MASS TORTS AS COMPLEX LITIGATION (245.

47)
Visiting Prof. Peter H. Schuck
Spring 2015
This seminar will meet from 3:35-5:25 every Tuesday in room
107.
Who Am I? I have been a professor at Yale Law School since
1979, and recently took emeritus status because I live in New
York City and the commute to New Haven became a hassle. Since
then, I have continued to teach at Yale in the fall semesters
(through 2013-14) and taught elsewhere in the spring semesters,
including Berkeley last spring. In addition to this law school
class, I am teaching a course at the Goldman School of Public
Policy on why government fails so often and how it can do better
(the title of my 2014 book).
Readings. The required text for the course is Peter H.
Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts
(Harvard U. Press, enlarged paperback ed., 1987). My book should
be on reserve in the library if you would rather not purchase it.
The other assigned readings will be posted online on the course
site.
Class. Students are expected to read all assignments and
participate actively in all class discussions. I have arranged
for many distinguished experts to come speak to us about their
mass tort specialties. I shall expect you to ask them
penetrating questions based on the assigned readings.
Papers. Each student must write a seminar paper which, along
with the quality of the student's class participation, will
determine the student's grade. The papers must be submitted on
or before April 21, the final day of class; I will grant
extensions of time only under the most compelling circumstances.
I am willing to have a limited number of students write their
seminar paper in fulfillment of the School's writing requirement;
students wishing to do this should discuss this with me promptly.
Each student must obtain prior approval of his/her paper
topic from me. I prefer that you propose topics that you have
developed on your own and that reflect your interests, but I am
willing to suggest topics for those of you who, despite having
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given the matter some focused thought, have not come up with
anything. At a minimum, you should identify one or two areas of
interest before asking me to help you with a topic. In any
event, I urge you to see me about paper topics as soon as
possible, preferably in the first two weeks.
Office Hours. My office is 587 Simon Hall. I hold no
specific office hours but will usually be there or at the Goldman
School of Public Policy where I am teaching a separate course.
Except when I am preparing for class, I will probably be able to
see you when you come by. If I cannot see you then, please leave
a message indicating your time availability and a phone number
where I can reach you and leave a voicemail message if necessary.
My assistant is Nancy Donovan, 325 Boalt Hall, X20503.
A list of topics, dates, and guest speakers for the course,
including the reading assignments for the first two weeks,
follows. They are all subject to change. Please note the
important reading assignment for the first class.
Week 1 (Jan. 13, 2015): Introduction: the distinctive character,
evolution, and challenges of mass torts
Linda S. Mullenix, MASS TORT LITIGATION (2d ed. 2008), pp.
2-20,31-35,45-53
Kai Erikson, EVERYTHING IN ITS PATH (1976), pp. 252-59
Schuck, "Mass Torts: An Institutional Evolutionist
Perspective," 80 Corn. L. Rev. 941-962 (1995)
Week 2 (Jan. 20): Special theories of liability, defense, and
damages
[to be corrected]
Week 3 (Jan. 27): Claims aggregation
Guest: Prof. Francis E. McGovern, Duke University Law
School
Richard A. Nagareda et al., The Law of Class Actions and
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Other Aggregate Litigation (2d ed., 2013), pp. 25-92 (class

actions),381-404 (CAFA, MMTJA, and MDL), 577-86 (quasi-class
actions, bellwether trials). Also, corresponding pages from
Nagareda et al., 2014 Supplement)

Week 4 (Feb. 3: Epidemiology and scientific evidence

Guest: Prof. Art Reingold, UCB School School of Public
Health
In re TMI Litigation Cases Consolidated II, 1996 WL 12079
(M.D. Pa. 1996) (excerpts)
Feinstein, Scientific Standards in Epidemiological Studies
of the Menace of Daily Life, 242 Science 1257 (1988)
Ames & Gold, Environmental Pollution and Cancer: Some
Misconceptions, in Phantom Risk:Scientific Inference and the Law
(Foster et al., eds., 1993), pp. 153-81
Schuck, Agent Orange on Trial, pp. 226-44, 272, 311
Letter from Judge Jed Rakoff
Mullenix, supra, pp. 1179-1199
George, Johnson, A Cancer Cluster Is Tough To Prove, N.Y.
Times (Feb. 19, 2014)
Week 5 (Feb. 10): The government as regulator and party
Guest: Hon. Robert C. Longstreth, San Diego County Superior
Court
L. Jayson & R. Longstreth, Handling Federal Tort Claims,
Chapter 4, sections 4.01 through 4.11, pp. 4-1 through 4-12
(LEXIS/Mathew Bender 2014).
R. Longstreth, "Hurricane Katrina Litigation Against the
United States: The Fifth Circuit Closes A Briefly-Opened Window
For Recovery," 2012 Emerging Issues 6608 (LEXIS Dec. 20, 2012).
U.S. v. Gaubert, 499 U.S. 315 (1991)
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Sanchez v. United States, 671 F.3d 86 (1st Cir. 2012),

