Asbestos Litigation, In re
| Decision Date | 27 January 1998 |
| Docket Number | No. 95-40635,95-40635 |
| Citation | 134 F.3d 668 |
| Parties | IN RE ASBESTOS LITIGATION, James FLANAGAN, David H. Middleton, Edee Cochran, Esteban Yanez Ortiz, John R. Allgood, Henry William Evers, Lester Eugene Taylor and Safety National Casualty Corporation, Appellants, v. Gerald AHEARN, James McAdams Dennis, Charles W. Jeep, James Drake, Juanita Drake, James Ellison, Roland Dearborn, Judith Dearborn, Kerwin Butcher, Dir., Workers Comp., Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, Paul Cochran, Ida Beck, Marion Behee, Longshore Intervenor, William James Mitchell, Fibreboard Corporation, Bethlehem Steel Corporation, Continental Casualty Company, Pacific Indemnity, Francis McGovern, Owens-Illinois, Inc., Penn Mutual Life Insurance Company, Columbia Casualty Company, CNA Casualty Company of California, Celotex Corp., Daniel Herman Rudd Jr., on behalf of themselves and others similarly situated, John Hansel, on behalf of themselves and others similarly situated, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leonard C. Jaques, Michael J. Connor, Jaques Admiralty Law Firm, Detroit, MI, for Flanagan and Middleton.
Elihu Inselbuch, Charles Sanders McNew, Caplin & Drysdale, Chartered, New York City, Steven Kazan, Kazen, McClain, Edises, Simon & Abrams, Oakland, CA, for Ahearn, Dennis, Jeep, Ellison and Mitchell.
Joseph F. Rice, Ness, Motley, Loadholt, Richardson & Poole, Charleston, SC, Peter Van Lockwood, Caplin & Drysdale, Chartered, Washington, DC, Joseph B. Cox, Jr. Cox & Cox, Sullivan's Island, SC, for Ahearn, Dennis, Jeep and Ellison.
Harry Fred Wartnick, Wartnick, Chuber, Harowitz, Smith & Tigerman, San Francisco, CA, Eric D. Green, Boston, MA, for Ahearn, Dennis and Jeep.
Bruce L. Ahnfeldt, Napa, CA, for Juanita Drake.
Clinton A. Krislov, Krislov & Associates, Chicago, IL, Ronald W. Lupton, Stinson, Lupton & Weiss, Bath, ME, for Roland and Judith Dearborn, Butcher and Longshore Intervenor.
Michael Scott Hertzig, Washington, DC, for Dir., Workers Comp., Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.
Frederick M. Baron, Dallas, TX, for Paul and Edee Cochran, Beck, Behee, Allgood, Evers and Taylor.
Stephen M. Snyder, Kelly C. Wooster, William R. Irwin, James L. Miller, Brobeck, Phleger & Harrison, San Francisco, CA, for Fibreboard Corp.
Herbert Maurice Wachtell, Meyer G. Koplow, Wachtell, Lipton, Rosen & Katz, New York City, Donald T. Ramsey, David M. Rice, Rodney L. Eshelman, Carroll, Burdick & McDonough, San Francisco, CA, for Continental Cas. Co., Columbia Cas. Co. and CNA Cas. Co. of Cal.
Billy Glynn Parker, Ireland, Carroll & Kelley, Tyler, TX, for Continental Cas. Co.
Paul J. Bschorr, Richard B. Sypher, Dewey Ballantine, New York City, for Pacific Indem.
Richard L. Josephson, Baker & Botts, Houston, TX, Robert B. Shaw, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, SC, for Owens-Illinois, Inc.
Gary A. Bresee, Barger & Wolen, San Francisco, CA, for Penn Mut. Life Ins. Co.
Stuart Philip Ross, Ross, Dixon & Masback, Washington, DC, for Columbia Cas. Co. and CNA Cas. Co. of Cal.
Charles P. Schropp, Schropp, Buell & Elligett, Tampa, FL, for Celotex Corp.
Anne W. Bloom, Arthur H. Bryant, Trial Lawyers for Public Justice, Washington, DC, for Trial Lawyers for Public Justice, amicus curiae.
Jeffrey Robert White, Pamela A. Liapakis, Associated Trial Lawyers of America, Washington, DC, for Association of Trial Lawyers of America, amicus curiae.
James L. Kimble, Craig A. Berrington, David F. Snyder, American Ins. Ass'n, Washington, DC, for American Ins. Ass'n, amicus curiae.
Scott McCullen Baldwin, Baldwin & Baldwin, Marshall, TX, for Asbestos Victims of America, amicus curiae.
