uphold the
court of appeals in allowing collateral attack on the
settlement, Petitioners present a second question. In
determining whether the settlement meets the due
process requirement of adequacy of representation
under Phillips Petroleum Co. v. Shutts, 472 U.S. 797
(1985), Petitioners contend the court may not apply
the principles enunciated by this Court in Amchem
Products, Inc. v. Windsor, 521 U.S. 591 (1997), and
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). Pet.
at 46-50. Rather, Petitioners argue the Court must

12,

limit itself to case law existing at the time of class
certification and settlement in 1983-84. Pet. at 46.4

This Court has clearly mandated:

When this Court applies a rule of federal law to
the parties before it, that rule is the controlling
interpretation of federal law and must be given
full retroactive effect in all cases still open on
direct review and as to all events, regardless of
whether such events predate or postdate our
announcement of the rule.

Harper v. Virginia Dep’t of Transp., 509 U.S. 86, 97
(1993).

Petitioners place great emphasis on the
Court’s qualification “still open on direct review.” Pet.
at 24 n.5. The Court explained, however, that this
proviso was animated by “our view of retroactivity in
the criminal context.” 509 U.S. at 97. The Court
referred to Justice Souter’s plurality opinion in
James B. Beam Distilling Co. v. Georgia, 501 US.
529, 541 (1991), stating that, although “new rules
must apply retroactively to all criminal cases
pending on direct review, we have since concluded
that new rules will not relate back to convictions
challenged on habeas corpus.” Id. at 540. That
distinction, Justice Souter stated, does not apply “in
the civil arena.” Jd. Consistent with that view, the
Court in Harper held, without qualification, “we now
prohibit the erection of selective temporal barriers to
the application of federal law in noncriminal cases.”
509 U.S. at 97. For that reason, Petitioners’ heavy
reliance on habeas corpus decisions, see Pet. at 48 &
49. n.13, is inapposite.

4 Presumably, Petitioners also reject the application of this Court’s
1985 decision in Shutts.

13

Petitioners’ reliance on this Court’s sensible
rule that “once suit is barred by res judicata... a
new rule cannot reopen the door already closed.” Pet.
at 24 n.5, quoting James B. Beam Distilling Co. v.
Georgia, 501 U.S. 529, 541 (1991) (opinion of Souter,
J.), is similarly misplaced. Where a party is not
barred by res judicata by virtue of the due process
clause and may therefore collaterally attack a prior
judgment, that attack is governed by the current
decisions of this Court.

It is difficult to discern any principled basis for
rejecting this rule in this instance. Petitioners
certainly cannot claim to have relied on settled law
permitting class litigants to extinguish the
constitutional rights of unknown future victims.

The 1966 Advisory Committee expressed
doubt that class actions were appropriate at all in
mass accident cases. See Ortiz, 527 U.S. at n.20. As
one scholar has pointed out, the Agent Orange
settlement and the asbestos settlements involved in
Amchem and Ortiz are the only global settlements of
mass tort class actions involving large numbers of
unknown future victims. John C. Coffee, Jr., Class
Wars: The Dilemma of the Mass Tort Class Action, 95
Colum. L. Rev. 1343, 1451-52 (1995).

Nor can it be argued that this Court’s holding
— that the Rules Enabling Act precludes a court from
applying Rule 23 in a manner that violates the jury
rights of future victims — erected a new principle of
law. The right to trial by jury, as described above, is
deeply rooted in our historical tradition. Moreover, at
the time this settlement was crafted, the Rules
Enabling Act provided that the rules of civil
procedure

14

shall not abridge, enlarge or modify any
substantive right and shall preserve the right of
trial by jury as at common law and as declared
by the Seventh Amendment to the Constitution.

28 U.S.C. § 2072 (1958 ed.) (emphasis added).®

The Due Process guarantee is flexible, but it
does not “shift and spring” in and out of existence
according to the settlement calendars of the district

courts. Cf. Harper, supra, at 97.

Il. A CLAss ACTION THAT PURPORTS TO
INCLUDE THOSE WHO WILL SUFFER
COMPENSABLE PERSONAL INJURY ONLY IN
THE FUTURE IS STRUCTURALLY AND
PROCEDURALLY INCAPABLE OF AFFORDING
THOSE VICTIMS DUE PROCESS.

