Practical Advice for Defending Toxic Tort Actions

Texas Lawyer © 2001. All rights reserved

11/29/2001

Defending a toxic tort case involving multiple plaintiffs and defendants, not surprisingly, presents multiple issues of concern. In developing a litigation strategy, thoughtful defense counsel will anticipate these issues. Common issues include whether to participate in a joint defense group, and on what conditions; how to reduce costs of discovery and trial; and how to deal with large numbers of plaintiffs, some of whom may be minors. Let's focus first on selected issues relating to multiple defendants and then on some relating to multiple plaintiffs.
 
In toxic tort cases, especially those in the environmental area, it is not uncommon for groups of defendants to band together for tactical reasons and to achieve cost efficiencies. A number of similarly situated defendants may choose to be represented by a single counsel and to join in a group as a result of that common representation. In addition, these groups of defendants or individual defendants may choose to become part of a larger joint defense group or committee, comprising most, if not all, the defendants. Although beneficial, both types of banding together create issues that defense counsel must address.
 
Defense counsel who represent several clients should protect themselves and spell out in an engagement agreement, among other things, the application of the attorney-client privilege to the joint defense group; the tasks that comprise joint work, for which costs are to be shared; the tasks that comprise separate work; how and to what extent information will be shared among the co-defendants; and acknowledgement and resolution of potential conflicts, e.g., counsel will not represent parties in related causes of action against each other, and co-defendants agree that any such claims are tolled. Because of the conflicts issue, defense counsel should suggest that separate counsel, e.g., in-house counsel, approve the engagement agreement.
 
Defense counsel, representing an individual defendant or a group of defendants, also should consider whether to recommend to clients that they initiate or join a joint defense group or committee to deal with matters of common concern, including negotiating agreements with opposing counsel; presenting a common position to the court; collecting and managing documents of common interest; retaining, preparing and examining experts; and coordinating master discovery (from all defendants) and examination of plaintiffs. The committee may collectively retain one outside counsel whose job it is to represent the group as a whole and not any of its individual members, and insist that counsel for each of the various defendants split group work among themselves. The agreement creating the committee must address the same type of issues that the agreement among co-defendants represented by a single counsel does.
 
Moreover, although counsel for each of the various defendants comprising the committee do not represent other committee members, they unexpectedly may find themselves conflicted out of future representation adverse to that committee member because they may be exposed to privileged information from group members who are not their clients. Accordingly, they should address this issue up front.
 
Participation in a committee allows defendants to reduce their litigation costs. Members of the committee, for example, may split responsibility for various experts. In assigning counsel for experts, it makes sense to have those people who are assigned to a particular topic focus on their own expert witnesses and the corresponding experts of the other side. Individual defendants may need experts on issues that affect that particular defendant. Thoughtful counsel will consider carefully what participation is necessary, given the position of their clients. Participation in all expert and fact depositions, for example, may not be necessary if the tasks are divided properly and if good counsel is handling them and is sharing transcripts and summaries.
 
MULTIPLE PLAINTIFF ISSUES
 
In cases involving hundreds or thousands of individual plaintiffs, defense counsel should consider how to manage the discovery and the litigation efficiently. One useful discovery tool is the court-ordered questionnaire to obtain basic information. Early on, counsel should select software that facilitates input and management of relevant information obtained from responses to the questionnaire and from other discovery. An early investment will save time and money later. The software and database should be accessible to counsel for each committee member. In managing the litigation, defense counsel should consider the advisability of using selected groups of plaintiffs to obtain either a binding result or a basis for negotiating a settlement.
 
Defense counsel should consider whether certain of the plaintiffs are minors. Generally the court then will appoint a guardian ad litem to represent their interests, which may not necessarily coincide with those of their families. Thoughtful counsel will anticipate issues such as the appointment of the guardian ad litem, payment of the guardian ad litem's fees and control over the amount of work the guardian ad litem must do.
 
If the case is settled, defense counsel should anticipate problems in obtaining evidence of consent and releases from all the plaintiffs and guardians on behalf of minors. With hundreds or thousands of plaintiffs, this often can be quite difficult. At a minimum, counsel should have a complete list of all parties, a method of accounting for their signatures to settlement, and a method for withholding settlement payments or reducing the settlement fund until all signatures are obtained.
 
While these are just a few examples of issues that defense counsel should tackle in a mass toxic tort case, a common theme arises. Thoughtful defense counsel must provide intelligent, informed advice on a number of issues early in the litigation. Filing an answer and "seeing what happens" is unacceptable. Even mass toxic tort cases can be handled efficiently and within budget. Considering the end game at the beginning is always a good start.
 
  
Copyright © 2001 NLP IP Company All rights reserved
This article republished with permission from law.com.

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