This is a speech that Professor Coffee is scheduled to deliver today as part of a webinar program that will pay tribute to Judge Jack Weinstein and will be presented jointly by Columbia Law School and the Institute of Judicial Administration at New York University School of Law.

We all know that Jack Weinstein is often described as the Father of Mass Tort Class Actions. That title has been bestowed on him by virtually everyone who has studied this field. But the larger, sadder question is whether his descendants in this field have died out? Is the field moribund? Was he rather Uncas — the “Last of the Mohicans” in mass torts?

Certainly, the consensus view is that mass tort class actions appeared in the 1980s, largely based on his masterful (and successful) handling of the Agent Orange case, and then declined in the 1990s as both the Second Circuit and then the Supreme Court (most notably in Amchem Products) began to view class certification more skeptically, particularly in the mass torts field. Today, on special facts, some mast tort classes are still certified (such as the BP “Deepwater Horizon” case in Louisiana or Judge Anita Brody’s recent NFL “concussion” class action), but the typical vehicle for the resolution of mass tort litigation involving personal injuries today is the consolidated action (which Jack Weinstein appropriately called the “quasi-class action”).

Nonetheless, even if the mass tort class action for personal injuries has become, like the unicorn, more rumored than seen, many of Jack’s innovative techniques for resolving such disputes persist. Sadly, however, other of his innovations — particularly, his unique ability to inject massive doses of judicial empathy into mass tort proceedings — have not survived, and may need to be rediscovered.

In that light, let’s review the Agent Orange case, which I think was the high point of his career.[1] The case was brought in 1979 before Judge George Pratt in the Eastern District of New York, and Judge Weinstein only inherited the case when Judge Pratt was promoted to the Second Circuit. Some 600 lawsuits had been filed by 15,000 individuals, and all were consolidated before Judge Pratt by the Judicial Panel on Multidistrict Litigation. Over 1,500 attorneys became involved, and defendants spent over $100 million preparing for trial. Somewhere between 600,000 and 2.4 million U.S. servicemen were believed to have been exposed to this herbicide, which included the particularly toxic chemical, dioxin.

Unlike other mass tort cases that had earlier received class certification, no single incident or event lay at its core (for example, a fire, explosion, oil spill, or crash). Instead, individuals who had been exposed to a toxic chemical (which had been used in only minute quantities) experienced over an extended period a broad range of medical and psychological symptoms (possibly as a result). Causation was the key question, and Judge Weinstein never believed that plaintiffs had accumulated adequate evidence of what harms or illnesses dioxin could actually cause. In fact, he doubted that any plaintiff’s trial verdict would stand up on appeal, and for this reason saw settlement as the only feasible outcome.

What made Agent Orange a vivid spectacle was not its size or complexity, but the fact that it was, in Yale Law Professor Peter Schuck’s words, a “searing morality play.”[2] Veterans who had served their country felt betrayed by the U.S. government’s refusal to accept any responsibility for Agent Orange. This position also offended Judge Weinstein’s deeply held communitarian ethic.

The cast of characters in Agent Orange was Shakespearean in scope: heroes and villains, dreamers and cynics. In Peter Schuck’s words, “flamboyant trial lawyers; class-action financial entrepreneurs; skillful, Machiavellian special masters; a Naderesque litigation organizer” were all stage-managed by “a brilliant crafty judge.”[3] I think you can guess who the “crafty judge” was — and more in a moment about those very talented special masters.

But what specifically did that “crafty judge” do? Inheriting the case in late 1983 and intent from the outset on achieving a settlement, he imposed an immovable trial deadline of May 7, 1984, only months away. From the outset, he denied both sides any opportunity to appeal his rulings to the Second Circuit, denying, for example, requests for an interlocutory appeal of his class certification decision. Nor, whenever possible, did he formally rule on issues. Instead, he revealed his “preliminary thinking” to the lawyers without committing himself or inviting an appeal. These hints and signals advanced the case, but evaded appellate review.

Before Judge Weinstein inherited the case, it had already been potentially crippled as a class action. Judge Pratt had understandably sought to apply one single law to the case — federal common law. This made sense given the centrality of the federal contractor defense to the case, but the Second Circuit reversed this decision, apparently signaling that the law of all 50 states would apply. This arguably precluded the “predominance” of common legal issues that is a necessary prerequisite for a court to certify a class under Federal Rules of Civil Procedure, Rule 23(b)(3). Moreover, this ruling was binding on Judge Weinstein as “law of the case.” Most judges would have found this an insurmountable barrier, but not a “brilliant crafty” one.

Living up to his reputation, Judge Weinstein developed (or possibly “invented”) a “national consensus” standard to be applied as the governing law. In his view, there was a consensus among the states as to the applicable conflict of law rules, particularly with respect to the substantive law of manufacturer’s liability.[4] His premise was that a state court in any state would have ruled the same way. Apparently unprecedented, this approach was not immediately appealable, and it gave him great discretion in fashioning the legal principles that would govern any settlement.

