Watson v. Shell Oil Co.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3449

TROY WATSON, ET AL.,
Plaintiffs-Appellees,

versus

SHELL OIL COMPANY and
BROWN & ROOT, U.S.A., INC.,
Defendants-Appellants.

* * * * *

ROBERT ADAMS, SR., ET AL.,
Plaintiffs-Appellees,

versus

SHELL OIL COMPANY and
BROWN & ROOT, U.S.A., INC.,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Louisiana

(December 7, 1992)

Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit
Judges.

POLITZ, Chief Judge:

Shell Oil Company and Brown and Root, U.S.A., Inc., defendants

in this mass-tort class action, have permissibly appealed
interlocutory orders in this diversity suit. The orders at issue

define the class and class issues, designate class representatives,

and set a trial plan. Finding neither error nor abuse of

discretion, for the reasons assigned we affirm the proposed trial

plan.

I. Background

This litigation arises out of an explosion at Shell's

manufacturing facility in Norco, Louisiana. At approximately 3:30

a.m. on May 5, 1988, failure of a pipe elbow, allegedly fabricated

and installed by Brown & Root, permitted the escape of a vapor

cloud of combustible gases. The vapor ignited and a massive

explosion ripped through the plant, causing extensive damage both

on the plant site and in the surrounding communities. That same

morning the instant federal class action suit was filed. During

the next week class action suits were filed in Louisiana state

courts and were removed to federal court. The claims against Shell

are founded on Louisiana law theories of negligence, strict

liability and intentional tort. Plaintiffs assert claims in

negligence and strict liability against Brown & Root.1 Plaintiffs

also seek punitive damages against both defendants.2

1
See La. Civ. Code Ann. arts. 2315, 2316, 2317, 2322 (West
1979 & Supp. 1992).
2
See La. Civ. Code Ann. art. 2315.3 (West Supp. 1992).
After certifying the orders on appeal pursuant to 28 U.S.C. §
1292(b), the district court granted summary judgment in favor of
Brown & Root on plaintiffs' strict liability and punitive damages
claims. See In re Shell Oil Refinery, 769 F. Supp. 214 (E.D. La.
1991) (punitive damages); In re Shell Oil Refinery, 765 F. Supp.
324 (E.D. La. 1991) (strict liability). As the district court
did not certify those rulings for interlocutory appeal, they are

2
 The actions were consolidated and referred to a magistrate

judge with instructions to conduct an evidentiary hearing and to

submit a report and recommendation regarding designation of class

representatives and subclass definitions. The district court

substantially adopted the magistrate judge's recommendations,

certified the litigation as a class action under Fed. R. Civ. P.

23(b)(3), defined the plaintiff class,3 and, pursuant to Fed. R.

Civ. P. 23(c)(4), defined the "outside the gate" and "inside the

gate" subclasses ("Subclass A" and "Subclass "B", respectively).4

not now before us.
3
The district court defined the plaintiff class as:

All persons or entities who were physically
present or owned property within the Parishes of
St. Charles, St. John the Baptist, St. James,
Orleans, or Jefferson on May 5, 1988, and who
sustained injuries or damages as a result of the
explosion at the Shell Oil Refinery in Norco,
Louisana.

See In re Shell Oil Refinery, 136 F.R.D. 588, 590 & n.1
(E.D. La. 1991).
4
See id. Subclass A is defined as:

Those persons or entities having claims for
damages or injuries caused by the explosion
on the premises of the Shell Oil Company
Refinery at Norco, Louisiana, on May 5, 1988,
and who or which own property, or operated
businesses, or were physically present within
the area encompassed by the jurisdictional
limits of the United States District Court
for the Eastern District of Louisiana, at the
time of the explosion,

Subclass B is defined as:

Those persons having claims for injuries to
or death of employees at Shell Oil Company,
or contractors thereof, sustained in the

3
Subclass A includes in excess of 18,000 claimants.5 Subclass B has

sixteen Shell employee claimants.6 The district court established

notification and opt-out procedures and approved a Plaintiffs'

Legal Committee to represent the class.

