Amicus Curiae Brief — Mobil Corp. v. Adkins

“QTION FILED (q)

AUG 2 8 2002

No. 02-132 .

|

Supreme Court of the Gnited States

MOBIL CORPORATION AND HONEYWELL

INTERNATIONAL INC.,

Petitioners,

Vv.

BRUCE W. ADKINS, ef al.,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of Appeals

of West Virginia

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF OF AMICUS CURIAE

THE ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF PETITIONERS

LOUIS P. WARCHOT CARTER G. PHILLIPS*

DANIEL SAPHIRE STEPHEN B. KINNAIRD

ASSOCIATION OF AMERICAN JAY T. JORGENSEN

RAILROADS SIDLEY AUSTIN BROWN &

Law Department WOOD LLP

50 F Street, N.W. 1501 K Street, N.W.

Washington, D.C. 20001-1564 Washington, D.C. 20005

(202) 639-2505 (202) 736-8000

Counsel for the Association of American Railroads

August 28, 2002 * Counsel of Record

inne TORRE UREN: “ek cere RSE mn oS

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

31 pp

IN THE

Supreme Court of the Anited States

No. 02-132

MOBIL CORPORATION AND HONEYWELL

INTERNATIONAL INC.,

Petitioners,

V.

BRUCE W. ADKINS, ef al.,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of Appeals

of West Virginia

MOTION OF THE ASSOCIATION OF AMERICAN

RAILROADS FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Amicus curiae the Association of American Railroads

(“AAR”) respectfully requests leave of this Court to file the

following brief in the above captioned matter. In support of

its motion, AAR states as follows:

1. The petitioners have granted their consent in writing to

the filing of this brief. Petitioners’ written consent has been

previously filed with the Court. However, respondents have

categorically denied consent to all amici curiae, thus

necessitating this motion. Respondents’ written objections

have also been previously filed with the Court. ;

2. AAR is an incorporated, nonprofit trade association

representing the nation’s major freight railroads and Amtrak.

AAR’s members operate approximately 75 percent of the rail

2

industry’s line haul mileage, produce 93 percent of its freight

revenues, and employ 91 percent of rail employees. In

matters of significant interest to its members, AAR frequently

appears before Congress, administrative agencies, and the

courts on behalf of the railroad industry.

3. The constitutionality of West Virginia’s special mass

litigation rule, Trial Court Rule 26.01, see Pet. App. 36a-39a,

is a matter of substantial concern to the AAR because a

number of railroads are subject under the rule to mass trials in

the West Virginia courts. Norfolk Southern Railway, Co.

(“Norfolk Southern”), CSX Transportation, Inc. (“CSX”),

Consolidated Rail Corporation, and American Premier

Underwriters, Inc. (formerly known as Penn Central

Corporation) have been named as defendants in more than

5,592 asbestos cases brought in the West Virginia state courts

under the Federal Employer's Liability Act (“FELA”), 45

U.S.C. §§ 51-60. See, e.g., Norfolk S. Ry. v. Chief Justice

Warren R. McGraw, Civ. No. 2:01-1238, slip op. at 2

(S.D.W. Va. Aug. 12, 1999) (Memorandum Order). Because

special considerations apply to FELA claims, which arise

under federal law, these railroads will not be part of the same

mass trial groups as petitioners Mobil Corporation and

Honeywell International, Inc., who have been sued under

various state-law theories. Nevertheless, the West Virginia

courts have lumped the railroad FELA cases into their own

mass trial group under Rule 26.01. See State ex rel. Allman v.

MacQueen, 551 S.E.2d 369, 377 (W. Va. 2001) (per curiam)

(using FELA cases as an example of the mass asbestos trial

groups contemplated under Rule 26.01); Jn re West Virginia

Asbestos Personal Injury Litig., Civ. No. 01-C-9000, slip op.

at 5 (W. Va. Cir. Ct. Kanawha County, Sep. 6, 2001) (Report

of the Honorable Martin J. Gaughn) (report of the judge

assigned to oversee the Rule 26.01’s mass asbestos trials,

stating that “it is anticipated that” trial in the railroad FELA

cases “would begin on October 29, 2002.”). Accordingly, the

3

railroads are equally subject to the unconstitutional prejudice

arising out of the inherently unfair process of mass trials.

Since Rule 26.01 was adopted, the railroads have

consistently challenged the rule’s constitutionality (as both

parties and amici) in the West Virginia state and federal

courts. See, e.g., Norfolk S. Ry. v. Chief Justice Warren R.

McGraw, Civ. No. 2:01-1238, slip op. at 2.

4. AAR believes that its familiarity with the unique status

of its members — who are defendants in the West Virginia

state courts in asbestos cases arising under federal law — will

aid in the Court’s understanding of the issues presented in the

Petition for Certiorari. In addition, railroad asbestos liability

is governed by the FELA, and the AAR believes the Court

should consider the special concerns that arise with

application of Rule 26.01 to FELA claims. 7

Respectfully submitted,

LouIs P. WARCHOT CARTER G. PHILLIPS*

DANIEL SAPHIRE STEPHEN B. KINNAIRD

ASSOCIATION OF AMERICAN JAY T. JORGENSEN

RAILROADS SIDLEY AUSTIN BROWN &

Law Department WOOD LLP

50 F Street, N.W. 1501 K Street, N.W.

Washington, D.C. 20001-1564 Washington, D.C. 20005

(202) 639-2505 (202) 736-8000

Counsel for the Association of American Railroads

August 28, 2002 * Counsel of Record

QUESTION PRESENTED

Because the cases pending in the West Virginia state courts

against members of the Association of American Railroads

arise under federal law, this brief’s discussion is limited to the

first question presented in the Petition for Certiorari.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ....... ...........:cscccssesserseeseessoees

TABLE OF AUTHORITIES. .........00:..00:.00scccssersessscnesere

INTEREST OF AMICUS CURIAE ..........::.:000:000:0s00e

REASONS FOR GRANTING THE PETITION ...........

I.

Il.

