Report to the Congress from the Presidential Commission on Catastrophic Nuclear Accidents

CHAPTER TWO
Procedure for the Resolution of Price-Anderson Claims

      Congress directed the Commission to consider whether cases arising under the Act should be managed administratively or judicially and to develop procedures for handling claims. This chapter responds to that direction and proposes a plan for deciding Price-Anderson cases that the Commission believes is equitable and efficient, that will enjoy a high degree of public acceptance, that will keep transaction costs low, and that bases recovery on the best medical and scientific information available.

      The Commission began its deliberations by examining a hypothetical large nuclear occurrence giving rise to significant numbers of cases, involving substantial issues.1 It then identified the areas that would, under any compensation system procedure, require attention. These are:

        provision for emergency payments,

        initiation of suits (filing and registration issues),

        consolidation of cases (venue and choice of law issues),

        generic determinations (use of scientific expertise),

        resolution of individual actions,

        determination of compensation for nonpecuniary injuries, and

        resolution of punitive damage claims.

      Focusing on this list, the Commission next reviewed the experience that the tort system has encountered in mass accident cases. It found that although the current legal rules have been shown to be flexible, judicial disposition of large-scale cases has been costly and protracted. Furthermore, the techniques that have worked in the past may be less available in the Price-Anderson context than they have been in others. For example, while the class action has often proved to be a valuable tool for settling mass accident cases, this device may be of limited use here. Many nuclear claims will be large in relation to the transaction costs of proceeding individually. At least for those accidents declared to be ENOs, technically complex and expensive proof of causation and fault will not be required.2 Furthermore, the interim payment features of the statute provide relief to parties while they pursue their rights.3 Accordingly, these claimants may not need to pool their resources by joining a class.4 By the same token, because the Act was designed to remove fears of insolvency,5 bankruptcy — another avenue by which several mass torts have been resolved — may likewise be unavailing.6

      Nonetheless, based on the testimony presented, the Commission reasoned that a judicial approach to the Act is likely to enjoy greater credibility and public acceptance than an administrative model. Accordingly, it developed a procedure for distributing Price-Anderson funds that utilizes some of the efficiency and cost-containing features of administrative adjudication, but placed it within a judicial framework.

      This chapter is in three sections. The first describes the distribution plan recommended by the Commission and the amendments to the Act required for its implementation. This section should be read in conjunction with the second, which describes the alternative procedures considered and the reasons underlying the choices made. The third section proceeds from a different perspective; under the assumption that the Act might not be amended, it traces the extent to which the Commission's plan could be implemented under existing law.

I.   Summary and Recommended Plan

      The Commission recommends a tripartite judicial procedure, including a preliminary phase when claims are consolidated before a single decisionmaker, a second phase in which generic issues are identified and decided by the court with the assistance of relevant experts; and a third phase consisting of individualized informal procedures culminating in a right to binding arbitration or, if claimants so choose, to adjudication on a modified tort model.

    Phase One. In the first phase, claims are filed, removed and consolidated in a “central” federal court.

      A.   Jurisdiction; Applicable Law.

      1. Jurisdiction of all claims should be in the federal courts. Venue should be in a single federal court, chosen by the Multidistrict Litigation Panel (MDL).

        1. Claims arising out of the accident should give rise to a federal right of action to the exclusion of all state law rights and remedies.

        2. The federal right of action and all issues arising out of the pursuit of or defense against such asserted right should be governed by the terms of the statute supplemented by federal common law. In fashioning federal common law, the court should look to the policy of the Act, the direction in which the laws of the states are moving, reason, and experience.

        3. The waivers of defenses provisions of the current statute should be altered so that these defenses are waived whenever the criteria for invoking the plan have been met.

      2. To give preclusive effect to the resolution of generic issues, provision should be made for compulsory intervention by claimants who are not yet parties. The statute should provide for notice to all potential claimants and should advise them of the pendency of the federal court action, the jurisdiction of the court, the opportunity to intervene and be heard, and warn them that the court's determinations will have issue-preclusive effect in their own cases. Counsel should be appointed to represent absent classes of claimants.

      3. For accidents within the first two funding tiers, the contracts between the nuclear utility industry and their indemnitors ensure prudent management of the fund and administration of claims. With respect to accidents in which federal money is the source of compensation, the United States should, from the first dollar of liability, have the option of assuming the defense of the fund through its own attorneys or under contract with the insurance pools.

      4. Actions surpassing the trigger point that invokes the plan (see Chapter 1, above) should, from the first dollar of liability, be conceptualized as against the insurance fund, and captioned “In the Matter of the... Accident.”

      B.   Initial Responsibilities.

      1. The central court should ultimately supervise the interim payment features of the statute. Payments in accordance with conventional insurance practice in natural disasters should begin immediately after the accident; however, as soon as practicable, the nuclear insurance pools should prepare a plan for the continuation of such payments and should submit the plan for court review and approval. The court should have authority to modify the plan and, from time to time, to make further modifications on motion of any party or on its own motion. The court should appoint counsel and special masters to ensure participation by all segments of the affected communities. Emergency payments and payments later made under the court approved plan should not be binding settlement agreements. But these payments should be carried forward and used to offset the final settlement or resolution of the litigation that may follow.

      2. The court should supervise registration activities under the following guidelines:

        1. The court should, with the assistance of the relevant authorities, make a preliminary determination that the criteria for invoking the plan have been met (see discussion in Chapter I of the trigger point). This decision will be reviewed as part of the generic determinations described below.

        2. With the assistance of the relevant authorities, the court should make a preliminary determination as to the locus of radiation exposure and the threshold level of exposure that invoke the registration and medical monitoring procedures described below. These decisions will be reviewed and revised as part of the generic determinations described below.

        3. The court should appoint special masters to institute registration procedures. All individuals exposed to the threshold dose, all individuals within the area of exposure, and all individuals ordered evacuated by the relevant authorities must register and submit to blood sampling in order to preserve their claims, unless the court rules otherwise to make accommodations for religious beliefs or for other special circumstances. Any other individual may register and submit to blood sampling. Blood samples should be stored for analysis.

        4. The court should appoint special masters to prepare a listing of all geographic areas within the locus of exposure and a registry of all properties in the area and of the owners of such properties.

        5. The court should appoint a special master to oversee the establishment of emotional distress centers to offer immediate treatment to those who meet the criteria developed in Chapter 3.

      3. The statute should provide that civil actions may be commenced by filing a claim at the registry and that the registry will assume the duty of directing service of process to inform the defendants of the pendency of individual actions.

      4. All individuals and all property owners in the affected area should be notified by every practicable means that registration is a precondition to the maintenance of a claim for compensation.

    Phase Two. In the second phase, the court groups claimants by subclass (using, perhaps, registry information), identifies common issues, and holds generic hearings. Its decisions create rebuttable or conclusive determinations, as discussed below.

      A. Generic Determinations.

      1. Generically applicable determinations should be made by the federal court without a jury.

      2. With regard to each subclass affected by generic determinations, the court should appoint counsel for absentee claimants, including those who may have sustained latent injuries. Claimants can choose to be represented by their own attorneys or to proceed collectively through the court-assisted selection of a management committee.

      3. Generic determinations should take one of the following forms:

        1. One type of issue suitable for generic determination is the establishment by the court of a schedule of compensatory awards for nonpecuniary injuries. Congress should provide specific elements of such a schedule in accordance with the Commission's recommendations in Chapters 3 and 4. If these are not provided, Congress should instruct the court to make these determinations as a matter of law, binding on claimants in all subsequent proceedings, unless reopened as described below.

        2. A second set of issues suitable for generic resolution is proximate cause: deciding to the extent feasible whether, with respect to a given category of claims, the alleged harm is too hypothetical or speculative or the causal relation between the accident and the harm is too attenuated to require compensation. These issues should be decided by the court as a matter of law and should bind claimants in all subsequent proceedings, unless reopened as described below.

        3. A third type of issue that should be resolved generically is scientific/ medical in character. Examples include the preliminary determinations concerning trigger points and threshold levels of exposure. There is a large base of knowledge on these issues and a core of physicians and scientists with acknowledged expertise. To fully utilize these resources, the following procedure should be adopted:

          1. The court should request the National Academy of Sciences and local health associations (such as state medical societies and medical schools in the vicinity of the accident) to nominate recognized authorities in the fields of nuclear medicine, radiobiology, health physics, and other appropriate disciplines to serve on a Panel of Scientific Advisors (PSA) to advise the court as described below.

          2. In consultation with the PSA, the court should enter an order identifying the scientific and medical issues suitable for generic determination and direct the PSA to prepare a recommended determination of those issues.

          3. The PSA, meeting in subpanels presided over by legally trained, court-appointed special masters, should conduct oral hearings on these issues. The presiding officers should manage the hearing process to ensure an orderly submission of proof and to protect the rights of the parties. Interested claimants should have an opportunity to present evidence and argument.

          4. Following the conclusion of each hearing, the PSA subpanel should submit to the court its recommended determinations, describing clearly the basis of the determinations, and a record containing any material consulted and used by the panel in making its recommendations. The determinations and records should be open to the public. Dissents to the recommendations should be a matter of public record.

          5. The court should hold further hearings to consider de novo whether to accept, reject, or modify each PSA determination and should, in consultation with the relevant subpanel, prepare orders embodying the court's decisions. At these hearings, all parties should have an opportunity to present evidence and argument, including testimony of expert witnesses.

          6. The court's final determinations should be based on the best available scientific/medical knowledge and judgment, as tempered by value judgments which err on the side of public compensation.

          7. The court should, in each instance, specify whether a generic determination represents the clear understanding of the scientific community and give it conclusive effect in later proceedings unless reopened, or is based upon a lesser consensus and give it rebuttable effect in the later phases of the litigation. When the scientific community is in equipoise, the court should make rebuttable determinations on policy grounds that err on the side of public compensation.

      B.   Reconsideration.

      1. Because of the importance of generic determinations for the orderly, expeditious, and consistent resolution of numerous claims, there should be a right to an immediate appeal of the generic determinations to the court of appeals embracing the district where the central court is located. Further, the Supreme Court should handle the case on an expedited basis.

      2. Generic determinations should be subject to reconsideration by the central court on the basis of substantial new evidence or other good cause, such as the failure of a claimant who did not appear in the generic phase to receive notice of compulsory intervention. This is particularly important in the context of latent injuries.

      3. Because the locus of exposure and threshold of exposure were initially determined as a preliminary matter in order to facilitate commencement of registration, these two issues should be subject, as described above, to redetermination in the course of Phase Two.

    Phase Three. In the final phase, the parties receive individualized treatment on a multi-tier model.

      A.   Informal Proceedings.

      1. The court should encourage settlement offers. These should be based upon the generic determinations of Phase Two, which, at this stage in the proceedings, are binding on the litigants. Acceptance of such offers, which can involve a periodic payment schedule, would end the case with respect to submitted claims. All settlements should be registered with the court.

      2. For those parties who fail to settle independently, the court should create a set of dispute-resolution options administered by court-appointed special masters, assisted by Medical Examination Panels and Property Assessment Panels appointed by the court. Claimants should be required to utilize one of these options before they can demand formal consideration of their cases.