The district court identified as liability issues common to

both subclasses the determination of fault: (1) as it relates to

compensatory damage claims, and (2) whether it is sufficient to

warrant imposition of punitive damages. As to Subclass B only, the

court identified as additional issues: (1) whether the fault of

Shell Oil or any other person claiming benefit of workers

compensation immunity was intentional thus obviating the immunity,

and (2) whether punitive damages are available if workers

compensation is the exclusive remedy.7 The district court

thereafter established a procedure for identifying absent class

members and obtaining information relating to their claims.

After extensive briefing by the parties, the district court

course of their employment and caused by the
explosion on the premises of the Shell Oil
Company Refinery at Norco, Louisiana, on May
5, 1988, to the extent that such claims may
be subject to the exclusion of the remedy of
the Louisiana Workman's Compensation Act.
5
Shell has conceded negligence liability under La. Civ. Code
art. 2316 to any member of subclass A who proves damages legally
caused by the May 5 explosion.
6
See In re Shell, 136 F.R.D. at 590 n.3. Shell informs that
persons within Subclass B have brought fourteen personal injury
claims and six wrongful death claims.
7
See In re Shell, 136 F.R.D. at 590.

4
issued orders detailing a four-phase plan for trial.8 In Phase 1

a jury would determine common issues of liability.9 If the jury

found punitive damage liability it would then perform the Phase 2

function and determine compensatory damages in 20 fully-tried

sample plaintiff cases.10 Based on the findings in these cases, the

jury would then establish the ratio of punitive damages to

compensatory damages for each class member. If the jury finds no

punitive damage liability in Phase 1, Phase 2 is to be omitted.

In Phase 3, a different jury is to resolve issues unique to

each plaintiff's compensatory damage claims, e.g. injury,

causation, and quantum. Phase 3 calls for trials in waves of five,

scheduled according to a format based upon factors,11 including

location of the injured person or property at the time of the

explosion and extent and nature of the damages. The district court

anticipates that "after several waves are tried, a reasonable

judgment value for each category of claims would emerge so as to

8
See id. at 593-96.
9
We previously approved this mass tort case procedure in
Jenkins v. Raymark Inds., Inc, 782 F.2d 468 (5th Cir. 1986).
10
Under the Plan the district court would select a group of
100 claimants at random. The three parties would then designate
claimants they would accept as having "representative claims."
The first 20 three-way matches would serve as plaintiffs in the
punitive damages trials. Should the parties fail to agree to
twenty from the first group, the district court would select at
random additional groups of 100 from the remaining claimants.
11
The district court apparently intends to employ a court
selected statistician to analyze the damage claims for the
purpose of establishing these groupings.

5
facilitate settlements."12 In Phase 4 the district court is to

compute, review, and award punitive damages, if any are established

in Phase 1, for the plaintiffs awarded compensatory damages.

Based on the district court's certification under 28 U.S.C.

§ 1292(b), Shell and Brown & Root timely sought leave for an

interlocutory appeal which we granted.

II. Analysis

We revisit the problem of mass tort litigation recently

addressed.13 The instant litigation, involving claims by more than

18,000 plaintiffs, starkly presents the nearly insurmountable

problems of balancing procedural fairness with judicial efficiency

in the management of mass tort litigation. At the threshold we

must note that in many respects this appeal presents only the broad

outlines of the district court's trial plan and, to a large extent,

appellate review must await its implementation. Keenly mindful of

the magnitude of the mass litigation problem, its increasing

frequency, and the need for innovative solutions, we review the

present challenges to the district court's orders.