MASS AGGREGATION OF CLAIMS IS CON-

TRARY TO THIS COURT’S DUE PROCESS

AUD THE A CARIES ons ccsiscicrcsccsssoverssscsvssseveestsseses

A. Mass Trials Without Inquiry Into Commonal-

ity Of Claims Or Possible Prejudice Is

RES Rae Paediatr ear

B. Certiorari Is Warranted Because Rule 26.01

Undermines The Jury’s Ability To Make

Informed And Rational Decisions In FELA

1. Temporal And Physical Limitations On A

Court’s Ability To Hear Evidence................

2. Human Inattention, Lack Of Comprehen-

sion And Forgetfulness .......................::0:0

3. Evidentiary Spillover ....................:::::e

IMMEDIATE REVIEW IS NECESSARY TO

PREVENT FUNDAMENTALLY UNFAIR

PROCEEDINGS AND SIGNIFICANT PREJU-

DICE TO THE APPELLATE PROCESS. ............

A. Immediate Review Is Warranted Because Rule

26.01’s Mass Trial Procedure Is Structurally

14

iv

TABLE OF CONTENTS - continued

Page

B. Rule 26.01 Has The Purpose And Effect Of

Forcing Defendants To Unfairly Surrender

Their Rights Without Trial ........................0..... 15

C. Rule 26.01 Extinguishes Meaningful Appellate

SIN sncssncickintonsdisesishssepulinconislibalabinichsitmihebasiensnnen 18

Vv

TABLE OF AUTHORITIES

CASES : Page

Amchen Prods., Inc. v. Windsor, 521 U.S. 591

EIT ciiciiiecotsendesavasdsavaraenettivosiictaiaannparsoserensenes 6, 7,8

American Ry. Express Co. v. Levee, 263 U.S. 19

has iasdithd apace ca cen vo sseseccwennnintansisnyerninvsnernrsss 3

Arizona v. Fulminante, 499 U.S. 279 (1991)......... I4

Baker v. Watermann §S.S. Corp., 11 F.R.D. 440

I es WEN cas ercecstesieseisanasvesrasanvasvaxsecernerens 12, 13

Baltimore & Ohio R.R. v. Mosele, 368 N.E.2d 88

Bs EN cis oreo cn catigs cette centoap ove betoucentistinsyere 4

Blankenship v. General Motors Corp., 406 S.E.2d

I ogi Linas 16

Boddie v. Connecticut, 401 U.S. 371 (1971) ......... 14

Bower v. Westinghouse Elec. Corp., 522 S.E.2d

Ce WU NAR aasiiissrghenesessetbnncedsestinoriizen 16

Bradford v. John A. Coleman Catholic High Sch.,

488 N.Y.S.2d 105 (N.Y. App. Div. 1985).......... 13

Brown v. Western Ry. of Ala, 338 U.S. 294

PU cccssdca vc cperinnnp eaxtdb itive citge ges tty evsivitngacen~ 4

Consolidated Rail Corp. v. Gottshall, 512 U.S.

NG criiicchcenccocidusenpnvertexcovenxpuevewiervasbenvonse 4,9

Davis v. Wechsler, 263 U.S. 22 (1923) .............0. 3

Dice v. Akron, Canton _& Youngstown R.R., 342

se okt ntirce sp iatinsinasnaneseavetrnsincvenone. 4

Felder v. Casey, 487 U.S. 131 (1988)..............5. 3

In re Fibreboard Corp., 893 F.2d 706 (Sth Cir.

go nth aed Lav esns ang ders ioc pvnsrencee <pesstes- 9

Garrett v. Moore-McCormack Co., 317 U.S. 239

I ge kapcd plidnnko ps cestexantrsvestscnrinarrvdeotaessrotven-> 3,4

Johnson v. United States, 520 U.S. 461 (1997) ..... 14

Law v. General Motors Corp., 114 F.3d 908 (9th

BN ice arctconchaheticeanaanansbiinnsinsenetenendia 18

Logan v. Zimmerman Brush Co., 455 U.S. 422

I ete eave luis ts ng asandescvnlvcdysssronbsosecs 6

vi

TABLE OF AUTHORITIES - continued

Page

Malcom vy. National Gypsum Co., 995 F.2d 346

NE 106d 2 1) i onetioecacarsnontieone ae 5

Mathews v. Eldridge, 424 U.S. 319 (1976) ........... 6

McKaskle v. Wiggins, 465 U.S. 168 (1984).......... 14, 15

Monessen Southwestern Ry. v. Morgan, 486 U.S.

ss ahs card caresses date chee ascbecss racing 3,5

Norfolk S. Ry. v. Chief Justice Warren R.

McGraw, Civ. No. 2:01-1238 (S.D.W. Va.

TN Bis PE ticket incenewcass COE TPR sele ene ed 2

Norfolk & W. Ry. v. Ayers, No. 01-963 (US.

I I osc ovuceupeenwesnenvacesessonies 8

Ortiz v. Fibreboard Corp., 527 US. 815

IEE sossts casvasctcnsaienrdsbubseabansidaanstenaapeisertaoneaees 6, 7, 14

. In re Repetitive Stress Injury Litig., 11 F.3d 368

RT Ra aN Seer eee cen NC oe 5

In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293

I i Saka fas caleci i nousnicnaniinits copunniervovses 17

Smith v. Murray, 477 U.S. 527 (1986) ................. 18

State ex rel. Allman v. MacQueen, 551 S.E.2d

EW Me ein esta tsetse ccwsaproenenreeas 5

State ex rel. Appalachian Power Co. v.

MacQueen, 479 §.E.2d 300 (W. Va. 1996)........ 15

Sullivan v. Louisiana, 508 U.S. 275 (1993)....-...... 14

Urie v. Thompson, 337 U.S. 163 (1949).........00..... 4

Waller v. Georgia, 467 U.S. 39 (1984) ......00000.. 14

In re West Virginia Asbestos Personal Injury

Litig., Civ. No. 01-C-9000 (W. Va. Cir. Ct.