        1. Option 1. The court should develop a “short form” program permitting claimants who elect to do so to receive modest fixed payments for personal, business, and property losses based upon a minimal showing of injury. The court should appoint a special master to act as the Administrator of the program. The Administrator will base each award on a “Claimant Affidavit” in which the claimant attests to injury and describes with particularity the loss for which compensation is sought. The Administrator may, in addition, request additional information supporting the claim. In case of conflicting evidence, the Administrator may deny recovery and refer the claimant to Option 2.

          Acceptance of an Option I award should end the dispute only with respect to the claims upon which the award was based (personal injury, property damage, business loss). Acceptance will not preclude claims based on injuries manifested after acceptance. As these awards are intended to resolve claims efficiently and at low transaction costs, Option 1 awards should not be subject to challenge.

        2. Option 2. The court should appoint a Claim Master to evaluate claims and calculate individualized awards based on the following guidelines:

          1. Personal Injury Claims. Claims for injuries other am cancer and benign thyroid injuries will be compensated in accordance with the recommendations found in Chapter 3. Under this procedure, the Claim Master, with the advice of a Medical Examination Panel and the results of blood analyses, will base medical cost awards on proof of injury and expenses incurred. Awards for nonpecuniary losses will be based upon the schedule provided by Congress in accordance with the Commission's recommendations in Chapter 3 or adopted by the court in Phase Two, pursuant to congressional directive. Claims for emotional distress and fear of cancer will be made in accordance with the counseling and medical monitoring recommendations of Chapter 3. Claims for cancer and benign thyroid nodule injuries will be compensated in accordance with the proportionate recovery recommendations in Chapter 4.

          2. Business Losses. The Claim Master will, on the basis of business records and tax returns, calculate an award for those business losses that are found in Phase Two determinations to have occurred as a direct result of the accident.

          3. Property Damage. The Claim Master will, on the basis of evidence traditionally used in property damage claims and with the assistance of a Property Assessment Panel, calculate an award for that property found in Phase Two proceedings to have been lost - temporarily or permanently - as a direct result of the accident. Nonpecuniary injuries, such as claims for loss of community and for relocation allowances, will be compensated in accordance with the scheduling recommendations of Chapter 3.

            Acceptance of the Claim Master's award will end the dispute only with respect to the claims upon which the award was based. Acceptance will not preclude claims based on injuries manifested after acceptance. Option 2 awards am intended to reflect actual losses. Accordingly, it is anticipated that some litigants will challenge the Claim Master's recommendation in more formalized procedures.

      B.   Formal Proceedings.

      1. The court should appoint arbitration panels, supported out of Price-Anderson funds. Both claimants and defendants should have the option of rejecting informal awards in favor of binding arbitration, except that defendants cannot challenge the theory of proportionate recovery.

      2. Dissatisfied claimants may demand adjudication (as described below) in preference to binding arbitration and can opt for adjudication in the event that the defendant demands binding arbitration. However, Congress should arrange for the waiver of the defendants' right to adjudication. As with workers' compensation, waiver of this right can be seen as the quid pro quo for the adoption of a plan that expedites resolution of claims and reduces the risk of incurring high awards for intangible harms.

        1. Adjudications should take place in the central court.

        2. Claimants may request to have their cases heard by juries.

        3. These proceedings should be governed by federal statutory and common law, by the determinations deemed conclusive in Phase Two, and by the nonpecuniary loss schedules recommended in Chapter 3. At this stage, however, rebuttable determinations may be contested.7

        4. In these proceedings, claimants cannot rely on a theory of proportionate recovery, although they can introduce into evidence the causation information used in the course of generic proceedings to develop proportionate recovery schedules. Claimants can, however, ask the court to review the Claim Master's determinations and remand their cases to the Claim Master in cases where error is found. In this way, the availability of proportionate recovery is maintained.

        5. To preserve the objectivity of decisionmakers, the amounts available to claimants under the informal procedures should not be introduced into evidence. This amount should, however, be considered in determining the award of legal costs.

      3. Parties who elect to challenge the Claim Master's award but fail to better the award through adjudication should be required to shoulder court costs as well as their own counsel fees and their other costs, including those for witnesses, incurred in connection with the plenary adjudication. Other legal expenses, including the payment of experts used in Phase Two proceedings, should be made from the fund.

      4. Further, parties who elect to challenge the Claim Master's award in court should have their awards reduced to the extent that there has been recovery from other sources such as health and disability insurance policies, unemployment benefits, workers' compensation, or other private or governmental schemes. However, the awards should not be reduced for recovery from life insurance policies. This reduction should not be considered in determining whether the informal award has been bettered for purposes of the preceding paragraph.

      5. Federal Rules of Civil Procedure 11, 26(g) and 37(c), which impose sanctions for frivolous pleadings, unreasonable discovery, and unreasonable failure to narrow triable issues, will also be operative.

II.   Justifications, Alternatives and Assumptions

    This Section expands upon the previous one in several respects. It sets out various alternative ways to handle the issues identified by the Commission and explains why these alternatives were rejected in favor of the plan described in Section 1. Most important, it describes the assumptions that framed the Commission's deliberations.

      A.   Procedural Mechanism: Administrative or Judicial?

      The exact nature of an accident triggering Price-Anderson relief is, of course, impossible to predict. Using the Chernobyl worst-case scenario as a guide, it should be assumed — for purposes of designing a procedural system — that there could be a number of prompt injuries and some deaths, and significant property damage, some susceptible to decontamination, some so severe as to make the property unusable. It should also be assumed that, in the short run, a significant number of people could require evacuation; that later, some could suffer emotionally and fear cancer, and lose jobs, wages and business opportunities; and that, in the long term, latent injuries could emerge. If radiation is dispersed by atmospheric drift, injuries and claimants could be spread over broad regions of the country (see Appendix B for a short summary on the nature of severe nuclear accidents).

      At first blush, an administrative mechanism for sorting out the resulting claims may appear preferable to a judicial approach. Studies have revealed many weaknesses in the ton system, particularly in the context of mass torts. It is expensive, time consuming, and its truth-finding capacity is circumscribed by the financial assets of the parties, by limitations imposed by the adversarial process, and by the resources of the judiciary. Because of differences in the law and the behavior of different juries, like injuries are not always treated equally. In contrast, workers' compensation, no-fault insurance, and other agency-administered compensatory schemes eliminate many controverted issues and standardize benefit packages. As a result, they are characterized by low costs, rapid decisionmaking and evenhandedness.8 Given the Act's waivers of defenses provisions and the benefit scheduling recommendations contained in Chapters 3 and 4, Price-Anderson cases could be molded to fit these models and achieve similar advantages.

      An administrative agency approach would offer other benefits as well. Price-Anderson cases could involve scientific and medical questions of a highly technical nature. An administrative agency can be staffed with professionals who have the skills necessary to decide these issues correctly. A nuclear incident could create many new cases and novel issues within a short period of time. Congress can expand an agency in line with its workload, supplement its resources in light of its responsibilities, and make statutory modifications so that the resolution of new issues conforms to political realities. Finally, coalescing responsibility for interim relief, registration, monitoring, and compensation within a single entity would make matters easier for those affected and avoid duplicative efforts.

      But despite these benefits, closer inspection leads the Commission to favor retention of the judicial model. This is the clear recommendation of many of the witnesses who appeared before the Commission. For example, Pamela Gilbert, Legislative Director for Public Citizens Congress Watch, testified:

        The civil justice system, basically, gives the average citizen [an] opportunity to fight city hall. There are very few other forums in society that level the playing field quite as much as the court system does.9

      This preference, echoed repeatedly.10 is eminently prudent from a number of perspectives. Thus, it is not clear exactly how Congress should respond to a recommendation urging agency-based administration. Establishing a standby agency would make sense only if it were fairly probable that its services will be needed. The experience of the nuclear industry to date, however, makes this contingency remote; acting on it could negatively impact upon public impressions of the safety of nuclear power.11

      In contrast, courts stand at the ready with instantaneous public credibility. Under existing law, parties can immediately file their claims in the district where the accident occurred; under the Commission's plan, the Multidistrict Litigation Panel would presumably quickly designate the court in which adjudication will be centralized. The public nature of federal trials provides each litigant with a day in court, where all claims can be fully ventilated. Furthermore, federal courts of general jurisdiction have a long tradition of public acceptability. The protections accorded by Article III of the Constitution insulate judges from improper influence. Separation of power principles put judicial disposition beyond serious public criticism. And, as several witnesses pointed out, civil procedures are flexible. They can be adapted to streamline the distribution of funds and minimize transaction costs while assuring litigants of fair treatment, including decisionmaking based upon the best scientific and medical information available.12

      B.   Structural Recommendations.

      Phase One.

      1. Jurisdiction; Applicable Law.

        1. Exclusivity. Centralized decisionmaking is the linchpin of the Commission's plan. For this mason, the Commission recommends that whatever court is given jurisdiction over Price-Anderson cases, that jurisdiction be made exclusive. Ideally, the statute should be amended change the word “original” to “exclusive.”13 This change would prevent the filing of actions in state court and obviate the need for removal to federal court.

          Consolidation of cases within a single tribunal can promote just and efficient adjudication.14 Centralization reduces duplicative litigation, diminishes transaction costs in individual cases, and conserves judicial resources. It fosters uniform results and avoids the perception of unfairness that is produced when like cases receive disparate treatment.

          Centralized treatment is particularly appropriate in circumstances such as these, where difficult technical questions will be in issue. While it is unlikely that prominent scientific and medical experts would be willing — or able — to appear in court repeatedly, consolidation makes it feasible for them to contribute their specialized knowledge by participating in generic determinations limited to issues within their fields of expertise.

        2. State versus Federal Court. The statute currently provides for federal jurisdiction over Price-Anderson cases, and the Commission recommends that — with the modification discussed above — provision be maintained and the statute be amended to ensure its constitutionality.15

          Nuclear power is a federal concern; indeed, until 1954, nuclear technology was a federal monopoly.16 And even after Congress decided to share the technology with private industry, it determined that “the national interest would be best served if the Government encouraged the private sector... under a program of federal regulation and licensing.”17 Given this strong federal involvement in nuclear power issues, given the extent to which the Act would, under the proposed amendments, federalize nuclear claims, and in view of Congress's interest in acting to ensure full compensation,18 the Commission believes that the federal forum is the appropriate choice. Furthermore, it should be noted that this procedure protects state sovereignty interests that would otherwise be compromised if an accident affecting several states were centralized in the court of only one state.

        3. Venue. As it stands, the statute provides for adjudication in the court of the district in which the incident occurred with primary responsibility in the hands of its chief judge.19 The Commission concludes, however, that this may not always be the appropriate choice and suggests that, instead, venue be chosen in light of the particular circumstances of an incident.

          The first problem with placing responsibility for the Act on the court in the district of the accident is that local feeling may be strong. Moving the cases to another court would, in such circumstances, promote fairness. A second difficulty with the current situation is that the statutorily designated court may itself suffer injury during an incident in its district and members of the court maybe injured parties. Although the statute now provides for shifting the burden through a management panel that can assign judges and appoint masters, the Commission regards it as more sensible to place administrative duties elsewhere.

          The MDL Panel, which currently has responsibility for consolidating cases presenting common questions that are pending indifferent districts,20 strikes the Commission as a suitable vehicle for making the venue selection. A sitting body with experience in mass tort cases, it is composed of judges from seven different circuits; in even the largest accident, it will remain viable and objective.