A. The Trial Plan: Punitive Damage Concerns

1. Applicability of Fibreboard

Shell and Brown & Root first argue that Phase 2 violates

principles enunciated in In re Fibreboard Corp. In that case the

12
In re Shell, 136 F.R.D. at 596.
13
See, e.g., In re Fibreboard Corp., 893 F.2d 706 (5th Cir.
1990); Jenkins, supra.

6
panel reluctantly vacated a trial plan in mass tort litigation

involving the claims of 3,031 plaintiffs asserting asbestos-related

injuries. The dispute in Fibreboard centered on the aspect of the

plan that called for a jury to ascertain damages for the entire

class on the basis of a trial of the specific claims of eleven

class representatives, together with such evidence as the parties

presented about the claims of thirty illustrative plaintiffs, and

the testimony of experts about damages to the entire class. We

found the Fibreboard scheme infirm for two reasons. First, the

proposed plan failed to require each claimant to prove both

causation and damages, as required by Texas law. Second, because

the proceeding was to ascertain damages for a group of claimants

who suffered widely divergent injuries essentially on the basis of

a statistical profile, the plan failed to qualify as a "trial" in

the sense contemplated by Article III of the Constitution, and was

thus beyond the authority of an Article III court. We find the

instant case distinguishable from Fibreboard because the Phase 2

jury is to make a determination about punitive damages in a mass-

disaster context, rather than compensatory damages in products

liability litigation.

The law permits punitive damage awards primarily to punish the

defendant guilty of egregious misconduct and to deter such conduct

in the future.14 It need hardly be emphasized that the punitive

14
See, e.g., Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S.
___, ___, 111 S. Ct. 1032, 1042, 113 L. Ed. 2d. 1, 21 (1991);
Creamer v. Porter, 754 F.2d 1311, 1319 (5th Cir. 1985) (federal
law); Karavokiros v. Indiana Motor Bus Co., 524 F. Supp. 385, 387
(E.D. La. 1981) (citing Restatement (Second) of Torts § 908

7
damages inquiry -- unlike that for compensatory damages -- focuses

primarily on the egregiousness of the defendant's conduct.15 As the

trial court aptly noted, the degree of culpability underlying a

single act -- and hence the propriety of imposing punitive damages

as a result of that act -- should not markedly vary in a setting

such as is here presented, when considered with respect to

different plaintiffs. Because of this minimal variance, assessing

the propriety of punitive damages on the basis of the claims of a

cross-section of the plaintiff class should not, in the words of

Fibreboard, require "lift[ing] the description of the claims to a

level of generality that tears them from their substantively

required moorings."16 That the Phase 2 jury will consider only

punitive damages in a mass tort case materially distinguishes this

case from Fibreboard.17

(1965)); Sharp v. Daigre, 564 So. 2d 303, 303 (La. 1990)
(dissenting opinion); Creech v. Aetna Cas. & Sur. Co., 516 So.2d
1168, 1173 (La. App. 1987), writ denied, 519 So.2d 128 (La.
1988); W. Page Keeton, et al., Prosser & Keeton on Torts, § 2, at
9 (5th ed. 1984).
15
See Jenkins, 782 F.2d at 474.
16
Cf. Sterling v. Velsicol Chemical Corp., 855 F.2d 1188,
1197 (6th Cir. 1988) (issue of defendant's liability properly
resolved on class-wide basis where single course of conduct
identical for each plaintiff caused disaster).
17
Shell accurately notes that the Phase 2 jury will, in
making its punitive damages determination, consider a
"statistical profile" of the claims asserted by the entire class.
However, we have previously recognized that ascertainment of
punitive damage liability in a class action on the basis of
evidence concerning the claims of representative plaintiffs and
statistical information about the entire class, before litigation
of individual damage claims, presents no constitutional infirmity
where the court adequately apprises the jury of the nature of the
information before it. See Jenkins, 782 F.2d at 474. Because