Kanawha County, Sep. 6, 2001) ................00.0.. 5

STATUTES

Be cinta cs mieten 4

ENE Soar eae oe be 2

Vii

TABLE OF AUTHORITIES = continued

RULES Page

| SO eS Re ee ee enron 17

ee ee eee 17

LEGISLATIVE HISTORY .

| H.R. Rep. No. 60-1386 (1908) .0.0.....cccccccceeceeee 4

|

| SCHOLARLY AUTHORITIES

Warren E. Burger, Can Juries Cope with Multi-

Month Trials?, 3 Am. J. Trial Advoc. 449

DR tins edt da keicilpusiet Ubasaecos reagan ener 11

Henry J. Friendly, Federal Jurisdiction: A

CIPI FI CI oki sce sincncncasiceneesiivtientneverss 17

Edith Greene & Elizabeth F. Loftus, When

Crimes are Joined at Trial, 9 Law & Hum.

BOY, WHE ci isscssinctsiscssncivastawedatecerencees 12

Irwin A. Horowitz et al., A Comparison of

Verdicts Obtained in Severed and Joined

| Criminal Trials, 10 J. Applied Soc. Psychol.

sits osag ons nacnireice keen ounces 12

a Irwin A. Horowitz et al. Effects of Trial

| Complexity on Decision Making, 81 J. Applied

NN Ps see ices yeh iaen a sneloniilns 12

Sarah Tanford & Steven Penrod, Biases in Trials

Involving Defendants Charged with Multiple

Offenses, 12 J. Applied Soc. Psychol. 453

ARR RIRR esd. ck gener ne aren meee ess 12

OTHER AUTHORITIES

Restatement (Third) of Torts: Apportionment of

SEES Ree nee mer NR SR DAE 16

Lewis Carroll, Alice in Wonderland (1923)........... 18

Vill

TABLE OF AUTHORITIES -— continued

Page

Special Comm. on Jury Comprehension, Jury

Comprehension in Complex Cases, A.B.A. Sec.

Re BU SI Te aaa asinine eiocereness 1]

IN THE

Supreme Court of the Gnited States

ee

No. 02-132

MOBIL CORPORATION AND HONEYWELL

INTERNATIONAL INC.,

Petitioners,

Ra

BRUCE W. ADKINS, et ai.,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of Appeals

of West Virginia

| BRIEF OF AMICUS CURIAE

| THE ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE '

The interests of the Association of American Railroads

(“AAR”) are set forth in the accompanying motion for leave

to file as amicus curiae.

REASONS FOR GRANTING THE PETITION

Petitioners have made a compelling case that Rule 26.01

violates the fundamental tenets of the Due Process Clause and

' In accordance with Supreme Court Rule 37.6, amicus AAR states that

no counsel for any party drafted this brief in whole or in part, and no

persons or entities other than AAR made any monetary contribution to its

preparation or submission.

2

conflicts with the precedents of this Court and federal courts

of appeals. The constitutional problems for defendants facing

asbestos claims under state law alone justify a grant of

certiorari, but there are also special concerns in the

application of Rule 26.01 to the adjudication of federal claims

pending against the railroads in West Virginia. Several of the

nation’s major railroads have been named as defendants in

more than 5,592 asbestos cases brought in the West Virginia

state courts under the Federal Employer's Liability Act

(“FELA”), 45 U.S.C. §§ 51-60. See Norfolk S. Ry. v. Chief

Justice Warren R. McGraw, Civ. No. 2:01-1238, slip op. at 2

(S.D.W. Va. Aug. 12, 1999) (Memorandum Order). These

concerns raised by Rule 26.01’s effect on these federal claims

underscore the need for immediate review.

Regardless of the number of defendants, any mass

aggregation of the claims of unrelated asbestos plaintiffs

under Rule 26.01 is inherently prejudicial. That prejudice is

exacerbated in the context of negligence claims for asbestos

injury arising from an employer’s failure to warn or protect

the employee, where the defense often depends on plaintiff-

specific facts and complex medical and scientific evidence.

Even apart from the patent unconstitutionality of Rule 26.01,

this Court’s FELA jurisprudence prohibits the application of

state law procedures that unduly burden federal rights and

defenses.

Moreover, given that the order denying the writ of

prohibition is final, Pet. 27, and that trials conducted under

the basic parameters of Rule 26.01 are structurally flawed and

inherently prejudicial, there is nothing to be gained from

delaying review. Because of the procedural advantages for

plaintiffs in West Virginia courts and the hospitality given to

mass occupational-exposure complaints even prior to Rule

26.01, railroads have been long forced into expensive and

often unwarranted settlements of claims brought in West

' Virginia. Under Rule 26.01, the settlement pressure to avoid

trials in which jury consideration of the evidence is

3

compromised, and appellate rights effectively extinguished,

will be immense. Lawyers representing unimpaired or

minimally impaired plaintiffs have advocated these

procedures, not for purposes of justice, but because they are

inherently unfavorable to defendants and create extreme

settlement leverage. Since West Virginia is fast becoming the

preferred forum for asbestos-related FELA claims against the

major Eastern railroads, the prejudice stemming from Rule

26.01 will have an unusually large impact on the nation’s

FELA cases unless this Court grants immediate review.

I. MASS AGGREGATION OF CLAIMS IS CON-

TRARY TO THIS COURT’S DUE PROCESS AND

FELA CASES.

A. Mass Trials Without Inquiry Into Commonality

Of Claims Or Possible Prejudice Is Unlawful.

Generally the Due Process Clause permits state courts to

apply nondiscriminatory and reasonable state-law procedures

in adjudicating federal claims. See Felder v. Casey, 487 U.S.

131, 138 (1988). “By the same token, however, where state

courts entertain a federally created cause of action, the

‘federal right cannot be defeated by the forms of local

practice.” Jd. (quoting Brown v. Western Ry. of Ala., 338

U.S. 294, 296 (1949)). In fact, this Court has frequently

intervened to prevent unreasonable local procedural rules

from defeating the valid assertion of a federal right. See, e.g.,

Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 336

(1988); Felder, 487 U.S. at 138-53; Garrett v. Moore-

McCormack Co., 317 U.S. 239, 245 (1942) (stating that,

under the Supremacy Clause, state courts have a duty “to

proceed in such manner that all the substantial rights of the

parties under controlling federal law [are] protected”).

