9/11 Statistical Discovery

What’s going on with the 9/11 “First Responder” cases these days?

I just saw the following article in NYLJ – “Plan Implemented to Resolve Complex Suits in World Trade Center Cleanup.”  The special masters who are creating this plan are two eminent mass tort scholars: Aaron Twerski (formerly dean of Hofstra Law and now back on the faculty at Brooklyn) and James Henderson (on the faculty at Cornell Law).   The plan involves creating a database of all the plaintiffs, and then conducting in depth discovery of a selected number of them to get a sense of how the cases develop, with the ultimate view of either having trials or settling the cases.  Here is a description of the special masters’ plan from the NYLJ article:

The plan divides the 9,090 cases into five groups, running from thefirst wave of cases filed to the last. The first four groups willcontain 2,000 cases each. The fifth group will contain the remainderand any after-filed cases.

The special masters and counsel for both sides prepared severitycharts that grade a person’s condition on a scale from zero to four.They also selected six major disease categories in which to group theillnesses.

The plan kicked off on Jan. 1 and within 40 days, plaintiffs in thefirst group of 2,000, Group A, completed a subset of the data fieldsthat detailed their disease rankings, duration of exposure at GroundZero and pre-existing disorders.

Ten days later, the special masters selected from this group the 200cases ranked most severe, 25 additional cases for diseases that are notnecessarily included in the severity chart, and an additional 400 casesat random.

The database for the 200 most severe cases and the 25 additionalcases will be completed by April 1. Within five days, both sides andthe judge will select the first six sample cases.

Completion of the database for the 400 cases chosen at random is duein late May, after which each party will choose two more cases and thejudge picks another two. Those 400 cases will proceed along ondiscovery only, with no schedule set for motion or trials.

I haven’t seen whether the six sample cases that were to be selected in April actually were selected, but will post then I find out.  Judge Hellerstein, who is overseeing these cases, is quoted in the article as saying of the methodology: “”It allows the parties to get a good sense of the strengths and weaknesses of all the cases.”

This approach shares some similarities with the bellwether trials procedure I describe in a recent article.  (See Lahav, Bellwether Trials, available on SSRN).  What is interesting about this form of statistical adjudication is that it addresses the discovery phase and illustrates the extent to which discovery really makes or breaks a litigation, rather than trial. 

ADL