          In making this recommendation, the Commission also considered designating a particular established court, such as the United States District Court for the District of Columbia or the United States Claims Court, as the tribunal for all Price-Anderson cases. It rejected this idea because it perceived a need for flexibility and a capacity for balancing the desirability of local adjudication against the costs that this may entail. Thus, the Commission anticipates that the MDL Panel will, if practicable, designate the court in the district where the accident occurred because the bulk of claims will have originated there, because it will be the locus of witnesses and other evidence, and because the terms of recovery will be of principal interest to this locality. However, this amendment would facilitate a shift away from the location of the accident if circumstances make that desirable.

        4. Applicable Law. The Act currently relies on an admixture of federal and state law. Thus, it stipulates that state law provides the rule of decision in cases arising from a nuclear incident,21 but requires as a matter of federal law that certain defenses be waived when an ENO is declared, 22 and imposes as a matter of federal law a liability cap on the industry and its insurers.23 This mixture of federal and state law has led one court to find that, at least for non-ENO events, Price-Anderson cases do not “arise under” federal law and to hold that the jurisdictional provision of the current Act is unconstitutional.24 In light of this result, which led to the remand of all nondiversity Price-Anderson cases to state court, the Commission strongly recommends that the Act be amended to specify that federal law apply to all claims.

          It is important to emphasize that this recommendation is motivated by more than merely a jurisdictional problem. As noted above, long-standing federal involvement in nuclear power makes it anomalous to consider state tort law as applying of its own force to cases arising from an incident in a federally licensed nuclear power plant.25 The hybrid provisions of the Act emphasize that anomaly, and it will be even more evident if the rest of the Commission's plan is fully implemented.

          From a practical perspective, state decisional law presents a serious obstacle to designing a procedural system that disposes of large numbers of cases expeditiously. The provision that “the substantive rules for decision ... shall be derived from the law of the State in which the nuclear incident ... occurs”26 may have been meant to require the federal court to apply the substantive laws of the state where the accident occurred. However, experience with mass tort cases indicates that this passage may be interpreted as mandating the application of the accident state's choice-of-law rules, which may require the court to apply the laws of every state in which an injury was sustained or a claimant resided. 27 If, for example, citizens in 10 states asserted claims, the subclasses of claimants may have to be splintered into 10 sub-subclasses, and the number of hearings required to decide generic issues increased by an order of magnitude.

          Reliance on state law could also create a public perception of unfairness as claimants injured by the same incident in the same way achieve different levels of recovery, depending upon the substantive law of their residence or locus of injury. The resulting distributional pattern would be especially difficult to defend in cases in which state borders separate communities on different socio-economic levels.

        5. Waivers of Defenses. The statute currently provides that certain defenses are waived when an incident is declared an ENO.28 The Commission recommends that this provision be altered so that these defenses are waived when the criteria for implementing the plan have been met. In the Commission's view, these criteria serve to define incidents of a scope requiring special treatment.29

        6. Parties.

          1. Plaintiffs: Compulsory Intervention. In order to ensure timely recovery, it is likely that the court will find it desirable to proceed with generic determinations before all claims have been filed. At the same time, however, the proposed dispute resolution mechanism will not be efficient or evenhanded unless all potential parties are, in some sense, equally bound by these determinations. To achieve resolutions binding on A parties, the Commission recommends that the Act be amended in line with the proposal of the American Law Institute's Complex Litigation Project as reflected in its April 6, 1990. draft. Under that proposal, all potential claimants are sent notice that proceedings are pending in a federal court of competent jurisdiction, that they have a right to intervene and be heard in that proceeding, and that even in their absence, the court's determination will have issue-preclusive effect in their own cases.30

            The Commission recognizes that this recommendation is not without its problems. First, the ALI relied heavily on dicta that have recently been questioned, albeit not in a case in which preclusion was based on a statute.31 Second, even if the procedure is found to be constitutional as to claimants who are noticed, preclusion of those who do not receive notice may violate due process. Nonetheless, the Commission is reasonably confident that this provision would be upheld in the Price-Anderson context. Counsel will be appointed to represent the interests of absentees, which may be sufficient for constitutional purposes in light of the benefits that the plan offers.32 Furthermore, non-noticed litigants are likely to be of two types: those who failed to put their names and addresses on the registry, and those who registered but nonetheless did not receive notice. As to the former, if the statute is amended to provide that registration is a precondition of the maintenance of a claim for compensation unless good cause for failure to register is demonstrated, some of these claims can be validly precluded .33 As to the remainder, the Commission recommends that claimants who can show good cause or lack of notice be permitted to reopen generic questions in the central court. Since such parties are unlikely to prevail unless they produce substantial new evidence - a circumstance which would permit reopening in any event - this procedure would create an opportunity to be heard that would not undermine the efficient, equitable administration of Price-Anderson recoveries.

          2. Defendants. The Act implicitly relies on the nuclear insurance pools to defend the fund against invalid claims and the Commission recommends that this policy be maintained for all incidents. It is the Commission's view that the contracts between the utilities and their insurance pools to administer and manage claims and defend the fund through the second tier of liability ensure that the fund will be supervised prudently. Further, the Commission assumes that in the event of an accident assessed in the early stages to exceed the first two funding tiers, where compensation may be appropriated by Congress from the public fisc, the United States will take an active role from the earliest practicable moment. The United States has the option of defending the fund itself, the Commission believes that contractual arrangements between the Government and the insurance pools to provide this defense would assure prudent management and provide for continuity in the administration of the fund.34

            While cases within the first funding tier of the statute should, as now, be brought against the utility in question, those surpassing the “trigger point' 'as described in Chapter 1 should, from the first dollar of liability, be captioned ”In the Matter of the . . . Accident" and conceptualized as claims against the fund, including its retroactive premiums, as augmented through congressional action.

      2. Interim Responsibilities.

        The current statute emphasizes the importance of providing assistance as soon after the occurrence as is practicable. It speaks of “prompt compensation,”35 authorizes the NRC or the Secretary of Energy to “enter into agreements with other indemnitors to establish coordinated procedures for the prompt handling, investigation, and settlement of claims for public liability,” and permits payments to be made for “immediate assistance.”36 Up to 15 percent of funds through the second tier of liability can be distributed for these purposes without court approvals.37

        The Commission takes no position on the interpretation of the interim payment features of the statute: it assumes that the conventional insurance procedures utilized in resolving claims for first-party property damage coverage in natural disasters will be used and that these payments will not constitute binding settlements but will be used to offset final awards. However, it recommends that, whatever that obligation is, the central court become involved as soon as practicable. First, if interim relief were administered on a different standard from court-approved recoveries, those parties who won the race to the indemnitors would be treated differently from those who, because of greater injury or lack of knowledge, find that their only remedy is in court. Second, coordination between the registration program, the indemnitors, and the court (“onestop filing”) makes matters substantially easier for claimants and creates the data base needed to implement the compulsory intervention provision. Finally, past disasters have demonstrated that certain segments of the community are unable to take full advantage of interim relief efforts. Court supervision would allow for the appointment of special masters and counsel to go into the affected communities to ensure that all segments are fully served.38

        Chapter I contains a full discussion of the conditions that trigger the procedures recommended in this Report. It is, however, important to stress that certain features of the plan, such as registration, blood sampling, and emotional distress counseling, are most effective if begun immediately. Accordingly, the Commission suggests that, as soon as feasible, the court make a preliminary decision as to whether the criteria for invoking the plan have been met. It is contemplated that this decision will be based, in part, on the actions of relevant organizations, such as the NRC, FEMA, and local authorities. Once Phase Two has begun, this decision will be reviewed and finalized on the basis of the arguments and evidence presented by the parties in the generic proceedings and the recommendations of the PSA.39

      Phase Two.

      1. Generic Determinations.

        1. Bench Trials on Common Questions. Because the Commission has opted for central decisionmaking in federal court, the seventh amendment may apply to give the litigants the right to demand a jury trial. 40 However, the structural recommendations do not contemplate a role for juries in the generic stage. This is because many of the generic issues involve complex scientific questions, such as whether a particular form of cancer could have been caused by radiation exposure. Lay juries are likely to have considerable difficulty under-standing the evidence required to decide such questions. Thus, there is substantial risk that such juries would disregard relevant scientific and medical information and that the generic proceedings would devolve into battles of experts.

          In contrast, if these questions are tried to the bench and decided with the aid of panels of scientists and physicians chosen by the court, the evidence proffered will be evaluated by those with the expertise necessary to make good sense of it. Furthermore, the evidence will be subjected to the rigorous peer review that normally characterizes scientific inquiry. The presence of recognized authorities may, indeed, provide a check on the partisan testimony of the experts hired by the parties.

          There is no seventh amendment concern with respect to the resolution of some common issues. For example, proximate causation raises legal issues; to the extent that questions such as whether particular kinds of harm are too remote to be compensable can be determined generically, they are to be decided by the court as a matter of law.41 But the same cannot always be said with respect to other common questions, such as determining the causation of particular diseases, or setting a schedule of payment for nonpecuniary injuries. Since reasonable minds could differ as to the resolution of these issues, they are prime candidates for jury trials.

          Initially, the Commission gave serious consideration to the possibility of eliminating jury trials on these issues by, for example, amending the statute to explicitly recognize the compensation fund as limited and its distribution as an action in equity,42 by substituting the United States as the defendant,43 or by styling Price-Anderson claims as “public rights.”44 In the end, however, this course could not be fully recommended. There is substantial reason to believe that the public will find the proceedings more credible and fair if a cross section of the claimants' peers retains a role in determining compensation. Thus, although procedures would be simpler and transactions costs reduced if juries were eliminated, these considerations are outweighed by the value of maintaining a vehicle for community input into disputes that, in many important respects, present society with grave issues of first impression.45

          To preserve seventh amendment rights while providing for court determination of generic issues, the Commission therefore recommends that jury trials be preserved as to most issues, but deferred to Phase Three. Under this approach, generic determinations would, with the aid of the expert panels, be characterized as rebuttable or conclusive. Conclusive determinations - those based upon a clear understanding of the scientific community - would be applicable to all claimants who come within their scope. Since reasonable minds could not differ as to these conclusions, these determinations would not be subject to reconsideration by a jury. 46

          Conclusions based on a lesser consensus would, however, be regarded as rebuttable. These would, for example, be used when the PSA found legitimate grounds for disagreement among groups of experts, but agreed on which side had the better view. In addition, these determinations (“presumptions”) would be used on issues as to which the PSA was in equipoise. In those instances, the court would decide the issue as a matter of policy, based upon the statutory directive to err on the side of compensation. In the informal stages of individualized adjudication, these determinations would be binding on all claimants coming within their scope. However, since reasonable minds could differ on these issues, jury trials would, ultimately, be available.47

          The Commission does not believe that this deferred jury trial procedure will interfere with the equitable distribution of the fund. So long as the trial court exercises its power to direct verdicts, order judgments notwithstanding the verdict, remittitur and new trials in cases in which the credible evidence does not overcome the presumptions, these trials would not disrupt the evenhandedness with which the program is administered. And as noted elsewhere, the Commission also recommends reducing the potential number of jury trials by asking the indemnitors to waive their jury trial rights. To be sure, jury trials would then be delayed and circumscribed, but strong arguments can be made that under the circumstances, the modifications proposed are not unconstitutional.48

          This course cannot, however, be recommended with regard to the question of punitive damages or relief for nonpecuniary injuries. Were these “wild card” questions determinable by juries, equivalently situated claimants would receive significantly disparate awards and funds (even as supplemented by the United States) would likely prove inadequate to compensate everyone. More important, the possibility of a lucrative recovery on these issues could easily lead an unacceptable number of litigants to request jury trials and this would be true even if the Commission's recommendations for disincentives are adopted. Thus, this plan is based on the assumption that the statute will be amended to eliminate punitive damages. If the court does not also interpret “full . . . compensation”49 to specify scheduled relief for nonpecuniary injuries, or Congress does not supply a schedule in the legislation enacted pursuant to the President's 90-day proposal,50 then these must be considered issues for which there is no right to a jury, either on the limited fund theory or pursuant to sovereign immunity or public right doctrines.51

        2. Panel of Scientific Advisors. The Commission considered three models for the utilization of scientific expertise in developing generic determinations.