Keeping the parties on a forced march to trial, he increased the pressure on both sides to settle. To this end, he moved the trial from Uniondale (where Judge Pratt had overseen the case) to Brooklyn, which threatened the defendants with the much larger jury verdict that a Brooklyn jury was thought to be likely to award. Meanwhile, Plaintiffs were consistently pressured to develop statistical evidence on causation. Also, it had become clear that plaintiffs were having great difficulty financing the case and could not delay.

Early on, Judge Weinstein named Shira Scheindlin as a special master. A former prosecutor (and now a retired federal judge and active mediator), she knew that he wanted no delays, and she communicated that message effectively. Discovery was compressed into only three months when it might have normally taken several years.

Next, Judge Weinstein appointed three special masters to help orchestrate the settlement. The use of special masters for this purpose was new (and possibly unprecedented). The three chosen showed both the judge’s ability to attract extraordinarily talented aides and his political sophistication: Ken Feinberg, a Democrat and former aide to Senator Ted Kennedy; Leonard Garment, White House Counsel under President Nixon; and David Shapiro, a distinguished law professor and an acknowledged expert on class actions. Nonetheless, the judge, himself, appears to have been intimately involved in devising the terms of the settlements.

Meanwhile, the judge dealt with the U.S. government. He realized that the government’s legal position was impregnable, but he strongly believed that it was morally irresponsible. Thus, he refused to dismiss the government from the case and assigned its lawyers a central table in the courtroom to heighten their visibility. His opinions regularly highlighted the government’s role and called on it to contribute to a settlement. Ultimately, he was successful on this score, and legislation was enacted — but not until 1991.

Alternately the friendly mediator and the hard-nosed judge, Weinstein pushed and prodded both sides (neither of whom were ready for trial) to a $180 million settlement. Professor Schuck reports that the defendants would have paid $200 million, but Judge Weinstein feared that this amount would signal to others that the case was stronger than it was and would encourage more litigation. In short, he placed a lid on the settlement to avoid sending the wrong signal.

Eventually, after the settlement, all his rulings (from class certification to settlement fairness) were appealed to the Second Circuit, which upheld them (with some minor changes). Judge Ralph Winter wrote the principal opinion and used it to indicate his doubts about using class actions for enormous, sprawling tort cases.[5] Later, in asbestos litigation, these doubts turned from misgivings to outright reversals. Why then did these judges accept Judge Weinstein’s procedural innovations? The most likely answer is that Judge Weinstein coupled his unorthodox rulings with a settlement that both the public and the parties, themselves, wanted. It was a brilliant feat, orchestrated by a crafty judge — but just a little bit beyond what the law allowed.

Agent Orange as an Illustration of Jack Weinstein

Did Judge Weinstein behave as the classic neutral umpire — the model of the judge that law schools tend to assume and hold out to students? Certainly not! Neither his friends nor his foes would accuse him of that. Instead, he lived up to his own vision of the judge as problem solver. Still, those who would view Judge Weinstein as simply a pro-plaintiff judge miss much. When those plaintiffs who opted out of the class settlement came to trial before him, he held against them, finding that the evidence on causation was insufficient. The plaintiff’s attorneys in the class action were also bitterly disappointed with his very parsimonious fee award (only $10.7 million on a $180 settlement — or well less than 10%). Why so low? Some believe that Judge Weinstein was dissatisfied with the quality of their case and its weak evidence on causation.

The last stage of the Agent Orange litigation showed Judge Weinstein at his most characteristic. Before the settlement was distributed, he held six days of fairness hearings — three in Brooklyn, and one each in Houston, Atlanta, and San Francisco. Apparently, the judge listened to 500 persons, and he received hundreds of telephone and written communications. This was Judge Weinstein as the Master of Empathy. It was not fake; he believed the best service he could perform was to show veterans (and their widows and descendants) that their government did care about and respect them.

Unfortunately, of all his innovations, this was the one that he was least able to pass on to the next generation. Empathy is hard (and maybe impossible) to mandate. Today, we do see occasions when it breaks out briefly, even in contemporary practice, but it is not common. If Jack Weinstein had it in his power to correct one thing about contemporary mass torts and their resolution, I expect it would be to insist that a caring, feeling judge was necessary.

In short, when all is said and done, Jack Weinstein certainly was “brilliant” and “crafty,” but his true defining characteristic was his empathy; he cared, and it showed.

ENDNOTES

[1] For fuller accounts of the Agent Orange litigation, one should begin with Peter Schuck, AGENT ORANGE ON TRIAL (1987) and then turn to Jeffrey B. Morris, LEADERSHIP ON THE FEDERAL BENCH: The Craft and Activism of Jack Weinstein (2011). For his own views, see Jack Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 NW. U.L. Rev. 470 (1994). Having served him briefly as a special master, I have heard his views on this and other mass tort cases.

[2] See Schuck, supra note 1, at 11.

[3] Id. at 15.

[4] See In re “Agent Orange” Prod. Liability Lit., 580 F.Supp 690, 698 (E.D.N.Y. 1984).

[5] In re “Agent Orange” Prod. Liab. Lit., 818 F.2d 145, 164 (2nd Cir. 1987).

John C. Coffee, Jr., is the Adolf A. Berle Professor of Law at Columbia University Law School and Director of its Center on Corporate Governance.