Despite their strenuous argument concerning
the importance of res judicata and finality,
Petitioners admit, as they must, that “lo]f course,
any judgment may be attacked if enforcing it would
violate due process.” Pet. at 26. Petitioners further
state that, looking at the procedures used, not the
result obtained in an individual case, id. at 30-31,
“this Court is justified in saying that there has been
a failure of due process only in those cases where it
cannot be said that the procedure adopted fairly
insures the protection of the interests of absent

5 The Rules Enabling Act was amended in 1988, and the
specific reference to the jury right was omitted. The clause
apparently was deemed superfluous; Congress could not and
did not authorize rules of procedure that violate the Seventh
Amendment. “[T]he Constitution needs no statute to remind us
that neither a rule nor a statute can upset a constitutional
requirement.” David D. Siegel, Commentary on 1988 and 1990
Amendments, reprinted in 28 U.S.C.A. § 2072 (1991).

15

parties who are to be bound by [the judgment].” Jd.

at 26, quoting Hansberry v. Lee, 311 US.
(1940). aii

This is exactly that case.

This Court set forth the minimum procedural
due process requirements necessary if res judicata is
to bind an absent class action plaintiff:

If the forum State wishes to bind an absent
plaintiff concerning a claim for money damages
or similar relief at law, it must provide minimal
procedural due process protection. The plaintiff
must receive notice plus an opportunity to be
heard and participate in the litigation, . . . The
notice must be the best practicable, “reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency of the
action and afford them an opportunity to present
their objections.” The notice should describe the
action and the plaintiffs’ rights in it.
Additionally, we hold that due process requires
at a minimum that an absent plaintiff be
provided with an opportunity to remove himself
from the class by executing and returning an "opt
out” or “request for exclusion" form to the court.
Finally, the Due Process Clause of course
requires that the named plaintiff at all times
adequately represent the interests of the absent
class members.

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-
12 (1985) (citations omitted).

ATLA submits that the class action settlement
in this case failed to satisfy any of these three
procedural safeguards. Indeed, by certifying a class
that purports to adjudicate the personal injury
claims of a large number of unknown persons who
may develop some disease at some time in the future,

16

the court made it structurally impossible for the
procedures adopted to satisfy minimum due process
requirements.

A. Meaningful Notice Cannot Be Provided
To. Unknown Future Personal Injury
Victims.

In ordinary litigation, failure to provide notice
and an opportunity to be heard renders a judgment
vulnerable to collateral attack. See, e.g., Griffin v.
Griffin, 327 U.S. 220, 228 (1946) ("Because of the
flack of notice], and to the extent that petitioner was
thus deprived of an opportunity to raise defenses .. .
there was a want of judicial du2 process, and hence
want of that jurisdiction over the person of petitioner
prerequisite to the rendition of a judgment in
personam against him.”). The Court’s Shutts opinion,
quoted above, makes clear that the same rule applies
in class actions. See eg., Richards v. Jefferson
County, 517 U.S. 793, 798 (1996), in which a
unanimous Court held that it violated due process to
bind plaintiffs by a prior judgment of which they had
inadequate notice. Justice Stevens wrote, “We have
long held, however, that extreme applications of the
doctrine of res judicata may be inconsistent with a
federal right that is ‘fundamental in character.” Id.
at 797. See generally, Patrick Woolley, Rethinking
the Adequacy of Adequate Representation, 75 Tex. L.
Rev. 571 (1997).

The inherent difficulties of conveying
meaningful notice to large numbers of unknown,
exposure-only class members are immediately
apparent. There is no reliable assurance that notices
and media announcements actually reach a
substantial portion of the class. Even more
problematic is the fact that, by definition, the

17

members of the class have no symptoms of disease.
Many are likely to disregard notices they assume are
inapplicable to them:

Finally, as a means of apprising such healthy
class members of their opportunity to be heard and
participate in the proceedings, notice at this time is a
meaningless gesture. Basic information that is
crucial and typically available at the time a
plaintiffs cause of action accrues — the nature and
seriousness of the disease, the medical and other
costs it will entail, its impact on plaintiffs life and
livelihood — is lacking.

The lower court in the Amchem settlement
litigation found that these obstacles to providing
adequate notice to future’ victims were
“insurmountable.” Georgine v. Amchem Products,
Inc., 83 F.3d 610, 633 (1996). Accord, Roger C.
Cramton, Individualized Justice, Mass Torts, and
“Settlement Class Actions”: An Introduction, 80
Cornell L. Rev. 811, 828 (1995). Although this Court
was not required to rule on that issue definitively,
Justice Ginsberg, for the Court, recognized “the
gravity of the question whether class action notice
sufficient under the Constitution and Rule 23 could
ever be given to legions so unselfconscious and
amorphous.” Amchem, 521 U.S. at 628.