          The first model would have the court make its own evaluation of the conflicting testimony of retained experts tendered on behalf of claimants and the defense. The potential for exaggeration and bias inherent in this process is evident. The Advisory Committee on the Federal Rules of Evidence observed that:

            The practice of shopping for experts, the venality of some experts, and the reluctance of many experts to involve themselves in litigation, have been matters of deep concern.52

          Moreover, this model would rely critically on the capacity of a judge, likely to be without training in the relevant disciplines, to sift the contentions of the partisan experts and to formulate determinations which would be at the core of the claims resolution process. There is a significant possibility that this approach would produce an outcome at variance with the consensus of the knowledgeable scientific community.

          A second model would rely on the provisions of Federal Rule of Civil Procedure 53 authorizing the appointment of a special master. There are several concerns about the appropriateness in the present context of this Rule 53 model.

          One concern arises out of the fact that the scientific issues involved will likely require a collegial effort on the part of a number of persons with training in different disciplines rather than a single master. The Commission assumes that Rule 53 permits appointment of a multi-member panel and that this concern could be resolved.

          A second concern arises out of the fact that Rule 53 (c) contemplates that proceedings before the master be conducted in the manner of a bench trial, governed both by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. This is not the normal mode of operation for a collegial scientific body and it may prove an unnecessarily labored and awkward procedure for developing recommended determinations by such a body on biological/medical issues. Ibis concern could be mitigated if the proceeding before the Panel were conducted by a forceful and skilled presiding officer.

          A third concern about the Rule 53 model arises out of the provisions of Rule 53 (e) (2). These provisions require that in a non-jury proceeding the court “accept the master's findings of fact unless clearly erroneous.”

          Arguably the court's definition of the issues to be considered by the Panel could be framed in such a way that its recommendations could be characterized as addressed to mixed questions of law and fact so that the court would have plenary authority to modify the Panel's recommended determinations. In the present context, it seems highly desirable to give the court such plenary authority in order to take account of value judgments reflecting a policy of erring on the side of granting rather than denying compensation.

          A third model would rely on the court's authority under Federal Rule of Evidence 706 to appoint expert witnesses. The members of the panel would function as such witnesses. Their depositions could be taken, they could be called upon to testify, and they would be subject to cross-examination.

          This model again presents several problems. The first problem arises out of what the Advisory Committee for the Rules refers to as “the reluctance of many reputable experts to involve themselves in litigation.”53 Again, the Rule 706 procedure seems more appropriate for the single “expert” case than for a multidisciplinary panel making a collegial judgment after extended deliberation. Also, the Commission's proposal contemplates that the Panel would assist the court in drafting its generic determinations. The drafting is likely to prove to be a task of some sensitivity and complexity. Assistance in such a task is a role beyond the conventional responsibilities of a witness.

          Moreover, Rule 706 seems to contemplate a single trial where the court-appointed expert plays a role and then departs the scene. Here the Panel, although its membership may be reconstituted over time, should have some continuity and is likely, over time, to be called upon to make or to reconsider a number of recommended determinations.

          Consideration of these three models should bring into sharper focus the plan being made by the Commission for a PSA to assist the court in making generic determinations. The Panel's recommended determination will not be binding on the court but will serve as a focus for a de novo bench trial governed by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The Panel will not serve as witnesses but will be able to assist the court in evaluating expert testimony and supporting evidence submitted on behalf of the parties. This role reduces the risk that extreme or unfounded views outside the prevailing scientific consensus would be accepted by the court. The Panel would also assist the court in preparing its order modifying any recommended determination.

          The Commission's plan does not contemplate that the Panel will simply meet and produce a recommended determination. It requires the Panel to (i) hold oral hearings with opportunity for the parties to submit expert testimony and other evidence, including rebuttal testimony and evidence, (ii) place in the hearing record all material considered by the Panel, (iii) state for the benefit of the court and the parties the basis of its recommended determinations, and (iv) make a public record of all dissenting opinions.

          These safeguards meet with due process requirements and seem calculated to make the generic determination of scientific issues reliable and credible. Apart from due process concerns, the Commission plan also comports with the seventh amendment requirement for a jury trial, if that requirement is deemed applicable to the new federal statutory remedy proposed by the Commission.

          It is familiar law reflected in the summary judgment rule, Federal Rule of Civil Procedure, 56, that the seventh amendment relates to the right to a jury determination of a “genuine issue as to any material fact.” Here the court, in giving conclusive effect to a particular generic determination, would do so on the basis that there was no such genuine issue.54

          In other cases the court might treat the generic determination as a rebuttable presumption. It seems clear that this also does not raise seventh amendment concerns.55

      2. Reconsideration

        1. Interlocutory Appeal. The generic determinations that conclude this stage in the proceedings will be used in all succeeding determinations. Since subsequent reversals would undermine the equitable distribution of the fund, it is important that, if the generic determinations and the process by which they were arrived at are challenged, review should be completed before individualized adjudication commences. To remove the discretionary element in the general provision for interlocutory appeals,56 the Commission recommends that the statute be amended to provide for the right to an appeal immediately after all generic determinations are concluded in the circuit court embracing the district in which the central court is located. Out of the same concern for orderly and prompt administration, the Supreme Court should handle the case on an expedited basis.

        2. Reopening. The issue-preclusive effect of generic determinations is a key element of an evenhanded, expeditious distribution plan. However, the Commission recognizes two considerations that relax this principle. The first was mentioned above; parties who, without fault, do not receive notice of compulsory intervention are entitled by due process concerns to have all generic determinations reexamined. The second circumstance is the discovery of new evidence. During the period between the accident and the emergence of all injuries, medical and scientific knowledge is likely to advance. If Price-Anderson funds are to be distributed on the basis of the best information available, there must be some mechanism for bringing this knowledge to bear in later cases.

          Reopening could be handled either in the central court or in the course of individualized adjudications. As a general matter, the Commission recommends the former course. New evidence should have the same impact on all cases decided after its discovery and should, like the initial evidence, be evaluated by a panel of experts. Accordingly, the considerations that favored generic determinations in the first instance are also operative here. Thus, the Commission envisions that litigants with grounds for reconsideration will petition the central court, which would have the authority to decide whether reopening is appropriate and whether the assembly of a new panel of experts is required. Furthermore, decisionmakers in individual cases who are confronted with new evidence or arguments on rebuttable presumptions should have the authority to refer litigants to the central court for initial consideration of their evidence. Finally, if feasible, the central court should from time to time review filed settlement agreements to determine whether they disclose common issues that were not generically adjudicated, or whose disposition has been, by agreement of the parties, ignored. In such cases, the court should on its own motion order reopening.

      Phase Three.  Because an accident piercing the aggregate liability layers of the Act is likely to give rise to numerous cases, expeditious handling of individual disputes is imperative.57 This plan deals with the problem in a variety of ways. First, it provides for generic determinations to resolve common questions. If, indeed, punitive damages are eliminated and nonpecuniary injuries scheduled, most cases should settle readily after the second phase is completed. Second, the plan calls for a short-form procedure to make fixed, modest awards available on minimal proof. Third, the Commission proposes the appointment of a Claim Master to calculate awards on an individualized basis but at low cost. Finally, the plan includes certain disincentives to further litigation.

      1. Structure of Informal Proceedings. The claims procedure involves a combination of fixed, scheduled and individualized payment features. It is designed to keep transaction costs low and speed recovery while recognizing the right of the claimants to full compensation. This stage provides claimants with a choice of claims processes, but requires them to utilize some informal procedure before they can demand formal consideration of their cases.

        The fixed payment portion of the plan stems from the observation, derived from experience resolving mass ton cases, that some claimants are willing to sacrifice the niceties of due process hearings in exchange for rapid and sure relief, especially when causation involves complex determinations and when damages are difficult to quantify.“58 Accordingly, the recommendations contemplate that modest payments will be made available to compensate personal, business and property losses based on affidavits attesting with particularity to the nature of the claims.59 A special master will be appointed to administer this ”short-form" procedure and given authority to request additional information and reject awards when conflicting evidence is presented This procedure is intended to filter out the easiest cases; the awards will be modest and defendants will not be permitted to challenge them.

        The Commission recognizes, however, that some claimants will prefer an approach that keys recovery to actual losses. Furthermore, it realizes that the facts of individual cases may differ so widely that categorization is not fruitful. Since insurance company witnesses testified that claims can be processed expeditiously even when they arise in large numbers,60 the Commission was persuaded that despite the increased costs of handling, individualized procedures short of plenary adjudication should be made available for those claims susceptible to objective, unambiguous determination. Under Option 2, a Claim Master, assisted by Medical and Property Assessment Panels, will calculate an award based upon evidence of loss in accordance with recognized insurance practices.

        The plan also utilizes Option 2 for the purposes of processing claims involving nonpecuniary losses (such as pain and suffering), claims requiring subjective assessments (such as diminution in value and temporary loss of use of residential property), claims based on injuries (such as cancers) that are not uniquely caused by radiation exposure, and claims for emotional distress and fear of cancer. Relief in these cases may be calculated on the basis of a compensation schedule or may take the form of emotional distress counseling and medical monitoring. Upon appropriate proof and with the advice the Medical and Property Assessment Panels, the Claim Master will offer awards based on the recommendations of Chapters 3 and 4.61

        With regard to both Option I and Option 2 procedures, the Commission envisions that each claimant will present all claims that have accrued up to the time of submission to the Claim Master, that claimants would not be required to bifurcate their claims and follow separate tracks for personal injury, business loss, and property damage. At the same time, however, the Commission recognizes that some claims may emerge after the initial resolution; in those cases, the original submission would not bar later claims. Each submission would, however, result in a calculated award. If the award is rejected, litigants can proceed to formalized proceedings, subject to the disincentives described below.

      2. Formal Proceedings.

        1. Parties. All litigants have the right to reject the award calculated in informal proceedings. At this point, however, a distinction is made between the claimants and the parties defending the fund. Thus, the right of claimants to proceed through the stages of individualized adjudication cannot be seriously questioned, for it is essential to public acceptance of the plan. But defendants stand on a different footing. Since they receive substantial benefits under this plan, Congress could provide for waivers of their rights to challenge all awards. This would streamline procedures, reduce transaction costs, lead to more rapid compensation for the injured and, most important, dedicate the full resources of the judiciary to resolving the cases of dissatisfied claimants.