? See also Davis v. Wechsler, 263 U.S. 22, 24 (1923) (rejecting a state

court rule that an appearance waived a railroad’s venue defense under

federal law); American Ry. Express Co. v. Levee, 263 U.S. 19, 21 (1923)

(holding that state rules regarding the burden of proof could not be applied

4

This Court’s review is particularly appropriate in this case

because thousands of the cases that are subject to Rule

26.01’s mass trials are FELA claims. Enacted in 1908, FELA

creates a federal cause of action in negligence for employees

of interstate railroad carriers injured on the job: “[e]very

common carrier by railroad ... shall be liable in damages to

any person suffering injury while he is employed by such

carrier ... for ... injur[ies}] ... resulting in whole or in part

from the [carrier’s] negligence.” 45 U.S.C. § 51; Consoli-

dated Rail Corp. v. Gottshall, 512 U.S. 532, 541-43 (1994).

The elements of a FELA cause of action are informed by

common-law principles “‘as established and applied in the

federal courts’” unless those principles are altered by FELA’s

express statutory provisions. Urie v. Thompson, 337 US.

163, 174, 182 (1949); see also Gotshall, 512 U.S. at 543-44.

This Court has exercised special vigilance to ensure that

state procedural rules (which may be applied in FELA) do not

undermine the federal right. H.R. Rep. No. 60-1386, at 3

(1908) (noting Congress’ purpose in enacting FELA was to

“create uniformity throughout the Union” with respect to the

financial responsibility of railroads for injuries to their

employees). In Garrett v. Moore-McCormack Co., this Court

said that FELA must have “a uniform application throughout

the country unaffected by local views of common law rules”

and that “[t]his uniformity requirement extends to the type of

proof necessary for judgment.” 317 U.S. at 244° In

to “narrow[] the protection that the defendant had secured” under a federal

law limiting railroad liability).

> See also Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359,

361 (1952) (“[T]he federal rights affording relief to injured railroad

employees under a federally declared standard could be defeated if states

were permitted to have the final say as to what defenses could and could

not be properly interposed to suits under [FELA].”); Brown v. Western Ry.

of Ala., 338 U.S. 294 (1949) (reversing a state court order that dismissed a

FELA claim based on local pleading requirements because of the order’s

effect on national uniformity in FELA practice); Baltimore & Ohio R.R. v.

Mosele, 368 N.E.2d 88, 96-97 (Ill. 1977).

5

accordance with this heightened focus on national uniformity,

this Court has never hesitated to review state court rules that

have attempted to streamline the state courts’ dockets at the

expense of FELA litigants. See, e.g., Monessen, 486 U'S. at

1 336.

! There can be no question that Rule 26.01 values efficiency

) over proper adjudication of FELA claims. Indeed, the West

Virginia Supreme Court justified its action in promulgating

and adopting Rule 26.01 by pointing to its perceived need to

clean out the state courts’ dockets. See State ex rel. Allman v.

MacQueen, 551 S.E.2d 369, 371 (W. Va. 2001) (per curiam).

To accomplish this judicial housecleaning, Rule 26.01 omits

any inquiry into the commonality of the facts and issues to be

decided among the plaintiffs and defendants who are to be

thrown together for a mass trial. Although such an inquiry

has traditionally been required in class actions, consolidations

and joinders to ensure that the parties are able to present a

meaningful case in a multi-party proceeding,’ the West

Virginia Supreme Court held that such traditional due process

concerns do not apply in Rule 26.01 mass trials. See id. at

374.

Importantly, Rule 26.01’s omission of a commonality

inquiry is not premised upon an assumed similarity among the

throng of plaintiffs in the thousands of state and federal

asbestos cases pending in West Virginia. To the contrary, it

is the breathtaking variety and complexity of those cases — the

factual differences relating to the parties, their injuries, legal

theories, and damages — that caused the West Virginia courts

to throw in the towel. See /n re West Virginia Asbestos

\ Personal Injury Litig., Civ. No. 01-C-9000, slip op. at 2 (W.

* See, e.g., In re Repetitive Stress Injury Litig., 11 F.3d 368, 374 (2d

Cir. 1993); Malcom v. National Gypsum Co., 995 F.2d 346, 354 (2d Cir.

1993) (“While district courts need not perform any specific rituals or

recite any incantations before ordering cases to be consolidated, they

must, in every instance, consider whether the ‘actions involv[e] a common

question of law or fact.””) (alteration in original).

isaac

6

Va. Cir. Ct. Kanawha County, Sep. 6, 2001) (Report of the

Honorable Martin J. Gaughn) (“because of the very compli-

cated intertwining of plaintiffs’ attorneys, multiple defendants

and their defense attorneys, varying exposures to asbestos and

different theories of liability, it is futile to continue to pursue

small all-issue trials”).

But the fact that West Virginia continues to attract the

nation’s asbestos cases cannot serve as a justification for

abandoning the minimum requirements of an orderly and fair

adjudication of every litigant’s claims and defenses. The

consequences of such an approach would be severe. Rule

26.01’s lack of any meaningful commonality inquiry

practically guarantees that the mass trials conducted under the

rule will exceed the limitations of the trial court’s resources

and the jury’s ability to comprehend the voluminous evidence

and its connection (or lack thereof) to the differing claims and

parties. In short, Rule 26.01 ensures that the most basic

requirement of due process — the right to have one’s

individual claims and defenses heard and evaluated in a

meaningful manner’ — will not be met.