8
 More importantly, the Phase 2 jury is not to extrapolate

punitive damages but, rather, is to determine a basis for

assessment of punitive damages in the form of a ratio. One might

argue that the logic of Fibreboard, if not its narrow holding,

prohibits use of the Phase 2 procedure to determine quantitatively

the amount of actual punitive damages. But Phase 2 purports to do

no such thing.18 Unlike the plan in Fibreboard, Phases 2 and 3

appropriately enforce the Louisiana law requirement that a claimant

must prove both causation and damage to recover compensatory and

punitive damages.19

2. Applicability of Haslip

Shell and Brown & Root also claim that Phase 2 runs afoul of

the latest Supreme Court teaching on punitive damages, Pacific

Mutual Life Insurance Co. v. Haslip.20 Essentially reiterating

Fibreboard involved use of statistical profiles for quantitative
assessment of compensatory damages rather than for determination
of a basis on which to assess punitive damages, we cannot
conclude, as Shell urges, that Fibreboard overruled Jenkins.
18
Notably, the district court's plan, in compliance with
Fibreboard, 893 F.2d at 711-12, permits no extrapolation of
individual compensatory damage claims: the parties must try in
Phase 3 any claims not settled.
19
The similarity of each plaintiff's claim for punitive
damages further underscores this point, because the proof offered
in Phase 2 should apply to the punitive damage claims of all
plaintiffs. To the extent that class members' punitive damage
claims differ, we note the generality of the plan, and the
potential for further refinement when the district court
implements it. Such refinement might, for example, take the form
of setting different ratios for different types of claims.
20
Supra, n.14.

9
their Fibreboard arguments, Shell and Brown & Root claim that

because the Phase 2 plan determines damages on the basis of class

representation and extrapolation it violates the Haslip due process

requirements. Shell also argues that the Phase 2 plan violates the

rule that punitive damages must bear a reasonable relationship to

compensatory damages.

Shell and Brown & Root at best present premature Haslip

concerns. Haslip, while not a class action or a case purporting to

address the concerns which might arise relative to punitive damages

in a case involving more than 18,000 compensatory claims, does

stand for the general proposition that a punitive damage award by

a properly instructed jury, where there is adequate post-verdict

review, will not violate due process.21 In addition to recognizing

the fundamental purpose of punitive damage awards -- to punish the

defendant and deter future misconduct -- Haslip appears to require

that the award have a reasonable basis in the conduct and degree of

fault of the defendant, and an understandable relationship to

compensatory damages.22 We cannot, at this early stage, conclude

that the plan at bar will not satisfy these criteria. The proposed

procedure does not provide for the precise mechanisms of the Phase

2 punitive damage trial nor does it detail the Phase 4 judicial

review. However, the absence in Louisiana law of a scheme for

review of punitive damages awards such as that approved in Haslip

21
See id. at __, 111 S. Ct. at 1044-45, 113 L. Ed. 2d at 20-
22.
22
See id. at ___, 111 S. Ct. at 1045, 113 L. Ed. 2d at 22.

10
should not impede the district court's Erie-mandated effort to act

as a dutiful Louisiana trial court mindful of the Supreme Court's

teaching in Haslip. We hold that Phase 2 of the instant plan, on

its face, adequately satisfies Haslip's command.

B. Phase 3 Trial Rules and Procedures

Shell and Brown & Root maintain that the Plan is

constitutionally unsound because the district court intends to

limit traditional trial rules in Phase 3. The district court

indicates that Phase 3 will "not necessarily [involve] full-blown

trials," and that "traditional trial procedures, methods of proof,

and evidentiary rules will be abbreviated and simplified to shorten

trial time.23 Further quoting Newberg on Class Actions, the trial

court states that, in class actions, "[p]leadings, discovery, and

strict application of rules of evidence associated with normal

adjudication processes for individual lawsuits are often replaced

with greatly simplified, informal procedures, often summary in

nature . . . ." Appellants insist that this language evinces an

intent to limit unduly the application of the Federal Rules of

Civil Procedure and Federal Rules of Evidence in Phase 3

proceedings.