          At the same time, however, obligating the defendants to pay on all claims, including invalid ones, would jeopardize the solvency of the fund. The Commission therefore has chosen to split the difference and to Emit the defendants' appellate rights. Thus, it requires defendants to accept the modest awards available under Option 1 without challenge and recommends that Congress provide that the defendants accept, in exchange for the benefits received under this plan, the limitation that all challenges to Option 2 awards take the form of binding arbitration (subject to the claimants' right to demand adjudication instead).

          In addition, the Commission proposes that defendants be prohibited from challenging awards based on the theory of proportionate recovery. This is because, in most cases, claimants will not be able to sustain the burden of proving causation in cases to which this theory applies. If these claimants can nonetheless be called upon to prove their cases, the compensation policies advocated by the Commission will be thwarted.

        2. Issues. In the formal stages of the proceedings, parties am entitled to challenge only the resolution of those factual issues that have not been legislatively mandated or conclusively decided in the course of Phase Two proceedings. For example, the following questions cannot be reexamined:

          • Legal questions. such as proximate cause (e.g., whether a travel agency remote from the accident site can recover because it cannot sell tours to locations near the site where the incident occurred).

          • The availability of punitive damages.

          • The magnitude of awards for nonpecuniary losses (e.g., pain and suffering caused by personal injury; loss of community; wrongful death).

          • The type of relief available for nonpecuniary injuries (e.g., emotional distress counseling as the remedy for fear of cancer).

          • Conclusive determinations on general causation (e.g., a conclusive determination that dyslexia cannot be caused by radiation exposure could not be challenged by a claimant; a conclusive determination that acute radiation syndrome is caused by radiation exposure could not be challenged by a defendant).

          In addition, defendants would not be permitted to challenge awards based on a theory of proportionate recovery.

          In contrast, the following are example of questions that can be relitigated:

          • Specific causation (e.g., whether claimant is suffering from the disease claimed; whether crops grown on land near the zone of injury diminished in market value).

          • Intervening causation (e.g., whether the claimant's cancer was caused by the extent of claimant's smoking in the years following radiation exposure).

          • Mitigation (e.g., whether claimant took the proper precautions before moving back to evacuated property).

          • Rebuttable determinations on general causation (e.g., whether individual factors make it more likely than indicated on the PC Table that a cancer was caused by exposure to radiation).

          • Magnitude of damages for pecuniary injuries (e.g., whether business losses directly caused by the accident were as large as claimed).

        3. Effect of PC Determinations. As explained more fully in Chapter 4, the Commission contemplates the use of proportionate recovery for losses attributable to conditions that are not uniquely caused by radiation exposure and, therefore, scales back the award available through informal procedures to the extent to which it is presumptively determined that radiation is not the cause of injury. For injuries in which causation most likely cannot be proved according to the standard used in other personal injury litigation (currently preponderance of the evidence), claimants accepting this procedure exchange the remote opportunity for full recovery for the assurance of some recovery.

          The Commission does not, however, wish to rule out the possibility that claimants may be able to demonstrate a closer link between their own injuries and exposure. Accordingly, the plan leaves current principles of tort law in effect for formal procedures. This permits claimants to challenge causation but requires them to meet the burden of proof that is imposed in other personal injury litigation. As with all evidence of causation meeting the standards of the Federal Rules of Evidence, the evidence used by the court to develop the PC tables could be introduced to meet this burden.

          Preserving claimants' rights to prove specific causation does not require all claimants involved in formal procedures to relinquish the use of proportionate recovery. First, the plan prohibits defendants from challenging use of the theory of proportionate recovery. Accordingly, while defendants could demand binding arbitration on such issues as the extent of exposure or the nature of a claimant's illness, they could not ask the arbitrator to deny recovery because the burden of proving causation in court has not been met. Second, claimants who do not dispute causation but wish to challenge the informal award on grounds other than causation can ask that the disputed issues be decided and their cases remanded to the Claim Master, who will base awards on proportionate recovery methods.62

      3. Disincentives. In the final analysis, the Commission views its plan as viable only because it believes that not many litigants would opt for fun blown trials. This prediction is based on several assumptions: that the plan will eliminate or schedule claims that provoke lucrative responses from juries; that litigants will choose quick recovery in preference to the delay that will necessarily attend the demand for plenary adjudication; and that responsible attorneys will not go forward with cases unless they have evidence likely to overcome the generic presumptions. At the same time, however, the Commission recognizes a need to create further disincentives.

        A variety of disincentives is available. For example, all litigants could be required to bear the legal costs of plenary adjudication; the winner's costs could be shifted to the loser or losing parties could be required to pay the costs of earlier proceedings or return interim rewards. Within these proposals, parties could be allowed a margin of error by defining a “loser” as one who fails to come within a specified percentage — 80 percent, for example — of the informal award.

        In light of the special circumstances involved in a nuclear incident, the Commission does not believe that disincentives should be harsh. Furthermore, it considers it important to protect counsel from the conflict of interest that would occur if the demand for plenary adjudication jeopardized an earlier award of attorneys' fees. Thus, it recommends the following sanctions. First, claimants who choose adjudication but do not better the informal award should bear court costs and their own attorneys' fees and other costs, including witness fees, incurred in connection with the plenary adjudication or arbitration. By failing to create a margin for error, this sanction should discourage litigation of marginal cases. It will also encourage dissatisfied claimants to choose arbitration over adjudication.

        Second, except with respect to life insurance, the collateral source rule should be disregarded when calculating adjudicated awards. As discussed more fully in Chapter 3, this rule bars defendants from introducing evidence that a claimant has received or will receive compensation for losses from collateral sources such as insurers or the government and prohibits defendants from offsetting an award of damages by the amount of any collateral payments the claimant received. Strong arguments have been made to disregard the collateral source rule at the informal stage as well. The Commission chose not to adopt this policy because it believed that the individualized judgments that would be required were incompatible with the streamlined procedures envisioned in the informal stages. However, once plenary adjudication procedures are invoked, this reasoning is no longer applicable. Disregarding the rule has the added advantage of discouraging adjudication and encouraging dissatisfied claimants to utilize arbitration. The reduction in award produced by disregarding the collateral source rule should not, however, be considered in determining whether the informal award has been bettered for purposes of the previously discussed sanction.

        Third, the Commission recommends leaving in place the sanctions provided by Federal Rules of Civil Procedure 11, 26(g) and 37(c). These provisions use fee-shifting to discourage frivolous claims, unreasonable discovery, and unreasonable refusals to narrow the litigable issues. They motivate attorneys to investigate their cases with care and should prevent parties from using spurious issues to create a forum for debating nuclear energy policy.

III. Implementation Under Existing Law

    The Commission's decision to recommend a judicial rather than administrative distribution plan for Price-Anderson relief is premised, in part, on the view that modem procedural devices, coupled with the provisions of the Act itself, give the judiciary the authority to handle claims equitably and efficaciously. Thus, if Congress chooses not to amend the statute in line with the recommendations made in Section I, this document can serve as a road map for achieving many of the objectives of the plan under existing law.

    This section should not, however, be read as demonstrating that there is no need to amend the statute. First, it may be the case that certain of these procedures are constitutional if adopted statutorily, but not through common law. Second, some of these recommendations raise significant constitutional issues. Until these questions are resolved by the Supreme Court, claimants may be reluctant to consider settlement realistically. Third, particular courts may not be persuaded by the arguments advanced here. If the plan is considered desirable, the only way to ensure its implementation is by amending the statute. And, as noted above, comfort should not be drawn from the judicial system's record in mass ton cases as the Act presents unique problems.63

    Phase One.

    1. Jurisdiction; Applicable Law.

      1. Exclusivity. The Commission's recommendation that decisionmaking be centralized cannot be implemented if the decision in Lewinter v. General Public Utilities Corp.64 is regarded as binding. That case held unconstitutional the federal jurisdiction provision of the Act, which creates original jurisdiction in the federal district court where the accident occurred, and permits defendants, the NRC, and the Secretary of Energy to transfer to this court cases filed in other federal courts and to remove to this court cases filed in state courts.65 As a result of this decision, claims arising under the Act may be distributed among several judicial systems. Claimants who can rely on diversity jurisdiction66 can file in any federal court where venue lies; other claimants must proceed in state courts and are free to file in any state having adjudicatory authority over the defendant. While scattered federal cases may be consolidated for pretrial purposes by the MDL Panel67 and consolidation of state cases in a single state court could be effected by forum non conveniens dismissals,68 the result would, at a minimum, lead to dual proceedings.

        If, however, Lewinter is reversed69 — or if other courts refuse to follow it or limit it to non-ENO incidents70 — then the Commission's exclusivity recommendation can largely be implemented under the existing Act; most cases would likely be filed in the district of the incident and many of the cases that were not could be removed there. Other federal cases could be consolidated for pretrial purposes under the MDL Rules 71 and states may, in light of the benefits of the plan, be willing to dismiss state cases on forum non conveniens grounds so that they can be refiled in the central court.

        These supplementary doctrines should, however, be recognized as limited. Consolidation through the MDL Panel is for pretrial purposes only. While generic determinations could be made as recommended by the Commission, they may not be considered “pretrial” unless they are all rebuttable in individual proceedings. Furthermore, there is currently no way to mandate the transfer of cases filed in state courts to federal fora.72

      2. Venue. As it stands, the Act provides for adjudication in the court of the district in which the incident occurred, with primary responsibility on its chief judge.73 The Commission's recommendation for flexibility can, however, be implemented to some extent. The Act permits the chief judge to shift responsibility to a management panel, which can include “any United States district judge or circuit judge of another district court or court of appeals.”74 Furthermore, judicial personnel can be brought into the district through the panel's power to assign judges and appoint special masters.75 Finally, general procedural law allows cases to be transferred out of the accident district to other courts in “the interest of justice.”76

      3. Applicable Law. A sympathetic judge may be able to implement the spirit of the Commission's plan and find a single law applicable to all claims. However, it is not likely that a court could follow the Commission's substantive recommendation to apply federal law.