Brent M. Rosenthal, Steve Dan Baughman, Baron & Budd, Dallas, TX, Sidney Katherine Powell, Powell & Associates, Dallas, TX, S. Ann Saucer, Dallas, TX, for Edee Cochran, Ortiz, Allgood, Evers and Taylor.
Andrew K. Epting, Jr., Wise, Pratt-Thomas, Pearce, Epting & Walker, Charleston, SC, Roy L. Stacy, Dennis D. Conder, Dallas, TX, for Safety Nat. Cas. Corp.
Appeals from the United States District Court for the Eastern District of Texas.
Before REAVLEY, DAVIS and SMITH, Circuit Judges.
In our prior opinion, we affirmed the judgment below, which approved class action settlements of asbestos-related claims involving Fibreboard Corporation. In re Asbestos Litigation, 90 F.3d 963 (5th Cir.1996), vacated, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997). The Supreme Court vacated our judgment and remanded the case for reconsideration in light of Amchem Products, Inc. v. Windsor, --- U.S. ----, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). After oral argument and reconsideration, we can find nothing in the Amchem opinion that changes our prior decision. We again affirm.
There are two controlling differences between this case and Amchem. First, this class action proceeded under Rule 23(b)(1); Amchem was a Rule 23(b)(3) case. Second, there was no allocation or difference in award, according to nature or severity of injury, in the present case as there was in Amchem; in the case here all members of the future claimant class are treated alike. Individual damage awards will subsequently be decided according to individual damages.
The district court made extensive findings and found, specifically, that separate actions by members of the class would create a risk of adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. The language of the district court matches the language of Rule 23(b)(1)(B). No one has contested that finding of the district court, probably because it is incontestable.
The Supreme Court stated in Amchem that a settlement class action, like all federal class actions, cannot proceed unless the requirements of Rule 23(a) are met, irrespective of whether the proposed settlement is deemed fair under Rule 23(e). We detailed in our prior opinion our agreement with the thorough study and conclusions by the district court, satisfying the requirements of class certification under Rule 23(a). All members of the class, and all class representatives, share the common interests: suffering harm from asbestos exposure and seeking equitable distribution of compensation from limited funds. None of the uncommon questions, abounding in Amchem, exist in the present case.
The only conflict between members of the future claimant class could be competition for larger and earlier shares of available money, but that is precisely the reason for Rule 23(b)(1)(B) and the problem it is designed to solve where the money is limited. That conflict or competition is controlled for the benefit of all members of the class. It follows that the lawyer representing the class serves only common interests of the class.
In a five-paragraph unsigned opinion, the panel majority states that "we can find nothing in the Amchem opinion that changes our prior decision." 1 Like that prior decision, the new majority opinion overrides the substantive and procedural rights of large groups of asbestos claimants. Because this court cannot properly bless a settlement that Congress has not authorized and the Constitution forbids, I respectfully dissent.
Even if, arguendo, the law that informs this case was not plain before the Court decided Amchem Prods. v. Windsor, --- U.S. ----, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), that law is evident now. It is not surprising that the Court issued a "GVR" 2 requiring this court to reconsider the majority's now-vacated opinion 3 in light of Amchem. The Court issues a GVR order "[w]here intervening developments ... reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration...." Lawrence, 516 U.S. at 167, 116 S.Ct. at 607. I believe the remand in this immensely important case merits more thorough consideration than is reflected in the majority's terse per curiam treatment.
Like the district court a quo, the district court in Amchem had approved a gigantic settlement, including a complex scheme for processing claims administratively, in an effort to achieve efficiency and fairness in the resolution of massive numbers of asbestos claims without resort to individual trials. 4 The Amchem Court rejected the settlement because it plainly is not authorized by the applicable rules and statutes:
The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution. And [FED. R. CIV. P.] 23, which must be interpreted with fidelity to the Rules Enabling Act [, 28 U.S.C. § 2072(b),] and applied with the interests of absent class members in close view, cannot carry the large load ... the District Court heaped upon it. As this case exemplifies, the rulemakers' prescriptions for class actions may be endangered by "those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the rule] with distaste."
--- U.S. at ----, 117 S.Ct. at 2252 ().
The lesson is that, regardless of the benefits a particular settlement might seem to confer, in terms of "the greatest good for the greatest number" of parties, the niceties of statutory and constitutional constraints must be observed. Thus, while parties and district courts can be praised for their resourcefulness in formulating settlements that resolve mass tort litigation, the statutory and constitutional constraints, as the Amchem Cou...
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