cert. denied, ___ S. Ct. ___ (Mar. 25, 2013)
In re KBR, Inc. Burn Pit Litigation, 744 F.3d 326 (4th
Cir. 2014), cert. denied, ___ S. Ct. ___ (Jan. 20, 2015)
Week 6 (Feb. 17): Proving the case: expert testimony; causation;
market share
Guest: Donald Arbitblit, Esq., Lieff, Cabraser, Heimann &
Bernstein(San Francisco)
Carlin v. Superior Court, (1996) 13 Cal.4th 1104, 56
Cal.Rptr.2d 162, 920 P.2d 1347
Cooper v. Takeda Pharmaceuticals America, Inc. 2013
Donald C. Arbitblit, Effective and Economical Use of
Experts and Consultants (article)
Schuck, Agent Orange on Trial, pp. 103-05, 226-44, 261-76,
300-01, 307-313
Week 7 (Feb. 24): Federal pre-emption; future claims;
settlement; cy pres distributions
Schuck, Agent Orange on Trial, Chapters 8, 10
Schuck, The Role of Judges in Settling Complex Cases: The
Agent Orange Example, 53 U. Chi. L. Rev. 337 (1986): just read
pp. 339-40 and 345-65
Schuck, Peter H. (2008) FDA Preemption of State Tort Law in
Drug Regulation: Finding the Sweet Spot, Roger Williams
University Law Review Vol. 13, Iss 1, Article 4, pages 73-78 and
87-102
Mullenix, supra, pp.100-129
Nagareda et al., supra, pp. 142-44 (more notes on
Stephenson decision)
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Nagareda et al., supra, pp. 524-33

Week 8 (Mar. 3): Transnational torts

Guest: Prof. William Dodge, UC Hastings
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)
In re Union Carbide Corp. Gas Plant Disaster at Bhopal,
809 F.2d 195 (2d Cir. 1987)
Excerpt on Bhopal from Vagts, Dodge, Koh & Buxbaum,
Transnational Business Problems (5th ed. 2014)
Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014)
(feel free to skim it in conjunction with Prof. Dodge's blog post
item (just below), which contains hyperlinks that you may want to
follow)
William Dodge, International Comity Run
Amok<http://justsecurity.org/19640/international-comity-runamok/>, Just Security (Feb. 3, 2015.

Week 9 (Mar. 10): Creating and organizing the case: financing

and counsel fees; ethics; secrecy
Guest: Elizabeth Cabraser, Esq., Lieff, Cabraser,
Heimann & Bernstein (San Francisco)
United States District Court Southern District of New York
in re: General Motors LLC Ignition Switch Litigation, Order 25.
Please skim the appendices to Order 25.
United States District Court Southern District of New York
in re: General Motors LLC Ignition Switch Litigation, Order 34.
United States District Court Southern District of New York
in re: General Motors LLC Ignition Switch Litigation, Order 35.
Schuck, Agent Orange on Trial, Chapters 3, 5, 6 (some
already assigned for previous weeks)
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Schuck, Agent Orange on Trial, pp. 120-24, 194-204, 224-26,

301, 303-04, 312-13
Mullenix, Mass Tort as Public Law Litigation:
Misplaced, 88 NW. U.L. Rev. 579, 582-88 (1994)

Paradigm

Week 10 (Mar. 17): Bankruptcy

Guest: Mark Plevin, Esq., Crowell & Moring (San Francisco)
NOTE THAT THERE ARE TWO CLASSES THIS WEEK, AND YOU ARE
REQUIRED TO ATTEND BOTH
11 USC 524(g) and (h)
Nagareda, supra, p. 612-640
Mullenix, supra, p. 484-493
In re Johns-Manville, 68 B.R. 618 (Bankr. SDNY 1986), affd,
843 F.2d 636 (2d Cir. 1988). [only Judge Lifland's attached
opinion]
Plevin, Epley & Elgarten, The Future Claims Representative
In Prepackaged Asbestos Bankruptcies: Conflicts of Interest,
Strange Alliances, and Unfamiliar Duties for Burdened Bankruptcy
Courts, 62 NYU An. Survey of American Law 271-293 (2006). [only
Part I of the article]
In re Energy Futures Holding Corp., 522 B.R. 520 (Bankr. D.
Del. 2015).
Plevin, Davis, Yoon & Suarez, Where Are They Now, Part 7,
Mealeys Asbestos Litigation Report [on how frequently 524(g) is
used].

Week 10 (Wednesday, Mar. 18*): Case management; claims

valuation; claims administration
Guest: Kenneth R. Feinberg, Esq.
*Note that this will be a Wed. pm class (6:45 pm in Room
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170) in addition to our regularly scheduled class.

Feinberg, Who Gets What: Fair Compensation after Tragedy
and Financial Upheaval (Public Affairs 2012) [Chapter 6 and
Epilogue]

Schuck, supra, Agent Orange on Trial, Chapter 6

Week 11 (Mar. 31): Insurance

Guest: Philip R. Matthews, Esq., Duane Morris (San
Francisco)
Abraham, Kenneth S., Essays, The Maze of Mega-Coverage
Litigation, 97 Colum L Rev, 2102-2116
Armstrong World Industries, Inc. v. Aetna Cas. & Surety Co.,
Ct. App. Cal. 1st Dist., 45 Cal. App. 4th 1; 52 Cal. Rptr. 2d 690
(1996)
Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App. 4th
715; 15 Cal. Rptr. 2d 815, Ct. App. 1st Dist. (1993)
Fuller Austin Insul. Co. v. Highlands Ins. Co., 135 Cal.App.
4th 958; 38 Cal. Rptr. 3d 716, Ct. of App. 2nd Dist. (2006)

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