Clustering: How and How Many

The core issue in alternative trial structures is one of numbers: How many cases can judge and jury manage and comprehend in one (extended) sitting? Answers vary dramatically across districts. InMassachusetts, lawyers see trial of more than one case as a vio­lation of fundamental due process rights. Defendants argue that in

of liability and damages in a products liability case. Wheelahan v. G. D. Searle & Co., No. 86-1598 (4th Cir. Mar. 16, 1987). The court concluded that, while “bifurca­tion to determine causation in the abstract is not permissible,” a personal physi­cian’s testimony could be limited to capacity of Copper 7 IUDs to produce injuries in general. Id., slip op. at 5-6. Another challenge to bifurcation procedures in a toxic tort context is pending in the Sixth Circuit. See In re Merrell Dow Pharmaceuticals “Bendectin” Litig., No. 85-3858 (6th Cir. argued Oct. 9, 1986).

1. See, e.g., Note, Increased Risk of Cancer as an Actionable Injury, 18 Ga. L.
   Rev. 563 (1984). Cf. Rosenberg, supra note 1, at 885-87 (discussing risk of future
   injury as a compensable injury).
2. Such evidence may become available in the near future. The National Sci­
   ence Foundation has awarded a grant to Professor Irwin A. Horowitz of the Univer­
   sity of Toledo Department of Psychology to study, in a laboratory setting, the effects
   of various forms of bifurcation on jury decision making. National Science Founda­
   tion, An Experimental Study of Information Processing in Complex Litigation,
   Grant No. SES-8609892 (1987).

a mixture of cases, the strong bootstrap the weak. One defense counsel thought that defendants can win a single trial, but not a consolidated one. Reality seems more complex, however, in that de­fendants won a consolidated trial involving approximately fifty plaintiffs in the Southern District of Texas. Bifurcation of the pro­ceedings may have affected that result.

In most districts, plaintiffs’ lawyers expressed a preference for the individual trial on the grounds that it permits them to high­light their client’s injuries and not have the individual be lost in a crowd of similar cases. Nevertheless, most plaintiffs’ attorneys have adapted to the demands of the asbestos caseload. One experi­enced national plaintiffs’ counsel asserts that clusters of thirty-five work, but that clusters of fifty do not. ATexasdefense lawyer ex­pressed a preference for consolidation of groups of fifty, with the proviso that bifurcation be used. Both of these preferences, how­ever, seemed to be influenced by the defendants’ verdict in a set of fifty consolidated cases in the Southern District of Texas. This pref­erence, of course, was in comparison with a class action. TwoTexasplaintiffs’ lawyers’ preferences were for groups of thirty rather than a class action.

Recent empirical evidence, based on laboratory simulations of a toxic tort case, suggests that there may be some validity to the views of lawyers on both sides.²⁹⁹ When a seriously injured plain­tiff is included with a group of less seriously injured plaintiffs, the awards for the latter are higher than if they were tried sepa­rately.³⁰⁰ On the other hand, the award to the seriously injured plaintiff is less than it would be if the trial were separate. How­ever, the seriously injured plaintiff faces a higher likelihood of a defense verdict on liability. When the jury is aware that bellwether

1. Horowitz & Bordens, The Effect of Outlier Presence, Plaintiff Population
   Size, and Aggregation of Plaintiffs on Simulated Civil Jury Decisions (unpublished
   manuscript 1987) (on file at theFederalJudicialCenter).
2. This phenomenon apparently is illustrated by the jury verdict in the consoli­
   dated trial in Newman v. Johns-Manville, No. M-T9-124-CA (E.D. Tex. Oct. 24, 1984).
   One severely disabled plaintiff was expected to receive a much higher award than
   the other three consolidated plaintiffs, whose injuries were disputed and less visible.
   Rand research reported, after interviewing the jury, that the jury decision “was
   based on the belief that all of the plaintiffs would eventually become as sick as the
   single disabled plaintiff.” Hensler, supra note 1, at 42. They concluded that the jury
   treated probabilistic evidence in an absolute fashion. Id, The criticism seems to miss
   the mark. The jury is called on to make an absolute judgment on the question of
   whether plaintiffs will suffer future injuries. See, e.g., Gideon v. Johns-Manville
   Sales Corp., 761 P.2d 1129 (5th Cir. 1985) (Texas law requires full compensation for
   present injuries and future consequences; no separate cause of action is allowed for
   a cancer that develops after verdict). If the jury’s only information is probabilistic,
   their role is to make the best judgment possible with the limited information avail­
   able.

Chapter VII

plaintiffs represent hundreds of other plaintiffs, the compensatory and punitive awards were higher than if the jury was given the specific number of plaintiffs represented by the bellwethers.³⁰¹

Numbers included in consolidated clusters may differ from the number of individual claims presented to a single jury in one sit­ting. In the Jenkins class, thirteen named plaintiffs’ cases were pre­sented to the jury. In the Newman case, four bellwether plaintiffs represented the cluster of thirty. Judge Gibson in the Wilson case found that the jury could follow five cases at a time.³⁰² In Mary­land, clusters were set at a maximum of ten, based on the under­standing that a jury could not distinguish more than eight to ten cases. At bottom, however, experiences with juries in deciding groups of cases are so limited that it is difficult to generalize. Whether these armchair judgments reflect the upper limits of a jury’s capacity to distinguish cases remains uncertain. It may be a subject that can only be systematically examined in a social psy­chology lab rather than in a natural setting.

Another limit on the number of cases is the workload on the spe­cialist-lawyers in each district. As a practical matter, courts make accommodations with the lawyers, sometimes pressing for expan­sion of the capacity of the firm to handle cases. In one district, the number of pulmonary specialists who could serve as experts was perceived as a limit on the flow of cases. In some districts, the law­yers devote more resources to asbestos litigation than courts do. One effect of this is that lawyers can manipulate the system by de­manding trials. In one district aWellingtonregional counsel was engaged in a power struggle with the state court over the trial schedule for the year. He reasoned that he had more lawyers than the court had judges and that, by proceeding to trial in all cases, he could conform the list to his wishes.

The above discussion assumes that grouping of greater numbers of cases produces greater caseload movement. That is not univer­sally true. In the Eastern District of Pennsylvania, the court ex­perimented with consolidation of cases³⁰³ and decided to return to single trials, dispersed among all the judges of the court. In this large metropolitan court, that strategy has served to dispose of sub­stantial numbers of cases. In the Eastern District of Tennessee, the court also has a high percentage of dispositions based on a policy of

1. Horowitz & Bordens, supra note 299.
2. Wilsonv. Johns-Manville Sales Corp., 107 F.R.D, 260, 253 (S.D.Tex.1985),
3. See, e.g., Neal v. Carey Canadian Mines, Ltd., 548 F, Supp. 357 (E.D, Pa.
   1982), aff’d sub nom. Van Buskirk v, Carey Canadian Mines, Ltd., 760 F.2d 481 (3d
   Cir. 1985),