        1. Federal law. The Act creates some federal law applicable in the case of an accident, which may be supplemented by the nuclear regulatory statutes. However, there are strong arguments against the proposition that the court presiding over Price-Anderson cases has the power to create federal common law to fill the interstices. First, the statute specifies that state substantive law applies.77 Second, authority to create federal common law requires a showing of a substantial federal interest that would be frustrated by the application of state law and a finding that the application of federal law would displace no significant state interest.78 Although the pervasiveness of federal control over nuclear power, its preemption of state law and a policy favoring the equitable distribution of Price-Anderson funds could form the basis of such findings, Congress's own refusal to impose federal law statutorily is a significant counterargument,79

          For example, the claimants in the Agent Orange litigation were unsuccessful in arguing for the application of federal law despite the fact that the case pitted federal soldiers against federal contractors. The Second Circuit's decision relied, in part, on the lack of congressional policy determinations.80

        2. State law. In the absence of authority to rely exclusively on federal law, the court entertaining Price-Anderson cases may reason that equity requires that the same law apply to all claimants. It could then interpret the statutory directive that “substantive rules for decision ... shall be derived from the law of the State in which the nuclear incident involved occurs”81 as mandating use of the tort law of the incident state rather than its choice-of-law rules.82 Alternatively, the court may attempt to find a single body of law by following Judge Jack B. Weinstein's lead in the Agent Orange litigation. If so, the court would rely on “a consensus among the states with respect to the rules of conflicts and applicable substantive law that provides, in effect, a national substantive rule governing the main issues.”83

          There are, however, problems with these solutions. While a state's law may constitutionally apply to all aspects of a controversy that has significant local contacts,84 it is unclear whether the incident state would have a strong enough nexus to the dispute to support application of its law to nonresidents. Because of the preemption provisions of federal nuclear energy law, the state's regulatory interest in the operation of the plant in which the incident occurred is attenuated.85 Its only other interest lies in compensating- injuries, but that interest applies principally to in-state property and residents (and, perhaps, visitors). Other claimants' cases would then be controlled by the law where the injury was sustained or the law of residence.86

          The Weinstein approach avoids this problem, but creates others. Because the Agent Orange case was settled, Judge Weinstein was never called upon to find a consensus among the states. It is possible that an accident will involve states with such widely divergent substantive laws that it would be implausible to posit a consensus among them. Furthermore, the settlement in Agent Orange allowed the Supreme Court to avoid consideration of Judge Weinstein's decision. When the issue is squarely posed, the Court may not be willing to accept the notion of national consensus common law.87

      4. Parties.

        1. Plaintiffs. The Commission's compulsory intervention recommendation probably cannot be implemented without a statute. Although dicta in a 1968 case indicate that parties who knowingly fail to intervene to protect their interest can be issue precluded,88 the Supreme Court has partially retracted this statement and has since held that despite knowledge of a lawsuit and knowledge of injury, those who do not intervene, join, or become joined through indispensability provisions, cannot be bound by an adjudication.89 Thus, the Commission's plan is based on the theory that there is a difference between compulsory joinder pursuant to statute and through common law. If so, without statutory authorization, notice may not be a way to foreclose absentees from relitigating generic issues.

          It may be that a plausible alternative here is to certify the claimants as a class. Under this view, so long as the named plaintiffs are typical of the class and adequately represent it, class members' due process rights would be deemed vindicated by the representation provided on their behalf and their opportunity to be heard could be foreclosed even in their absence.90 Unfortunately, however, class certification may not be available in connection with Price-Anderson claims. Because the statute provides for fall compensation, certification pursuant to Federal Rule of Civil Procedure 23(b)(1) is not appropriate.91 Certification under Rule 23(b)(2) is available only if declaratory or injunctive relief is requested, and 23(b)(3) requires a predominance of common issues, which may be problematic, at least in ENO cases where the waivers of defenses provisions of the Act eliminate many of the issues common to the putative class. And even if classes are certified with respect to particular issues, claimants could undermine the scheme by opting out.92 Finally, the issue of due process rights has been definitively litigated only in the context of voluntary class actions. Involuntary certification raises due process concerns that have not been addressed by the Supreme Court. 93

          Another alternative is to consider absent claimants necessary parties under Federal Rule of Civil Procedure 19. The requirement for finding a party necessary under Rule 19(a)(2) is that its interests will be prejudiced, as a practical matter. Since, as a practical matter, it will be difficult for absentees to overturn determinations of complex technical issues, a strong argument can be made that they qualify as necessary.94 If so, these claimants could be served with process, joined as defendants and then realigned in accordance with their actual interests. Since the statute currently provides for nationwide service of process, all claimants who can be found within the United States can be brought into the action in this manner.95

          Finally, it may be possible to rely on a concept akin to that used in Mullane v. Central Hanover Bank & Trust Co.,96 which arguably relaxed due process requirements for claimants who received a benefit not otherwise available, when those whose location was known received notice, when the interests of absent claimants were aligned with claimants who were present and represented, and when guardians were appointed on behalf of identifiable classes of absentees. These requirements would be relatively easy to meet in the Price-Anderson context because the plan offers significant benefits, it is more than probable that claimants representing all manner of injuries will join voluntarily, and the court could on its own motion appoint representatives for the absentees. But here again, the constitutionality of considering the generic determinations binding on absentees is somewhat questionable. Such a procedure has not been squarely approved by the Supreme Court in this context and Mullane did not involve claims of the magnitude at issue here.

        2. Defendants. The Commission's recommendation with regard to the defense of the fund is largely prudential, as a fair reading of the Act mandates the conclusion that the indemnitors protect the fund. Furthermore, congressional appropriation of federal support can be conditioned on a right to play a role in the fund's defense.97

    2. Interim Responsibilities.

      1. Unified Registration Procedures. The statute would require amendment to provide, as an initial matter, for registration, blood sampling, and the use of the registry to initiate actions and serve defendants. Although blood sampling could be requested by defendants in the course of discovery pursuant to Federal Rule of Civil Procedures 35, for those claimants claiming personal injury as a result of radiation exposure, the timing of the request may be problematic (see Chapter 4).

      2. Supervision. The court can probably use its authority under Federal Rules of Civil Procedure 16 and 53 to institute conferences between the parties and appoint masters to ensure the participation of the affected communities.

        Unless clarified, the statute does, however, permit the indemnitors to spend a significant portion of the fund without court approval.98

    Phase Two.

    1. Generic Determinations.

      1. Bifurcation. The authority to sever certain questions and decide them in separate procedures exists under current law. Thus, Federal Rule of Civil Procedure 42(b) gives the court authority to sever issues “in furtherance of convenience ... or when separate trials will be conducive to expedition and economy.” The order must, however, preserve “inviolate the right of trial by jury,” and the issues must be distinct and independent.99

        The requirement that issues be distinct and independent should not present an obstacle. The plan envisions generic determination of liability issues, with individualized adjudication centering mainly on questions of computing damages. This method of bifurcation has been accepted as satisfying this requirement.100 Accordingly, the issues discussed above as suitable for generic determinations could be decided in this manner. In addition, in those cases in which the Commission's recommendations are considered desirable but an ENO has not been declared, certain of the defenses available to defendants only in non-ENO incidents may be triable generically.

      2. Bench Trials on Common Issues. If the plan succeeds in protecting litigants' seventh amendment rights, the generic-determination feature can be implemented without modification of the statute.101 But, as noted above, unless the statute is clarified to eliminate punitive damages and schedule nonpecuniary injuries, the demand for jury trials may render the entire scheme unfeasible. Furthermore, the policies underlying the proportionate recovery recommendations cannot be effectuated unless defendants agree to forgo their seventh amendment rights to challenge these awards.

      3. Panel of Scientific Advisors. The Commission's recommended procedure for expert deliberation could not be implemented under existing law. However, Federal Rule of Civil Procedure 53, which provides for the appointment of special masters, can be utilized to provide the court with some scientific guidance. In addition, an imaginative use of Federal Rule of Evidence 706, which permits the court to appoint expert witnesses, may allow the court to create a forum for having scientific issues debated by well-regarded members of the scientific and medical communities for the benefit of the court. The question of compensating the experts may, however, be problematic.102

    2. Reconsideration.

      1. Interlocutory Appeal. Most likely, current law would permit courts to follow the Commission's recommendation that generic determinations be immediately appealed. It is possible that these determinations will be made in connection with test cases. If so, the final judgment rule will be satisfied with respect to the test litigants.103 Even if the court decides to conduct its hearings in a different manner, the decisions will involve “controlling questions of law” whose resolution will “materially advance the ultimate termination of the litigation.”104 As such, both the trial court and appellate court will likely exercise their discretion to have the appeal heard interlocutory. The Supreme Court has inherent authority to expedite its consideration of such cases.

      2. Reopening. The doctrine of issue preclusion, which would otherwise prevent reexamination, has always been tempered by equitable considerations. 105 Since this is largely an area of judge-made law, the central court possesses authority to permit reopening in light of new evidence and to decide when to assemble new expert panels. 106

    Phase Three.

    A.   Use of Informal Procedures.

    It is fairly well accepted that a court has power to delay trial pending informal procedures. Despite the limitations of Federal Rule of Civil Procedure 53(b),107 courts have used Federal Rule of Civil Procedure 16(c)(7) to consider “the possibility of settlement or the use of extrajudicial procedures to resolve the dispute” as authority to appoint special masters to facilitate settlement and calculate damages,108 and the Act supplies further support for the practice.109 Furthermore, somewhat analogous arbitration procedures have been upheld so long as litigants have a right to trial de novo.110

    Defendants cannot, however, be required to accept these informal awards. Thus, without a statute and negotiation between Congress and the indemnitors, the policies achieved through these procedures cannot be fully effectuated.

    B.   Authority of Masters.

    The informal procedures advocated by the Commission probably cannot be implemented without agreement by the parties. However, other informal procedures can be substituted. Thus, in districts where Congress has approved court-annexed arbitration and local rules have been adopted, procedures similar to those recommended can be readily implemented.111 Although this currently amounts to only 20 judicial districts, experience with these procedures has been good112 and Congress will probably consider authorizing every judicial district to, adopt them.113 For other districts, the special masters' power is derivative of the authority of the court. Federal Rules of Civil Procedure 16 and 53 have been interpreted broadly in complex cases, and the court's power is probably at its zenith when the equitable distribution of a limited fund is at issue.114 Federal Rule of Evidence 706 permits the court to appoint experts, which presumably could include examining physicians and property assessors; Federal Rule of Civil Procedure 35 authorizes the court to order physical examinations of parties when “physical condition ... is in controversy” upon a showing of good cause. In such cases, the court possesses some power over the selection of the physician.115

    C.   Formal Proceedings.

    These recommendations distinguish between the claimants' and defendants' rights to review informal awards, with claimants having the right to choose between binding arbitration and bench trial (and, if the seventh amendment is not avoided, a jury trial), while defendants have only the option of binding arbitration and then only in certain circumstances. The intent, which is to reduce to a minimum the number of cases requiring court trials, is based on the statute's objective of insuring compensation for all injured parties and securing prompt recovery. Nonetheless, the recommendation probably cannot be followed without a statutory directive; depriving defendants of the right to plenary adjudication goes well beyond the waivers of defenses provisions of the current Act.

    D.   Disincentives.

    On the whole, the Commission is relying on the, structure of the plan and general provisions of federal law to reduce the number of cases requiring plenary adjudication. Since most of the plan can be implemented under existing law and the Federal Rules of Civil Procedure permit the court to sanction parties who file baseless claims, use discovery improperly, and unreasonably fail to make admissions,116 the right level of plenary trials is likely to be reached so long as claims on nonpecuniary injuries and punitive damage claims are taken out of the cases that reach juries.

    The special disincentives regarding the imposition of legal fees and costs can, to some extent, be imposed under existing law. Currently, the Act gives the court some discretion whether to award legal costs and instructs it to consider, in cases where the solvency of the fund may be in issue, whether the requesting party “litigated in good faith,” “avoided unnecessary duplication of effort,” has “not made frivolous claims or defenses,” and has “not attempted to unreasonably delay the prompt settlement or adjudication of such claims .”117 Although the statute does not specifically guide the parties' choices or inform counsel that conflicts of interest will be avoided, the court could take up the question of fees and costs with the parties and their attorneys at an early pretrial conference so that they receive adequate guidance.

    The special disincentive regarding the collateral source rule would be more difficult to implement as the court will be bound to follow the laws of the states. As noted in Chapter 3. the states are currently in flux on this issue.


