# Amicus Curiae Brief — Mobil Corp. v. Adkins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0153%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 944

## Text

“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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0153%3A09. Public record. Not legal advice.