At this point we can only speculate about how the district

court will fill in the broad outlines of its plan in Phase 3. Such

speculative concerns do not, however, present an issue ripe for

23
In re Shell, 136 F.R.D. at 596 (citing H. Newberg, Newberg
on Class Actions, §§ 9.63, 9.64).

11
review at this time. While we do not read the plan, as a whole, as

indicating the district court's intent to act impermissibly, we

simply remind all that the federal rules have the force of law.24

The secondary source quoted by the district court offers no

credible support for the proposition that our rules of evidence and

procedure may be altered or diminished in any manner, in actions of

this kind, other than those recognized to be within the sound

discretion of the district court. We express our confidence that

the district court will adhere to acceptable norms in the shaping

of the rules to meet the judicial crisis presented by the instant

litigation.

C. Class Certification

Brown & Root vigorously opposes litigation of the claims as a

class action. Relying on the district court's grant of summary

judgment in its favor on the strict liability and punitive damage

claims, Brown & Root argues that subject matter jurisdiction

concerns militate against maintenance of a class action against it,

and that such a class action would violate Fed. R. Civ. P. 23.

Brown & Root thus suggests that we should sever it from this class

action, and permit it to defend the negligence claims in separate

proceedings. These contentions lack merit. We review district

24
Societe Nationale Industrielle Aerospatiale v. United
States District Court, 482 U.S. 522, 533, 107 S. Ct. 2542, 2550,
96 L. Ed. 2d 461, 477 (1987); 4 C. Wright & A. Miller, Federal
Practice & Procedure: Civil § 1030, at 125 (2d ed. 1987); See 28
U.S.C § 2072.

12
court class certification decisions only for abuse of discretion;25

we find no such abuse here.

1. Federal Subject Matter Jurisdiction -- Amount in Controversy

Brown & Root urges that the Supreme Court's holding in Zahn v.

International Paper Co.26 counsels against class certification

against it. Zahn teaches that each plaintiff in a class action

under Fed. R. Civ. P. 23(b)(3), where subject matter jurisdiction

is founded on diversity of citizenship, must independently meet the

28 U.S.C. § 1332 jurisdictional amount requirement.27 Brown & Root

contends that the claims of a substantial number of Subclass A

plaintiffs fall short of the required amount in controversy because

they assert only claims for fright and minor property damage, and

because the district court has granted summary judgment for Brown

& Root on the punitive damages. Because the Zahn rule will require

dismissal of the claims against it by an unknown number of Subclass

A members, it argues that we should limit the class action

proceedings for that subclass to claims against Shell.

Brown & Root fails to consider four principles which guide

application of the ad damnum requirement. The Supreme Court has

25
Jenkins, 782 F.2d at 472 (citing Horton v. Goose Creek
Independent School District, 690 F.2d 470, 483 (5th Cir. 1982),
cert. denied, 463 U.S. 1207, 103 S. Ct. 3536, 77 L. Ed. 2d 1387
(1983); Boggs v. Alto Trailer Sales, Inc., 511 F.2d 114, 117 (5th
Cir. 1975)).
26
414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973).
27
As this action was commenced prior to May 18, 1989, the
$10,000 amount in controversy requirement in effect before the
1988 amendments to 28 U.S.C. § 1332 applies.

13
held the amount claimed in good faith by initial pleadings controls

the question of amount in controversy.28 Further, it must appear

to a legal certainty that the claim is for less than the

jurisdictional amount before a court may dismiss for lack of

quantum. Third, subsequent events generally will not deprive the

federal court of its jurisdiction.29 Finally, when a claim includes

compensatory and punitive damages, both must be considered in

determining the amount in controversy.30

The complaints in this action seek over $32,750,000,000 in

damages -- far in excess of $10,000 then required for each member

of Subclass A.31 Further, because Louisiana law permits all

plaintiffs proving actual damages to share in any punitive damages

award,32 the claim for punitive damages increases the amount in

controversy for each class member. There is no suggestion that

plaintiffs made their damage claims other than in good faith.