Footnotes

  1. While the Act's waivers of defenses provision, Act 170(n)(1),42 U.S.C. 2210(n)(1), eliminates several of the issues present in other tort cases, many litigable matters remain open. These questions include, but are not limited to: specific causation. proximate cause, extent of injury, failure to mitigate, availability of collateral benefits, and recoverability of punitive damages. They also include certain intervening causation issues, such as whether activities undertaken by a claimant after the incident should affect the level of recovery.

  2. Aside from latent injury claims, many Price-Anderson cases will be relatively less costly to litigate because the causes of deaths and radiogenic diseases that occur shortly after the incident will not be seriously contested and because of the waivers of defenses provision, Act I 170(n)(1). 42 U.S.C. 2210(n)(1). In contrast, veterans exposed to Agent Orange were confronted with the difficult task of establishing a relationship between dioxin exposure and the injuries they experienced. See In re “Agent Orange” Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y. 1983), aff' d, 810 F.2d 145 (2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988). Similarly, asbestos plaintiffs were initially faced with the problem of identifying which of several potential defendants caused their injury. See, e.g., Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir. 1988).

  3. Act 170(m), 42U.S.C. 2210(m). In contrast, mass tort plaintiffs usually receive no compensation until after resolution is achieved.

  4. Compare In re Northern District of California Dalkon Shield IUD Products Liabilily Litigation, 693 F.2d 847 (9th Cir. 1982) (reversing certification of class action), cert. denied, 459 U.S. 1171 (1983).

  5. Act 170(a) and (b), 42 U.S.C. 2210(a) and (b).

  6. Compare In Re Johns-Manville Corp., 78 Bankr. 407 (S.D.N.Y. 1987); In re A.H. Robins Co., 88 Bankr. 742 (E.D.Va. 1988), aff' d, 880 F. 2d 694 (4th Cir.), cert. denied, 110 S. Ct. 376 (1989).

  7. The effect of prior determinations in an adjudication is illustrated in Section II.

  8. See. e.g,. Johnson and Heler, “Compensation for Death by Asbestos,” Industrial and Labor Relations Review, XXXVII (1984), p.529.

  9. Pamela Gilbert, Legislative Director, Public Citizen's Congress Watch. Meeting Transcript. Jan. 11. 1990, p. 251. She also noted that: 'The four critical roles that the tort system plays are: to compensate, to provide incentives, to provide information disclosure, and citizen empowerment." Ibid., p. 250.

  10. See, e.g., Daniel Berger, Attorney. Berger, Montague, Meeting Transcript. Jan. 11, 1990, pp. 76-78 (expressing concern that administrative agencies would not act independently); Professor Robert Rabin, Stanford Law School, Meeting Transcript. Oct. 26,1989, pp. 101 - 102 (“My inclination would be to go to a court using special masters in an imaginative and extensive way, in part because it would allow greater flexibility than setting up and putting in place a huge administrative apparatus”); Judge Jack B. Weinstein, U.S. District Court for the Eastern District of New York, Meeting Transcript, Dec. 1. 1989, p. 155, who stated:

      I prefer courts. There will be more satisfaction I think by the populace generally if you have somebody who is more visible. The judicial robe will I think give people more assurance when they are very unsure of their rights. It seems to me desirable from a psychological point of view to let them be exposed to people and institutions that they have more faith in. Administrators are very good but you don't know who they are and people are always a little concerned about what is often referred to, in an unnecessarily critical way, as faceless bureaucracies.

    But see Henry Gill, Deputy General Counsel for Litigation, Department of Energy. Meeting Transcript, Jan. 11, 1990, p. 248 (who would “opt for a system outside of adversarial litigation.”); Robert Willmore, Attorney. Arent, Fox, Kintner, Plotkin and Kahn, Meeting Transcript, Feb. 7, 1990, p.335 (“Within a few months after the incident everyone would realize that courts couldn't handle the number of claims.”); Jay Silberg, Attorney, Shaw, Pittman, Fox and Trowbridge, Meeting Transcript. March 15. 1990, p. 356 (“Individual damage determinations. however, could be established more easily. in a timely manner, with equal regard for correct and equitable results through a more informal administrative system”).

  11. The only claim experiences have been losses at Three Mile Island and miscellaneous other claims. Gourley, Wilcox and Marrone, “The Nuclear Liability Claims Experience of the Nuclear Insurance Pools,” The Price-Anderson Law: Six Reports on Price-Anderson Issues (Farmingtom, Conn.:ANI/MAELU. 1985).

  12. See, e.g., Gilbert, Meeting Transcript, pp. 232, 235; Rabin, Meeting Transcript. pp. 180-82; Weinstein, Meeting Transcript, pp. 173-80; A.H. Wilcox, Attorney, Pepper, Hamilton and Scheetz, Meeting Transcript, Sept. 27, 1989, pp. 17-18. See also Marcus Rowden. Attorney, Fried, Frank. Harris, Shriver and Jacobson, Written Statement, April 27, 1990, p. 2. Compare Jeffrey Lubbers, Research Director, Administrative Conference of the United States, Meeting Transcript, March 16, 1990 (describing problems associated with administrative resolutions of tort claims against the United States; Recommending an approach utilizing alternative dispute resolution mechanisms).

  13. Act 170(n)(2), 42 U.S.C. 2210(n)(2), provides:

    “With respect to any public liability action arising out of or resulting from a nuclear incident. the United States district court in the district where the nuclear incident takes place, . . .  shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy.”

  14. See, e.g., American Law Institute, Complex Litigation Project, Tentative Draft No. 24, 27-31 (April 6, 1990) [hereinafter Complex Litigation Draft]; Report of the Federal Courts Study Committee, 44-45 (1990) [hereinafter Federal Courts Study Report]. Compare Multiparty, Multiforum Jurisdiction Bill, H.R. 3406. 101stCong., 1st sess. (1989), as amended by Rep. Robert Kastenmeier (creating federal jurisdiction in tort cases involving more than 25 natural persons suffering injuries in excess of $50,000 per person when there is minimal diversity).

  15. In Lewinter v. General Public Utilities Corp., C.A. No. 88-1550 (M.D. Penn. March 16, 1990), the jurisdictional provision of the Act 170(n)(2), 42 U.S.C. 2210(n)(2), was declared unconstitutional on the theory the case — a claim under the Act outside the context of an ENO — did not “arise under” federal law. To remedy the perceived problem, the Act should be amended to provide that federal law governs all claims. As noted in subsection (d) of this Section, the Commission recommends formal recognition of federal law for other reasons as well.

  16. Atomic Energy Act of 1946. Act of Aug. 1. 1946, 60 Stat. 755.

  17. Pacific Gas & Elec. Co. v. State Resources Conservation & Development Comm'n. 461 U.S. 190, 207 (1983), citing H.R. Rep. No. 2181, 83d Cong., 2d sess., 1-11 (1954). See also Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519 (1978); Power Reactor Development Co. v. Electrical Workers, 367 U.S. 396 (1961).

  18. Act 170(e)(2), 42 U.S.C. 2210(e)(2).

  19. Act 170(n)(2), 42 U.S.C. 2210(n)(2).

  20. 28 U.S.C. 1407.

  21. Act 11(hh), 42 U.S.C. 2014(hh).

  22. Act 170(n)(1), 42 U.S.C. 2210(n)(1).

  23. Act 170(c) and (e), 42 U.S.C. 2210(c) and (e).

  24. Act 170(n)(2), 42 U.S.C. 2210(n)(2); Lewinter v. General Public Utilities Corp., C.A. No. 88-1550 (M.D. Penn. March 16,1990).

  25. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238,256 (1983)(“No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability.”).

  26. Act 11 (hh), 42 U.S.C. 2014(hh).

  27. See Klaxon Co. v. Stentor Elec. Mfg. Co, 313 U.S. 487 (1941)(choice-of-law rules are substantive and apply in diversity cases). See generally Lowenfeld, “Mass Torts and the Conflict of Laws: The Airline Disaster”, University of Illinois Law Review, 1989, p.157. Compare also In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979,500 F.Supp. 1044 (N.D.Ill. 1980) (choice of law discussion), rev'd in part, aff'd in part, 644 F.2d 594 (7th Cir.), cert. denied, 454 U.S. 878 (1981). See also Wilcox, Meeting Transcript, pp. 57-58 (noting that some claimants in the Three Mile Island litigation have argued for the application of Mississippi's statute of limitations).

  28. Act 170(n)(1), 42 U.S.C. 2210(n)(1) (specifying defenses based on fault, charitable and governmental immunity, and certain time bars); Act 11 (j); 42 U.S.C. 2014(j)(defining an ENO).

  29. See supra, Chapter 1, n. 10.

  30. ALI, Complex Litigationn Draft, 5.05, p. 97-111, (noting that issue preclusion will apply if intervention will advance the “efficient. consistent. and final resolution of asserted and unasserted claims;” and if neither parties nor nonparties are unduly prejudiced. Price-Anderson claims would meet these requirements).

  31. Compare Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 114 (1968) (an absent party may “be bound . . . because, although technically a nonparty, he had purposely bypassed an adequate opportunity to intervene.”) with Martin v. Wilks, 109 S.Ct. 2180 (1989) (despite knowledge of the lawsuit and knowledge of the injury, nonparties cannot be bound).

  32. Compare Mullane v. Central Hanover Bank & Trust Co.. 339 U.S. 306 (1950) (binding non-appearing beneficiaries to a judicial settlement of accounts). The plan reduces the litigants' costs of prosecuting their cases, gives latecomers some assurance that the fund will remain solvent and facilitates recovery for those claimants whose injuries are generically determined to be compensable,

  33. Compare Mennonite Board Of Missions v. Adams, 462 U.S. 791 (1983) (implying that personal service is not required if mortgagees fail to make their addresses known).

  34. Some schemes that share with the Act the technique of encouraging industry through limitations on liability actually substitute the United States as a defendant. See, e.g., the Swine Flu Immunization Program, 42 U.S.C. 247b; the National Vaccine Injury Compensation Program of 1986, 42 U.S.C. 300aa-10 et seq. (the National Childhood Vaccine Injury Act). This substitution has three ramifications. First, the United States can rely on the Department of Justice to defend its fiscal interests. Second, the cases are no longer considered “at common law,” and thus trials by jury are not required by the seventh amendment. See, e.g.. Glidden v. Zdanok, 370 U.S. 530, 572 (1962); McElrath v. United States. 102 U.S. 426, 440 (1880). Third, punitive damages me generally considered unavailable in suits against government entities. See, e.g., Newport v. Facts Concerts, Inc., 453 U.S. 247 (1981); Dobbs, Keeton and Owen, Prosser and Keeton on Torts (5th ed. 1984). p. 12.

  35. Act 170(e)(2).42 U.S.C. 2210(e)(2).

  36. Act 170(m), 42 U.S.C. 2210(m).

  37. Act 170(o)(1)(A), 42 U.S.C. 2210(o)(1)(A).

  38. Compare Robert Vessey, Director of Disaster Services. American Red Cross, Meeting Transcript, Feb. 7. 1990, p. 321 (noting some inadequate responses to warnings of natural disasters); Edward Hermanson. Vice President, Property Claims Services, Meeting Transcript, Dec. 1. 1989. p.140 (noting that. as of time of testimony, a small percentage of claims arising from Hurricane Hugo had not closed); Jack Wilz, Assistant Vice President. State Farm Fire and Casualty, Meeting Transcript, Dec. 1. 1989. p. 142 (anticipating the difficulty of closing nuclear claims quickly).

