Professor Argues For Sample Trials in Mass Torts

I'm writing several times a day about products liability for Law.com/The National Law Journal. Occasionally I cross-post a blog I find particularly interesting.

The U.S. Supreme Court disfavored setting individual damages through statistical sampling in Wal-Mart Stores Inc. v. Dukes. But Alexandra Lahav, a University of Connecticut School of Law professor, argues there remains a role for sample trials in mass torts.

"Right now, the way the law is, you couldn't have a mandatory sampling regime" of cases picked by the plaintiffs and cases picked by the defendants and award damages based on the average of verdicts in those cases, Lahav said in an interview.

But academics have argued that the use of sample trials could comport with due process if used to establish a rebuttable presumption of what damages awards should be, said Lahav, who focuses on due process concerns in class actions and mass actions.

"One of the biggest issues facing courts today in civil procedure is the massive influx of cases," Lahav said—whether in the Deepwater Horizon case or litigation over products that have been mass-distributed.

There are problems with winding up mass-torts through accords in which plaintiffs' law firms settle their inventory of cases separately, Lahav said. Some lawyers are better at negotiating than others and can reach better results for their clients.

Then too, defendants sometimes offer more to plaintiffs with lower-value claims to persuade them to settle at the expense of plaintiffs with higher-value claims and greater injuries, Lahav said. Legal ethicists have “expressed the concern that some plaintiffs will be sold out in favor of other plaintiffs," she said.

If there were more transparency to settlements, Lahav said, she would worry less about whether plaintiffs are getting fairly compensated. Inventory settlements "may be perfectly fair,” she said. “They may be fabulous."

And sample trials would allow for plaintiffs to feel they have been heard, she said.

“Everybody else can look at those [sample] cases and see what happens,” Lahav said. “It's almost like a representative or surrogate. [While] they won't get their catharsis of having their very own trial, they'll get to feel that, at least, the defendant was called to account.”