ATLA submits that notice to such a class is an
empty exercise. This Court has warned, “when notice
is a person’s due, process which is a mere gesture is
not due process.” Mullane v. Central Hanover Bank
& Trust Co., 339 U.S. 306, 314-15 (1950).

B. Named Representatives Cannot Provide
Adequate Representation of Future
Personal Injury Victims.

18

Petitioners concede that it “is, to be sure, a
fundamental tenet of due process that a party may
not be bound by a judgment in a representative suit
if he or she was not ‘adequately represented’ in the
proceedings leading to that judgment.” Pet at 26.
This Court has consistently so held. See, e.g.,
Richards v. Jefferson County, 517 U.S. 793, 794
(1996); Shutts, 472 U.S. at 812; Hansberry, 311 US.
at 41-42.

As this Court made clear in both Amchem and
Ortiz, a class that includes both presently injured
plaintiffs and those who will manifest harm only in
the future is riven by inherently conflicting interests.
Those conflicts make it impossible for the named
representatives and counsel for the entire class to
provide adequate representation to the members of
the futures class. Amchem, 521 U.S. at 625-28; Ortiz,
527 U.S. at 853.

This conflict is starkly exemplified in this
case. The district court initially ruled that
representation was adequate, and the court of
appeals affirmed based almost entirely on “the
centrality of the military contractor defense,” which
applied to all class members equally, in the class
trial, following which individual issues, such as
damages, “were to be left to individual trials.” Jn Re
Agent Orange Product Liab. Litig., 818 F.2d 145, 150
& 164-65 (2nd Cir. 1987), cert. denied, 484 U.S. 1004
(1988).

When Petitioners agreed to a settlement,
offering a fund of $180 million to be distributed
among the class, the sole basis for that finding of
adequate representation vanished. The district court
itself indicated that its distribution plan involved a
zero sum game in which funds allocated to future

19

claimants necessarily diminished funds available to
those presently injured. Pet. at 9. The court’s
distribution plan provided that those manifesting
injury after Dec. 31, 1994 would receive nothing,
expressly to provide greater compensation “to acutely
ill veterans who were most in need of assistance.”
Pet. at 10. The court was aware that at least some
members of the class would be denied compensation,
though the court was hopeful that “almost all valid
claims will be revealed before that time.” Ryan v.
Dow Chemical Co., 781 F. Supp. 902, 919 (E.D.N.Y.
1991). All the named class representatives were
presently injured claimants. Pet. at 9. Quite
obviously, there was not adequate representation —
more precisely, there was no representation — of the
interests of later-injured class members like
Stephenson —_ and Isaacson. The named
representatives did not adequately represent the
absent class members “at all times.” Hansberry v.
Lee, 311 U.S. at 43; Shutts, 472 U.S. at 812.
(emphasis added).

Petitioners’ response is two-fold. First, they
assert that Stephenson and Isaacson were required
to raise any objection to representation at the
proceeding itself or on direct appeal. Having made an
actual determination that representation was
adequate, that determination precludes any attack
in another court. Pet at 26 & 32.

Petitioners ignore the well-settled rule, as
stated by Justice Rehnquist for the Court in Shutts,
that “a court adjudicating a dispute may not be able
to predetermine the res judicata effect of its own
judgment.” 472 U.S. at 895. This rule is equally well-
established in the context of class actions.

20

Where a person is not a party to a class action,
the judgment therein has conclusive effect
against him only if his interests were adequately
represented. ... [A] person as to whom a class
action is ineffective is not required to seek relief
during the continuance of the action.

Restatement of Judgments § 116 comment b, at 563-
64 (1942) (emphasis added).

In the absence of minimum contacts with the
forum, a court cannot constitutionally compel an
absent class member to appear and raise objections
to the adequacy of representation. Nor does Rule 23
compel him to do so. Indeed, “an absent class-action
plaintiff is not required to do anything.” Shutts, 472
U.S. at 510. See generally, Patrick Woolley, The
Availability Of Collateral Attack For Inadequate
Representation In Class Suits, 79 Tex. L. Rev. 383
(2000).

The Advisory Committee’s Note accompanying
the 1966 amendment to Rule 23 confirms that

[The Rule] does not disturb the recognized
principle that the court conducting the [class]
action cannot predetermine the res judicata
effect of the judgment; this can be tested only in
a subsequent action.

