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15 Litig. News 1 (1989-1990)

handle is hein.journals/lignws15 and id is 1 raw text is: OCTOBER 1989 VOLUME 15, NUMBER I

LITIC ATIO N

NEWS

A PUBLICATION OF THE SECTION OF LITIGATION  AMERICAN BAR ASSOCIATION

Section Supports Commission on Mass Torts Report
Proposals place mass tort cases in single forum, avoid separate adjudications in multiple courts
by Christine E. Sherry, Associate Editor

The ABA Commission on Mass
Torts has recommended Congressional
legislation to establish a federal judicial
panel to manage mass tort litigation. In a
lengthy report to the ABA House of
Delegates, the Commission, chaired by
Litigation Section member Robert F.
Hanley of Denver, issued 13 specific
recommendations to the House of Dele-
gates relating to the management of
mass tort litigation.
The Litigation Section strongly sup-
ported the report, which was presented
to the House of Delegates in Hawaii in
August. The House deferred action on
the report until February.
The Commission's recommendations
range from the establishment of a federal
judicial panel to specific proposals lbr
handling punitive damage claims. The
Commission's findings focus on ways
to prevent or reduce duplicative and
inconsistent relitigation of the same
issues in a mass tort context, according
to Professor Frank F. Flegal of George-
town University Law Center, reporter to
the Commission.
As the report states, its fundamental
premise is that separate adjudication of
individual tort claims arising from a
single accident or use of or exposure to
the same product or substance is ineffi-
cient and wasteful, seriously burdens
both state and federal judicial systems,
poses unacceptably high risks of incon-
sistent results, and contributes to public
dissatisfaction with the tort law system
and the legal profession. The report
goes on to develop a 'comprehensive
program for consolidation and effective
management of mass tort cases before a
single court.
An important feature of the program

is establishment of a federal judicial
panel empowered to make an initial de-
termination as to whether some or all in-
dividual cases should be consolidated
before a single federal court for some or
all purposes. If consolidation is di-
rected, that court would have broad
authority to manage the litigation and
would be empowered, but not required,
to resolve all issues, including liability
and damages.
The report also includes specific rec-
ommendations addressed to jurisdiction
and choice of law in mass tort litigation,

punitive damage claims, expert and sci-
entific testimony. management of con-
solidated mass tort litigation, and litiga-
tion fees and expenses.
For punitive damage claims arising in
mass tort litigation, for example, the
Commission recommends federal legis-
lation permitting consolidation of all
punitive damage claims against Ihe same
defendant that involve the same or sub-
stantially similar conduct, and providing
that damages may be awarded only on
clear and convincing proof that the de-
(continued on page 5)

Section To Examine Lawyers' Ancillary
Business Activities
by Mary E. Murphy, Associate FEditor

T he Section of Litigation's Task
Force on Ancillary Business Activity
has taken a lead position in the ethical
debate concerning lawyers' affiliations
with non-legal professionals. Task Force
Chair Dennis J. Block, New York City,
said the seven-nember Task Force's
intent is to examine the issue of whether
such affiliations are likely to effect ad-
versely the independence and profes-
sionalism of attorneys.
Block is on one side of the issue,
arguing that lawyers' involvement in
business activities inherently raises
ethical problems. including ihreats to
independent judgment, conflicts of inter-
est, and the deterioration of the quality
of legal work. All of this reflects poorly
on lawyers' professional image at a time
when the bar is seeking to improve its
image, he said.
The principal forns of business activ-

ity that concerns Block and others op-
posing affiliations are finis operating
businesses that provide services ancil-
lary to the practice of law; significant in-
vestments by law finns in their clients'
businesses; and lawyers serving on the
boards of directors of corporate clients.
Block hopes the Task Force, and sub-
sequently the Section and the ABA
House of Delegates, will adopt a series
of resolutions that would require, among
other things, that law firms refrain from
engaging in or owning non-legal busi-
nesses.
On the other side of the issue is G.
Marc Whitehead, Minneapolis, MN,
who believes that the recent impulse of
attorneys to own or participate in non-
legal businesses is a genie that has
the power to do much good.
Whitehead, Co-Director of the
(contlinued on vage 8)

Special Insert:
Resources for
Litigators
Selected
Unpublished Papers
by Section Members

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