The conflict between Rule 26.01’s mass trials and this

Court’s due process cases is amply demonstrated by the

Court’s recent decisions in Ortiz v. Fibreboard Corp., 527

-U.S. 815 (1999) and Amchen Prods., Inc. v. Windsor, 521

U.S. 591 (1997). In Ortiz and Amchem, this Court rejected

class-action settlements reached on behalf of two vast classes

of plaintiffs whose predominant (and perhaps only)

commonality was that they had sometime, somewhere been

exposed to some form of asbestos. See Amchem, 521 U.S. at

> See, e.g., Logan v. Zimmerman Brush Co. 455 U.S. 422, 433 (1982)

(noting that due process requires that an aggrieved party have “the

opportunity to present his case and have its merits fairly judged.”);

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental

requirement of due process is the opportunity to be heard ‘at a meaningful

time and in a meaningful manner”) (quoting Armstrong v. Manzo, 380

U.S. 545, 552 (1965)).

7

624-27. The Court based these decisions on both the textual

requirements of Federal Rule of Civil Procedure 23 and on

the inevitable due process concerns that arise when litigants

are deprived of an opportunity to have their claims and

defenses presented, either personally or through a class

representative that shares the represented parties’ interests in

the litigation. See Ortiz, 527 U.S. at 846-48; Amchem, 521

U.S. at 624-28. As this Court noted in Ortiz, it is “‘our

“deep-rooted historic tradition that everyone should have his

own day in court.””” 527 US. at 846 (quoting Martin v.

Wilks, 490 U.S. 755, 762 (1989), in turn quoting 18 C. Wright

et al, Federal Practice and Procedure § 4449, at 417 (1981)).

Rule 26.01 deprives mass-trial litigants of their traditional

“own day in court” in any meaningful sense. There can be no

pretending that hundreds or thousands of litigants with

dissimilar factual and legal claims and defenses will have an

adequate opportunity to present their evidence and argument

to a single finder of fact in any rational manner. This Court

has noted the dizzying array of differences among asbestos

plaintiffs, including the fact that they may have been:

“exposed to different asbestos-containing products, for

different amounts of time, in different ways, and over

different periods. Some ... suffer no physical injury or

have only asymptomatic pleural changes, while others

suffer from lung cancer, disabling asbestosis, or from

mesothelioma.... Each has a different history of

cigarette smoking, a factor that complicates the

causation inquiry.

“ [Non-symptomatic] plaintiffs especially share

little in common, either with each other or with the

presently injured [plaintiffs]. It is unclear whether they

will contract asbestos-related disease and, if so, what

disease each will suffer. They will also incur different

medical expenses because their monitoring and

treatment will depend on singular circumstances and

individual medical histories.”

8

Amchem, 521 U.S. at 624 (second omission in original)

(quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 626

(3d Cir. 1996)).

Those factual differences are vividly illustrated just by the

six asbestos plaintiffs in Norfolk & Western Railway v. Ayers,

No. 01-963 (U.S. granted Apr. 1, 2002), a West Virginia

FELA case in which this Court recently granted certiorari.

Those plaintiffs worked at the railroad for anywhere between

two and forty years, some as early as 1942. They all worked

in different places and in different occupations, including

office clerk, laborer, pipefitter, fireman, engine repairman,

and ballast regulator. Their claimed exposures varied widely

in intensity, constancy, and duration, with some lasting

decades and another only three months. Most plaintiffs

claimed exposure to a variety of dusts other than asbestos,

such as silica, coal, and paint dust, each of which could be an

alternative source of their claimed injuries. Three had

asbestos exposure outside of railroad employment which was

relevant to apportionment of causes. One of the plaintiffs did

not smoke, whereas others had widely variable smoking

habits which could affect the analysis of lung injury. They

had varying medical conditions — such as emphysema,

chronic bronchitis, chronic obstructive pulmonary disease,

pneumonia, cardiovascular disease, and obesity — that

affected both the diagnosis of asbestos injury, causation, and

the degree of impairment. There were days of competing

expert testimony on contested, complex medical evidence

about the meaning and implications of each plaintiff's lung x-

rays, breathing function tests, lung crackles, and medical

histories. See generally J.A. at 365-524, Norfolk & W. Ry. v.

Ayers, No. 01-963 (U.S. filed June 17, 2002).

For the most part, the factual distinctions noted in Amchem

apply across the spectrum of FELA cases, and therefore the

problems of coherently litigating a mass trial when the parties

lack commonality will dominate every FELA-based

proceeding under Rule 26.01. Moreover, for negligence

9

claims, the notion that any issue, including “fault,” can be

determined in a single trial as to a mass grouping of plaintiffs

is wrongheaded. Railroads were not manufacturers of

asbestos, but rather, used asbestos products, which they

purchased from manufacturers, in some of their operations.

While there are four defendants in the West Virginia asbestos

litigation, each of them had several predecessor railroads — all

separate, unaffiliated companies — operating during the

relevant time periods. Thus, questions related to what, if

anything, each of these railroad asbestos users might have

known of asbestos hazards, and when they had such

knowledge, are key to determining liability, and the answers

may vary from plaintiff to plaintiff.

In addition, an employer's duty of care (which is

commensurate with its ability reasonably to foresee a

particular injury, Gottshall, 512 U.S. at 538) does not exist in

the abstract; it is specific to an individual employee and

depends on the geographic, temporal and physical

characteristics of his work. In other words, whether the

railroad was negligent in failing to protect an employee from

asbestos exposure depends on the nature of the job; the nature

and intensity of the exposure; what was known at the time of

employment about asbestos risks; the balance of those known

risks against the perceived unique insulation benefits of

asbestos products in protecting workers from burns from

high-temperature equipment; and what protective measures

were available. In short, because Rule 26.01 requires FELA

plaintiffs and defendants to present their cases to the finder of

fact in concert with myriad others, each FELA litigant’s “own

day in court” will happen in nothing “more than a fictional

sense.” In re Fibreboard Corp., 893 F.2d 706, 711 (Sth Cir.

1990). This fictional right to be heard is inconsistent with this

Court’s due process jurisprudence.

10

B. Certiorari Is Warranted Because Rule 26.01

Undermines The Jury’s Ability To Make Inform-

ed And Rational Decisions In FELA Cases.