Petitioners’ second argument is that for the
district court to have created subclasses and
designated representatives of future victims would
have added little to their protection, because all
parties shared the same “veil of ignorance” as to who
would develop what disease in the future. Pet. at 23.
In this, Petitioners may be correct. If so, however,
they make it all the clearer that the structure of the
class in this case made impossible for the procedures

nan

21

adopted to afford minimal due process protection to
the class of future victims.

C. Future Personal Injury Victims Cannot
Be Provided With A Meaningful
Opportunity At Settlement To Opt Out.

The third essential requirement of due process
is satisfied by “affording absent class members,
whose claims for money damages would be entitled
to a jury trial an opportunity to remove himself from
the class.” Phillips Petroleum v. 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, 511 U.S. 117 (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.”).

The right to opt-out of the class action serves
both the command of the Seventh Amendment and
“our ‘deep- rooted historic tradition that everyone
should have his own day in court,” Ortiz, 527 U.S. at
846, quoting Martin v. Wilks, 490 U.S. 755, 762
(1989).

Tort victims in particular have a “vital
interest” in having some measure of control over
litigation that may affect their lives. Yandle v. PPG
Indus. Inc., 65 F.R.D. 566, 572 (E.D. Tex. 1974);
Causey v. Pan Am World Airways, Inc., 66 F.R.D.
392, 299 (E.D. Va. 1975); Hobbs v. Northeast
Airlines, 50 F.R.D. 76, 79 (E.D. Pa. 1970); Robert G.
Bone, Rethinking the “Day in Court” Ideal and
Nonparty Preclusion, 67 N.Y.U. L. Rev 193, 286-87
(1992). See also Roger H. Trangsrud, Mass Trials in
Mass Tort Cases: A Dissent, 1989 U. Ill. L. Rev. 69,
74 (“the right to control personally the cuit whereby

22

a badly injured person seeks redress from the alleged
tortfeasor has long been valued both here and in
England.”).

Indeed, the district court in this case found in
the course of listening to veterans and their families
during the fairness hearings that, “[mjany veterans
who opposed the settlement did so because they
wanted their ‘day in court.” In re Agent Orange
Product Liab. Litig, 597 F. Supp. 740, 770 (E.D.N.Y.
1984).

Yet, if the court of appeals decision is
reversed, veterans like Stephenson and Isaacson who
develop disease after the prescribed opt-out period
will find their causes of action have been
“kidnapped,” and they have been “deprived of any
freedom of action by being drawn involuntarily into
collective litigation.” Roger oC. Cramton,
Individualized Justice, Mass Torts, and “Settlement
Class Actions”: An Introduction, 80 Cornell L. Rev.
811, 821 (1995).

The very structure of a class action that
purports to include unknown future victims makes it
impossible for the opt-out procedure to protect due
process. In Professor Coffee’s view, “a future claims
class action trivializes the right to opt out.” John C.
Coffee, Jr., Class Wars: The Dilemma of the Mass
Tort Class Action, 95 Colum. L. Rev. 1343, 1446
(1995).

The obstacles to notifying -and informing
future victims of their opt-out rights are, as
described earlier, insurmountable. See Part II., A,
above.

More importantly, one who has not manifested
any present injury, even if notified, lacks the basic

i

23

information needed to make an intelligent decision
whether to remain in the class or to pursue a tort
action that has not, and might not accrue. See Brian
Wolfman and Alan B. Morrison, Representing The
Unrepresented In Class Actions Seeking Monetary
Relief, 71 N.Y.U. L. Rev. 439, 451-55 (1996). Earlier
in this litigation, the appellate court candidly stated
that providing an opt-out right to a person “unaware
of an injury would probably do no good.” In re "Agent
Orange" Prod. Liab. Litig., 996 F.2d 1425, 1435 (2d
Cir. 1993), cert. denied, 510 U.S. 1140 (1994).

A leading scholar in the field of class actions
pointedly agrees:

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 right within a court-designated period of time
. is of no beneficial use.
1 Herbert B. Newberg, CLASS ACTIONS § 1.23 at 1-55
(1992).

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 can become time-
barred even before any harm occurred or became
manifest. The harsh rule was famously lampooned
by Judge Frank in Dincher v. Marlin Firearms Co.,
198 F.2d 821, 823 (2d Cir. 1952) (“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 . . .”). Nearly every jurisdiction has
rejected this harsh result in favor of a “discovery
rule,” under which the limitations period does not
begin to run until the person knows or should have

24

known of his or her injury. See, eg., Urie v.
Thompson, 337 U.S. 163 (1949). Nor is it fair, ATLA
submits, to strip victims of cancer or other long-
latency diseases of the right to legal redress and a
jury trial for failing to opt out of a class action long
before they could have known of their injury.