There is no record basis upon which such a finding can be made at

28
See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303
U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938).
29
See id.; Seafoam, Inc. v. Barrier Systems, Inc., 830 F.2d
62, 66 (5th Cir. 1987).
30
Bell v. Preferred Life Assur. Soc., 320 U.S. 238, 64 S.Ct.
5, 88 L.Ed. 15 (1943).
31
A review of the damages sought in the instant action finds
one complaint seeking $30,000,000,000 (Watson), another seeking
$2,750,000,000 (Cauley), and a third, the "Master Pleadings,"
seeking unspecified and unlimited punitive damages. The essence
of Shell's argument is that 18,000 class members multiplied by
$10,000 is only 180 million dollars, an amount well below the
total of the good faith ad damnum prayers.

32
See La. Civ. Code Ann. art. 2315.3 (West Supp. 1992).

14
this time. The district court here has not, in contrast to the

Zahn trial court, found to a legal certainty that any plaintiff had

suffered damages of less than $10,000. Brown & Root's

jurisdictional argument based on quantum fails.

The dismissal of the punitive damages claims against Brown &

Root does not alter this conclusion. In Seafoam we found that

dismissal by summary judgment of one of plaintiff's claims as time

barred did not warrant dismissal of the other for lack of subject

matter jurisdiction, even though the remaining claim was for less

than the jurisdictional amount. The summary judgment in favor of

Brown & Root on the punitive damages issue presents an analogous

situation. We therefore conclude that consistent with Zahn, Red

Cab and Seafoam, the voiced subject matter jurisdiction concerns do

not militate against class certification of the claims against

Brown & Root.

2. Numerosity of Subclass B

Pointing to the fact that Subclass B contains only 16

plaintiffs, Brown & Root argues that this subclass fails the

numerosity requirement of Rule 23(a)(1). That requirement imposes

no mechanical rules,33 turning instead on the practicability of

joining all class members individually.34 We previously have noted

33
General Telephone Co. v. Equal Employment Opportunity
Comm'n, 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319
(1980).
34
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038
(5th Cir. July 1981) (citations omitted).

15
that while the number of claimants is relevant to this

determination, a court also may consider other factors, including

the nature of the action. In the instant case, the district

court's class certification includes Subclass B in a larger class

of more than 18,000 plaintiffs for the purposes of litigating

liability issues with respect to Shell and Brown & Root.

Considering the nature of this action, we cannot say that

identifying Subclass B for the purpose of litigating the related

issue of Shell's liability for intentional tort, amounted to an

abuse of the trial court's broad discretion.

3. Predominant Common Issues

Brown & Root, citing Jenkins, urges that the absence of issues

common to both defendants requires its dismissal from the class

action. Brown & Root misperceives controlling law. The

commonality requirement of Fed. R. Civ. P. 23(b)(3) is intended to

ensure that the disallowance of individual trials is warranted by

a sufficient gain in efficiency.35 Rule 23(b)(3) accordingly

requires that "resolution of the common questions affect all or a

substantial number of the class members."36 The commonality

requirement focuses on the common issues relevant to claims by or

against the class members; it does not require that all issues be

common to all parties. In the litigation at bar the claims of all

35
Jenkins, 782 F.2d at 472; 7A C. Wright & A. Miller, supra,
§ 1777, at 519.
36
Jenkins, 782 F.2d at 472 (emphasis added).

16
plaintiffs require resolution of Shell's liability for punitive

damages and of Brown & Root's liability for negligence, both

arising out of the same event.37 That the plaintiffs assert

different theories against Shell and Brown & Root does not obviate

the commonality of issues.

Brown & Root further suggests that the class issues thus far

identified will not "predominate" as required by Fed. R. Civ. P.