The due process limitation on joinder of factually unrelated

claims is not simply a formal construct of the law. Research

studies of the jury process support the common-sense notion

that in complex cases juries can not effectively adjudicate the

factually disparate claims of more than a handful of plaintiffs

in a given trial.

The prejudicial effects of the unprecedented mega-trials

that Rule 26.01 contemplates can be grouped into several

related categories:

1. Temporal And Physical Limitations On A

Court’s Ability To Hear Evidence

As petitioners set out in detail, the West Virginia Supreme

Court’s opinion actually contemplates asbestos trials

involving thousands of largely unrelated parties. All of these

litigants will have an independent interest and right to

participate in the trial. All litigants will rightfully want to

hear the evidence presented to the jury and to both rebut

damaging evidence and present affirmative evidence relevant

to their own claims or defenses. In short, it is not hyperbole

to say that the trial will involve a huge mob of lawyers,

witnesses and litigants.

Merely stating such a proposition unmasks the absurdity of

Rule 26.01’s approach. The proposed trial proceeding is

inherently unworkable, even from a physical and temporal

point of view. Even if the members of a jury possessed

perfect powers of reason and recall, and even if the span of

their effective attention were unlimited, they simply could not

hear and see all of the litigants and evidence in the space and

time that a court can reasonably provide for a single trial.

1]

2. Human Inattention, Lack Of Comprehension

And Forgetfulness

Jurors do not have perfect memories or analytic abilities,

and their ability effectively to absorb information diminishes

as the length and complexity of a presentation grows. In a

study of juror performance, the A.B.A. Section of Litigation

concluded that longer trials impair a jury’s ability to

comprehend the information presented. See Special Comm.

on Jury Comprehension, Jury Comprehension in Complex

Cases, A.B.A. Sec. Lit. Rep. 25, 32 (Dec. 1989) (“The

volume of the evidence received at trial has a direct impact on

the degree and quality of jury comprehension...._ In addition,

the longer the trial, the greater the risk that jurors will become

bored and that their attention will diminish.”). Chief Justice

Burger has also commented on the prejudicial effect of

complex and lengthy jury presentations. The:

common sense of the common man ... gannot be

brought to bear unless there is comprehension of the

facts and the law....

Even Jefferson would be appalled at the prospect of a

dozen of his yeomen and artisans trying to cope with

some of today’s complex litigation in trials lasting many

weeks or months. *

Warren E. Burger, Can Juries Cope with Multi-Month

Trials?, 3 Am. J. Trial Advoc. 449, 451 (1980)

3. Evidentiary Spillover

A further limitation on effective jury service in a Rule

26.01 mass trial is jurors’ documented susceptibility to

evidentiary “spillover” in lengthy, multi-party or multi-claim

trials. The “spillover effect” refers to the jury’s tendency to

apply evidence in voluminous or lengthy cases to parties

and/or claims to which the evidence does not pertain. Studies

12

have shown that this spillover effect results in higher rates of

confusion of evidence and conviction in criminal cases.°

In the context of civil litigation, research has similarly

demonstrated that while jurors are relatively adept at

allocating blameworthiness and making differentiations

among litigants in cases where the volume of evidence to be

digested in a given time is low, as the evidentiary volume

increases, the jury is less and less able to make distinctions of

blameworthiness among the parties and claims. See Irwin A.

Horowitz et al., Effects of Trial Complexity on Decision

Making, 81 J. Applied Psychol. 757, 762-63 (1996).

Courts have also recognized the problem of evidentiary

spillover when multiple parties or claims are involved in a

single trial. For example, in Baker v. Watermann S.S. Corp.,

11 FR.D. 440 (S.D.N.Y. 1951), the court determined that

consolidation of two cases arising from the same explosion

was improper because:

[t]he nature and extent of the injuries sustained by the

plaintiff in each separate action and the period of

disability are different. No matter how carefully a jury

were instructed as to the separate consideration of the

damages of each plaintiff, there is a chance that the jury,

after listening to evidence as to pain, suffering and

injury of the two plaintiffs may be influenced,

subconsciously perhaps, by the more serious injuries of

the one plaintiff in reaching its verdict on the case of the

other.... A paramount consideration at all times in the

administration of justice is a fair and impartial trial to all

© See Edith Greene & Elizabeth F. Loftus, When Crimes are Joined at

Trial, 9 Law & Hum. Behav. 193 (1985); Sarah Tanford & Steven Penrod,

Biases in Trials Involving Defendants Charged with Multiple Offenses, 12

J. Applied Soc. Psychol. 453 (1982); Irwin A. Horowitz et al., A

Comparison of Verdicts Obtained in Severed and Joined Criminal Trials,

10 J. Applied Soc. Psychol. 444 (1980).

13

litigants. Considerations of time, money and conveni-

ence must yield thereto.

Id. at 440-41, see also Bradford v. John A. Coleman Catholic

High Sch., 488 N.Y.S.2d 105, 106 (N.Y. App. Div. 1985)

(“Plaintiffs were injured in two separate incidents, and each

alleges that his or her injury was caused by similar acts of

negligence by defendant’s employees. Presentation of both

claims to the same jury would tend to bolster each claim, to

defendants’ disadvantage.”).

Of course the plaintiffs’ bar is aware of these studies and of

the coercive threat created by the potential of jury confusion.

For them, Rule 26.01’s “conjoinder” is not solely for judicial

efficiency: they also seek to claim the advantage of a greater

likelihood of favorable verdicts due to jury confusion and

exhaustion. The plaintiffs’ bar in West Virginia promotes

these procedures because they favor the vast majority of

asbestos plaintiffs: namely, the mildly impaired and those

with highly controvertible evidence of asbestos injury.

Evidence that one worker has mesothelioma or asbestos-

related lung cancer will tend to plant the idea in the jury’s

mind that the railroad was broadly negligent, even if the

exposures are entirely unrelated in time, place, or manner.