* * *

In sum, a class action that purports to
extinguish the jury rights of unknown class members
who will manifest injury in the future cannot provide
those class members with the essential procedural
guarantees of due process. They cannot be bound by
the judgment and the court of appeals correctly held
that they may vindicate their rights by collateral
attack.

III.CLASS ACTION SETTLEMENTS THAT
INCLUDE FUTURE PERSONAL INJURY
CLAIMANTS CAN PROTECT DUE PROCESS
RIGHTS BY PROVIDING A DELAYED OPT-
OUT.

Petitioners expend a great deal of energy and
ink warning that affirmance of the court of appeals
decision will rob the civil justice system and the
public of the benefits of global settlements of mass
tort litigation. See, e.g., Pet. at 39-40.

As noted earlier, class actions involving large
numbers of exposure-only class members who may
develop disease in the future have been rare. Nor
may courts exceed their authority under the Rules
Enabling Act and violate the constitutional rights of
absent class members in pursuit of administrative
convenience and efficiency.

—<

25

Most importantly, however, protecting the
constitutional rights of future injury victims need not
lead to a “class action mechanism sapped of much of
its utility” Pet. at 18. The previous analogy to the
discovery rule suggests that class action settlements
such as this one can be made consistent with due
process and the Seventh Amendment.

ATLA suggests that class actions involving
exposure-only class members can safeguard the due
process rights of those class members by providing a
delayed opt-out as part of the settlement plan. In its
simplest form, the opt-out provision is triggered
when a member of the futures class develops a
disease or harm covered by the settlement plan. At
that point, his or her cause of action accrues and the
statute of limitations begins to run. Within that
period, the plaintiff is offered a choice: accept the
compensation offered by the settlement plan or
pursue a legal remedy in court.

Such a procedural device, often referred to as a
back-end opt-out, minimizes the adverse effects of
the time factor. It places those who manifest harms
years after approval of the settlement in close parity
with those who were members of the presently
injured class. It also serves as a check against the
inherent “tug” in favor of the presently injured at the
expense of futures. Amchem at 521 U.S. at 626. A
settling defendant desirous of avoiding a stream of
post-settlement lawsuits has an interest in assuring
that the settlement provisions are sufficiently
generous to future victims that they, like the
presently injured, will waive their tort remedy in
favor of participating in the settlement.

These advantages have persuaded a number of
commentators to recommend the use of a delayed

26

opt-out as a means of preserving the rights of future
claimants. See Brian Wolfman and Alan B. Morrison,
Representing The Unrepresented In Class Actions
Seeking Monetary Relief, 71 N.Y.U. L. Rev. 439, 478
(1996); John C. Coffee, Jr., Class Wars: The Dilemma
of the Mass Tort Class Action, 95 Colum. L. Rev.
1343, 1448-52 (1995); Peter H. Schuck, Mass Torts:
An Institutional Evolutionist Perspective, 80 Cornell
L. Rev. 941, 964-68 (1995). Roger C. Cramton,
Individualized Justice, Mass Torts, and “Settlement
Class Actions,” 80 Cornell L. Rev. 811, 836 (1995).

Use of such a procedural device to protect the
due process rights of a futures class is not simply
feasible; it has been put to use. 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. A class action settlement on behalf of women
injured by the Dalkon Shield contraceptive device
also included a back-end opt-out. In re A.H. Robins
Co., Inc., 880 F.2d 709, 745 (4th Cir.), cert. denied,
493 U.S. 959 (1989). A back-end opt-out was
similarly provided in the settlement agreement
resolving claims by users of the prescription drug
combination known as “fen-phen.” Jn re Diet Drugs
Products Liab. Litig., 2000 WL 1222042 (E.D.Pa.
2000), at *21.

The settlement at issue in Ortiz purported to
include such an opt-out. However, the option was so
qualified and restricted that it offered no true
recourse to the tort system. 527 U.S. at 847 & n.23.

27

This Court suggests, however, that an unrestricted
delayed opt-out would provide sufficient due process
protections for “the legal rights of absent class

members . . . who by definition may be unidentifiable
when the class is certified.” Jd.

CONCLUSION

For the above reasons, the decision of the court
of appeals should be affirmed.

Respectfully submitted,

Jeffrey Robert White

1050 31st St., N.W.
Washington, DC 20007

(202) 965-3500

ATLA Senior Amicus Counsel

Counsel of Record
January 24, 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0593%3A14. Public record. Not legal advice.