23(b)(3). In the context of mass tort litigation, we have held

that a class issue predominates if it constitutes a significant

part of the individual cases.38 The class issues to be determined

by the Phase 1 jury form integral elements of the claims asserted

by each of the more than 18,000 plaintiffs.39 There can be no

serious contention that the district court abused its discretion in

determining that these issues predominate for the purpose of class

certification.

37
Brown & Root also points to Yandle v. PPG Industries,
Inc., 65 F.R.D. 566 (E.D. Tex. 1974) and the Advisory Committee
note to Fed. R. Civ. P. 23(b)(3) in support of its proposition
that, because mass tort cases often present disparate issues,
they are generally inappropriate for class action litigation.
These authorities have no application to the instant litigation
in which many people suffered injury resulting from a common
disaster and seek recovery on identical theories.
38
Jenkins, 782 F.2d at 472.
39
To the extent that Brown & Root argues that the main issue
in this litigation is Shell's liability for punitive damages and
that the issue of its liability does not predominate, Brown &
Root's argument fails to persuade. The plaintiff class has
asserted claims for negligence against Brown & Root. The
plaintiffs must therefore prove Brown & Root's negligence and
even though they may be more interested in punitive damages from
Shell than in recovering compensatory damages from Brown & Root,
issues with respect to Brown & Root predominate for the purposes
of Fed. R. Civ. P. 23(b)(3).

17
4. Superiority

Brown & Root finally contends that class proceedings are not

a "superior" means of litigating its negligence liability, as

required by Fed. R. Civ. P. 23(b)(3). Pointing to In re

Tetracycline Cases,40 Brown & Root argues that the variety of class

issues will confuse the Phase 1 jury. It further suggests that

because it will seek contribution from other contractors, the class

action is not a superior means for litigating its negligence

liability. Brown & Root insists that class litigation will not

reduce complexity and will not substantially reduce the number of

issues left for decision in the Phase 3 trials. These arguments

fail to persuade.

The proposed Phase 1 should not unduly confuse the jury. This

litigation differs markedly from toxic tort cases such as Jenkins,

Fibreboard, and Tetracycline, in which numerous plaintiffs suffer

varying types of injury at different times and through different

causal mechanisms, thereby creating many separate issues. The case

at bar actually will present fewer and simpler issues to the Phase

1 jury. Further, we cannot find that the trial court abused its

discretion in opting to utilize the class action in this case

simply because Brown & Root may seek contribution from other

contractors. Finally, because of the great import of the class

issues to the claims of each plaintiff, we cannot agree with

defendants' contention that class litigation will not reduce the

number of issues or complexity in the Phase 3 trials. To the

40
107 F.R.D. 719 (W.D. Mo. 1985).

18
contrary, after the Phase 1 resolution, only causation and damages

will remain in each plaintiff's claim against Brown & Root. In

light of the massive proportions of this litigation, and the need

to reduce the systemic burden it will impose, we cannot conclude

that the district court abused its discretion in fashioning this

class-litigation format.

III. Conclusion

In Fibreboard we reluctantly issued a writ of mandamus,

vacating a portion of the trial plan in that case. In so doing,

however, we closed with a salute to the trial judge:

We admire the work of our colleague, Judge Robert
Parker, and are sympathetic with the difficulties he
faces. This grant of the petition for writ of mandamus
should not be taken as a rebuke of an able judge, but
rather as another chapter in an ongoing struggle with the
problems presented by the phenomenon of mass torts.41

Judge Parker had 3,031 cases consolidated in one action. Judge

Henry Mentz has more than 18,000 plaintiffs in the case now before

him. We express our admiration for the manner in which Judge

Mentz, aided by a very able magistrate judge and equally able trial

counsel, has woven our mass tort case law into an acceptable and

workable trial plan. We AFFIRM the district court's orders

establishing that trial plan and return this case to the district

court for further proceedings.

41
Fibreboard, 893 F.2d at 712.

19