The presence of truly injured plaintiffs will color the jury’s

view of the claims of marginally impaired plaintiffs that their

injuries are medically attributable to asbestos, and will tend to

enhance in jurors’ minds arguments for higher damages,

including emotional distress damages. With hundreds of

claims to be evaluated in one truncated proceeding, the only

hope that defendants have of achieving some individualized

resolution of their cases and avoiding prejudicial spillover is

to seek a pretrial settlement, which (with the threat of a mass

trial hanging over defendants), will obviously come at a

premium.

14

Il. IMMEDIATE REVIEW IS NECESSARY TO PRE-

VENT FUNDAMENTALLY UNFAIR PROCEED-

INGS AND SIGNIFICANT PREJUDICE TO THE

APPELLATE PROCESS.

As the foregoing discussion illustrates, Rule 26.01’s mass

trial mechanism is so fraught with prejudice that there can be

no question of individual litigants obtaining a “meaningful

opportunity to be heard,” Boddie v. Connecticut, 401 US.

371, 377 (1971), at their “““own day in court.”’”” Ortiz, 527

U.S. at 846. Accordingly, this Court need not — and should

not — wait to review the constitutionality of Rule 26.01.

A. Immediate Review Is Warranted Because Rule

26.01°s Mass Trial Procedure Is Structurally

Flawed.

In the criminal context this Court has recognized that some

procedures are so inherently unfair that they constitute a

structural error in the trial process. See, e.g., Johnson v.

United States, 520 U.S. 461, 468-69 (1997); Arizona v.

Fulminante, 499 U.S. 279 (1991). A structural error is a

“defect affecting the framework within which the trial

proceeds” that is so inherently prejudicial that the “‘trial

cannot reliably serve its function.” Arizona, 499 U'S. at 310

(quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).

This Court should grant immediate review because Rule

26.01’s shortcomings are analogous to the defects this Court

has declared to be structural error. See, e.g., Sullivan v.

Louisiana, 508 U.S. 275 (1993) (erroneous reasonable-doubt

instruction structural error because it invalidated all of the

jury’s findings); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8

(1984) (denial of the right to self-representation at trial);

Waller v. Georgia, 467 U.S. 39 (1984) (denial of the right to a

public trial). The problems with Rule 26.01’s approach are

not dependent on the procedural history, trial record or facts

of a particular case. Rather, a mass trial of unrelated and

conflicting claims is innately prejudicial in all cases for the

15

same basic reason: it deprives litigants of the right to

meaningfully present their claims and defenses to the trier of

fact.’ Without such a presentation, it is impossible to secure a

remedy that is appropriate in light of each case’s unique

circumstances. In short, delaying this Court’s review will

only result in the unnecessary infliction of constitutional

harms.

B. Rule 26.01 Has The Purpose And Effect Of

Forcing Defendants To Unfairly Surrender Their

Rights Without Trial.

Moreover, this Court should grant immediate review

because Rule 26.01’s coercive effect will insulate many

unconstitutional deprivations of due process from appropriate

appellate review.

As the Petition for Certiorari and the West Virginia

Supreme Court’s decision below suggest, over the past few

years West Virginia has become a haven for the nation’s

asbestos litigation. See State ex rel. Appalachian Power Co.

v. MacQueen, 479 S.E.2d 300, 303 (W. Va. 1996) (noting the

extraordinary volume of asbestc= elated actions filed in West

Virginia). The fact that the stais has become the jurisdiction

of choice for asbestos plaintiffs is amply demonstrated by

Justice Maynard’s concurring opinion in the case before the

Court. According to Justice Maynard, in the approximately

8,000 state-law cases currently grouped for mass trial under

Rule 26.01, “as many as five thousand of the plaintiffs ... are

” In delineating the right to represent oneself at a criminal trial, this

Court has recognized “that the right to speak for oneself entails more than

the opportunity to add one’s voice to a cacophony of others.” McKaskle,

465 U.S. at 177. Given that this statement was intended to describe the

potential for “confus[ing] the message the defendant wishes to convey”

when a single standby counsel adds his voice to that of a single defendant,

see id., it is not hard to imagine the jury confusion that will result if

numerous counsel are each given an opportunity to address the jury

regarding an array of factually dissimilar issues.

a:

16

not West Virginia residents and were never exposed to

asbestos in [the] State.” Pet. App. 21a.

This phenomenon applies equally to asbestos cases brought

under FELA. For example, in a recent asbestos-related case

filed against CSX, only 177 out of 917 plaintiffs were

residents of West Virginia. Complaint, Abbott v. CSX

Transp., Inc., No. 01-C-162M (Marshall County Cir. Ct. W.

Va. Aug. 1, 2001). In a similar asbestos-related action

brought against Norfolk Southern, only 15 of 365 plaintiffs

were residents of West Virginia. Complaint, Adkins v.

Norfolk S. Ry., No. 01-C-183(1-365) (Brooke County Cir. Ct.

W. Va. Sept. 13, 2001). The railroads estimate that, in the

nearly 6,000 FELA cases pending in West Virginia,

approximately 70% of the plaintiffs have no connection

whatsoever to the state. These FELA plaintiffs hail from at

least eighteen different states.

The reason for this remarkable trend is clear: the plaintiffs’

‘lawyers (who principally represent substantial numbers of

asbestos plaintiffs with few or no symptoms of disease) have

pressed for procedures and rules that facilitate favorable

settlements for their clients. As Justice Maynard stated in his

concurrence, out-of-state plaintiffs “migrate[] [to West

Virginia] because of the asserted pro-plaintiff bias with which

Mobil claims [the] State handles asbestos litigation.” Pet.

App. 2la. It is clear that the substantive attraction of West

Virginia tort law is a factor,® but that would not explain the

. Blankenship v. General Motors Corp., 406 S.E.2d 781, 786 (W. Va.

1991) (in the litigation of vehicle crashworthiness cases under theories of

product liability, whenever there is a split of authority in other

jurisdictions on an issue about which this court has not yet spoken, the

trial court should presume that we would adopt the rule most favorable to

the plaintiff); Bower v. Westinghouse Elec. Corp., 522 $.E.2d 424, 430

(W. Va. 1999) (medical monitoring damages available for asbestos

_ exposure); Restatement (Third) of Torts: Apportionment of Liability § 17

reporter’s note at 151 (2000) (noting that West Virginia is one of only 14

states that has retained the pure form of joint and several liability, which

17

vast migration of FELA cases to West Virginia. Those cases

come for the procedural advantages the state offers. West

Virginia juries are notoriously inclined to large verdicts.

Summary dismissal 1s generally disfavored in West Virginia

state courts, so even if a defendant can distinguish frivolous

from facially plausible claims based on the pleadings, the

defendant may be unable to obtain dismissal of the frivolous

suits. Moreover, West Virginia’s two-tiered court system

provides defendants no right of appellate review in negligence

cases, see, e.g., W. Va. R. App. P. 3, 7, and the elected West

Virginia Supreme Court of Appeals frequently declines

discretionary review to corporate defendants. Railroads,

which have been subject to mass complaints in the West

Virginia courts for years and trials where their defenses were

prejudiced by the improper joinder even of small numbers of

factually distinct asbestos plaintiffs, have routinely been

forced to settle thousands of truly meritless claims for

substantial sums because of the hydraulic pressure of the

West Virginia court system.

But the settlement pressures created by these more

traditional pro-plaintiff rules pale in comparison to the effects

of Rule 26.01. The railroads’ experience is that (consistent

with the jury research discussed above), tnals involving

numerous plaintiffs result in damages awards that are skewed

towards the most seriously injured plaintiffs while less

severely injured (or even uninjured) plaintiffs obtain windfall

verdicts. Accordingly, the in ferrorem effect of a “trial” that

will potentially assign billions of dollars in liability based on

thousands of claims (without an opportunity for an

individualized defense) cannot be overstated. See /n re

Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298 (7th Cir.

1995) (noting that the threat of runaway liability in mass tort

actions pressures defendants to settle even meritless claims);

Henry J. Friendly, Federal Jurisdiction: A General View 120

makes every defendant 100% liable for a plaintiff's injuries regardless of

the percentage of fault attributable to each defendant).

18

(1973) (calling class-action settlements induced by the chance

of an enormous verdict “blackmail settlements”). Because of

these abnormal pressures, any delay in this Court’s review

will force many litigants to surrender their constitutional

rights in exchange for a release from Rule 26.01’s

Wonderland procedures.”

C. Rule 26.01 Extinguishes Meaningful Appellate

Review.

Even apart from the inherent prejudice to defendants’ right

to a fair trial, Rule 26.01 effectively extinguishes any

possibility of a meaningful appeal. This Court knows that

any good appellate brief winnows the issues for the reviewing

court (and must do so all the more when, as in West Virginia,

appellate review is discretionary). See, e.g., Smith v. Murray,

477 US. 527, 536 (1986) (stating that the “process of

‘winnowing out weaker arguments on appeal and focusing

on’ those more likely to prevail ... is the hallmark of effective

appellate advocacy.”) (quoting Jones v. Barnes, 463 U.S. 745,

751-52 (1983)). But with mass trials, a defendant would as a

practical matter have to forego appeals entirely as to many

plaintiffs. Furthermore, neither the West Virginia Supreme

Court nor this Court is going to review all the specific

judgments against defendants for individualized prejudice.

Nothing is to be gained from delaying review until after trial

in terms of sharpening the issues; resolution of the

constitutionality of Rule 26.01 turns on whether the

unprecedented mass trials it orders are inherently prejudicial,

and that question is cleanly presented now. Moreover, the

stark reality is that the evisceration of appellate review simply

* Under the trial order implementing Rule 26.01, the jury is to select a

punitive damages “multiplier” for cases arising under state law (FELA

does not authorize punitive damages, Law v. General Motors Corp., 114

F.3d 908, 912 (9th Cir. 1997)), before determining liability. This evokes

the mandate of the Queen of Hearts: “Sentence first — verdict afterward.”

Lewis Carroll, Alice in Wonderland 98-99, 110 (1923).

19

adds to the pressure to settle rather than play Russian roulette

with the Rule 26.01 regime.

* * * *

Rule 26.01 fundamentally alters almost every aspect of

FELA litigation, including: (1) the parties’ interests in

litigating or settling FELA cases,” (2) the evidentiary

presentation required for a successful FELA trial, (3) the

jury’s role and competence in evaluating FELA claims, and

(4) the ability of the parties and the courts to achieve

meaningful appellate review. This Court is the final guardian

of federal law. It cannot allow a state court to impose state-

law procedural devices that deprive both plaintiffs and

defendants of a meaningful opportunity to present their claims

and defenses to the trier of fact.

West Virginia’s crowded litigation docket will not be

magically cured by making the state an even more attractive

refuge for tort claims that have little or no connection to the

state. Rather than solving a compelling judicial problem,

Rule 26.01’s system of packaging frivolous claims with those

of the seriously injured and coercing a settlement for the

entire group will only reward and encourage further forum

shopping. It will also undermine the federal interests in due

process and the orderly administration of FELA’s federal

common law. For these and the foregoing reasons, this

Court’s review is urgently needed.

'0 While most FELA cases eventually settle before trial, those

settlements are based on each party’s ability individually to assess the

strengths and weaknesses of its case and the costs and risks of going to

trial. This typically leads to far more equitable settlements than could

ever be obtained where, as here, defendants face the vast prejudice

inherent in West Virginia's mass trial scheme.

20

CONCLUSION

The petition should be granted.

Respectfully submitted,

LouIs P. WARCHOT CARTER G. PHILLIPS*

DANIEL SAPHIRE STEPHEN B. KINNAIRD

ASSOCIATION OF AMERICAN JAY T. JORGENSEN

RAILROADS SIDLEY AUSTIN BROWN &

Law Department WOOD LLP

50 F Street, N.W. 1501 K Street, N.W.

Washington, D.C. 20001-1564 Washington, D.C. 20005

(202) 639-2505 (202) 736-8000

Counsel for the Association of American Railroads

August 28, 2002 * Counsel of Record