  39. Illustration: The threat of imminent release of radiation at a nuclear reactor leads to the evacuation of significant numbers of area residents. The court where an action is filed could preliminarily determine to invoke the plan and, pending approval by the MDL Panel, begin to set up registries and blood depositories. In Phase Two proceedings, however. the court might, after due consultation with experts and a hearing, decide that the criteria for invoking the plan were not met.

  40. It may be argued that the proposed federal-law provision. which abrogates state rights of action in favor of a federal claim, has the effect of bringing Price-Anderson claims within the “public rights” doctrine where jury trials are not required. See Tull v. United Slates, 481 U.S. 412 (1987)(no jury required to determine penalty under Clean Water Act); Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442 (1977)(administrative enforcement of the Occupational Safety and Health Act [OSHA] does not violate seventh amendment). Compare Duke Power Co. v. Carolina Enviromnental Study Group, Inc., 438 U.S. 59, 89 (1978) (speaking of the Act as abrogating common-law rights of recovery). However, recent case law sheds considerable doubt on this argument. See Local 391 v. Terry, 110 S.Ct. 1339 (1990) (emphasizing relevance of money damages to determination of jury trial right); Granfinanciera, SA. v. Nordberg, 109 S.Ct. 2782 (1989) (noting limits to “public rights” doctrine). See also Curtis v. Loether. 415 U.S. 189 (1974)(finding a jury required in housing rights actions under the Civil Rights Act of 1968).

  41. Illustration: A firm that packages produce at a location remote from the accident site files an action, claiming that it has suffered business losses because it can no longer buy raw materials from farms located in the vicinity of the incident. The issue whether this claim is actionable is a legal issue, decided by the court without a jury.

  42. Compare Liberty Oil Co. v. Condon Nat'l Bank, 260 U.S. 235 (1922) (distribution of stake is an equitable action).

  43. See, e.g., Lehman v. Nakshian, 453 U.S. 156 (1981).

  44. See supra, n. 40.

  45. This view was shared by witnesses. See, eg., Marianna Smith, Executive Director, Manville Trust, Meeting Transcript. Oct. 25, 1989, p. 78. It should also be noted that the limits of the public rights doctrine are poorly understood and the Justice Department has not been enthusiastic about substituting the United States as the defendant in these cases. See Berkovitz “Price-Anderson Act: Model Compensation Legislation? — the Sixty-Three Million Dollar Question.” 13 Harv. Envtl. L. Rev. 1. 36 (1989).

  46. Compare Fed.R.Evid. 201, which contemplates judicial notice of information not in reasonable dispute. An example may be whether a certain level of exposure is nonactionable as below the level of background radiation. Conclusive presumptions could, however, be reexamined if new evidence were found. That procedure is discussed in the subsection titled “Reconsideration.”

  47. Illustration: Immediately after the incident, A and B — who have both registered — each file an action claiming loss of wages on account of illness suffered as a result of the incident. In the generic phase, the court determines conclusively that such illness is caused from exposure in the X-Y range; it presumes that below that level. no such illness occurs. A's blood analysis demonstrates exposure within the range; B's analysis reveals exposure below the threshold. Causation cannot be questioned in the case of A: A can choose a fixed Option 1 recovery or have the Claim Master calculate an award based on actual losses. Neither option will be available to B. However, B could get to the jury on the issue of causation.

  48. The legal community has, for example, assumed the constitutionality of various case management techniques despite the burdens they may place on the right to trial by jury. See, e.g., Federal Courts Study Report, p. 81-87; 99-100. The contemplated waiver of rights would be considered an exchange for the limitations on punitive damages and the scheduling of nonpecuniary damages.

    As to the constitutionality of presumptions: See Cleary, ed., McCormick on Evidence (3d ed. 1984), p. 969 (presumptions are constitutional so long as they are rational); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)(upholding legislatively-imposed presumptions in black lung compensation program); In re Bendectin Litigation, 857 F.2d 290 (6th Cit. 1988)(noting in dicta that courts can infer presumptions from statutes and apply them in jury-tried cases) cert. denied, 109 S. Ct. 788 (1989).

    See also Gasoline Producis Co. v. Champlin Refining Co., 283 U.S. 494 (1931)(permitting court to order a new trial on certain questions after jury verdict); Galloway v. United States,319 U.S.372(1943)(upholding constitutionality of directing a verdict in a jury-tried case); Grunenthal v. Long IsLand Rail Road Co., 393 U.S. 156 (1968)(upholding constitutionality of remittitur after jury verdict).

  49. Act 170(e)(2). 42 U.S.C. 2210(e)(2).

  50. Act 170(I)(2); 42 U.S.C 2210(i)(2). Under this plan, generic hearings would be held in Congress, which would then issue presumptions applicable in later litigation. Compare National Vaccine Injury Compensation Program, 42 U.S.C. 30aa-10 et. seq. There may, however, be a retroactivity problem with redefining rights after they have “vested.” But if the statute contains limits that make clear that rights will be defined after the event, this problem may not be substantial.

  51. Illustration: A files a claim asserting that she contracted acute radiation syndrome on account of the incident and asking compensation for her medical costs, lost wages, and pain and suffering. Her Option 2 award would include her actual medical costs and lost wages. Her award for pain and suffering would be based on a schedule as recommended in Chapter 3. If A disagreed with the Claim Master on the magnitude of her recovery, she could demand a jury trial on the issue. However, the award for pain and suffering would nonetheless be based on the schedule.

  52. Fed. R. Evid. 706 advisory committee's note.

  53. Ibid.

  54. See, e.g., In re “Agent Orange” Product Liability Litigation, 611 F. Supp. 1267 (E.D.N.Y. 1985)(granting summary judgment against an opt-out plaintiff in the Agent Orange litigation), aff'd, 818 F.2d 187 (2d Cir. 1987). cert. denied, 108 S.Ct. 2898 (1988).

  55. See Fed. R. Evid. 301, advisory committee's note.

  56. 28 U.S.C. 1292(b).

  57. The number of disputes is likely to exceed the number of injured parties because parties with immediate personal or property damage may come back to court when latent injuries surface. Furthermore, if claims are prioritized, claimants may, in fact, be required to bring more than one action.

  58. See Feinberg, “Me Dalkon Shield Claimants Trust Claims Resolution Facility,” paper presented before the Conference on Mass Settlements of Mass Torts, Duke University School of Law, 1989.

  59. For example, parties claiming injuries from the Dalkon Shield can recover $725 upon submission of an affidavit of injury. Ibid.. p. 11.

  60. For example, Kirke Sauer. Claim Manager, Mutual Atomic Energy Liability Underwriters, Meeting Transcript. Sept. 27, 1989. p. 19; Wilcox, Meeting Transcript, p. 20.

  61. Illustration: A. a farmer, files an action claiming personal injury from acute radiation syndrome and business losses and property damage caused by contamination. The farm is located in the zone of injury and A's blood demonstrates exposure. A could obtain fixed payments for personal, business, and property damage under Option 1 or individualized treatment under Option 2. If Option 2 is chosen, the Claim Master will evaluate the extent of exposure using the blood analysis and may seek the views of the Medical Assessment Panel on the question whether A suffered acute radiation syndrome. The award will be calculated on the basis of proof of A's expenses (e.g., medical bills), past profits (e.g., business records), and the Property Assessment Panel's evaluation of the value of the farm land. Recovery for nonpecuniary losses, such as pain and suffering and loss of community, would be based upon a schedule and would be available only if A chose Option 2. Had A's personal injury been leukemia, which is not uniquely caused by radiation, recovery for personal injury and related losses would be based an the recommendations; of Chapters 3 and 4.

  62. Illustration: Four years after the incident, A files a claim asserting that he suffers from leukemia, an illness A claims was caused by the incident. The Claim Master decides that A's exposure was of X magnitude and, using the rebuttable determination that the probability that this exposure caused leukernia is Y, calculates an award based upon the recommendations of Chapters 3 and 4. Thus. if Y is less than 0.5, the award will be proportioned.

    1. A can challenge the rebuttable determination of the link between exposure X and leukemia. If current tort law standards are used, A will be required to prove by a preponderance of the evidence that the leukemia was caused by the incident. If A sustains this burden recovery will encompass all pecuniary losses; nonpecuniary losses will be compensated on a schedule. If A loses, A can no longer ask for damages based on proportionate recovery.

    2. A can challenge the Claim Master's determination that the magnitude of exposure was X. A will be required to decide whether, if the court determines the exposure was greater than X. the case should be remanded or the court should go on to determine specific causation. In the former instance, A's compensation will depend on the proportionate recovery tables. In the latter, the observations made in the previous paragraph will apply.

    3. The defendant can demand binding arbitration on the question of the magnitude of A's exposure or the link between exposure and leukemia. However. once the arbitrator determines the extent of exposure and the relationship between the exposure and leukemia, the defendant cannot challenge the use of the proportionate recovery tables to determine A's compensation.

  63. See supra, nn. 2-6.

  64. C.A. No. 88-1550 (M.D. Penn. March 16,1990).

  65. Act 170(n)(2); 42 U.S.C. 2210(n)(2).

  66. 28 U.S.C. 1332

  67. 28 U.S.C. 1407.

  68. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) (dismissing cases on the ground that they should be refiled in a more convenient forum).

  69. However, in Lewinter, plaintiffs may argue that the issue is not ripe for review. If, indeed, this decision is considered as merely a remand (rather than an adjudication of the constitutionality of a federal statute), it may be unreviewable, 28 U.S.C. 1447(d); Thermtron Prods., Inc., v. Hermansdoyfer, 423 U.S. 336 (1976). Although the district court certified the question under 28 U.S C. 1292(b), that provision covers the timing of reviewable decisions, it does not make appealable that which cannot be reviewed. Furthermore, 1292(b) applies only to a “controlling question of law” whose immediate appeal “may materially advance the ultimate termination of the litigation.” Plaintiffs may say that it is not clear that the remand order meets either criterion.

  70. The Lewinter defendants can make substantial arguments that Price-Anderson claims contain enough federal elements to “arise under” federal law for jurisdictional purposes. This would be even more true with regard to claims caused by accidents where the waivers of defenses provisions apply. Furthermore, as the Lewinter defendants may argue, the choice-of-law provision, Act 11(hh), 42 U.S.C. 2014(hh), could be read as mandating use of state law as a matter of federal law, compare, e.g., Fed.R.Civ.P. 17(b)(looking to state law to determine the capacity to sue in federal court); De Sylva v. Ballentine, 351 U.S. 570 (1956) (relying on state-law definition of “child” to determine renewal rights under the Copyright Act of 1909). If so, the entire case “arises under” federal law for jurisdictional purposes.

  71. 28 U.S.C. 1407. 28 U.S.C. 1391. which defines the venue of federal district courts, is apparently not abrogated by the Act. Accordingly, cases may be filed in federal courts outside the district where the accident occurred. Similarly, the law does not require removal of state cases, so a few disputes may remain in state courts. Finally, 28 U.S.C. 1441(a), creating removal jurisdiction, apparently remains in force. This would permit removal of a state case filed outside the state of the accident to a federal court outside the district of the accident.

  72. Compare 28 U.S.C. 2283 (barring federal courts from staying state proceedings). But see Federal Courts Study Committee Report, p. 45 (recommending that 28 U.S.C. 1407 be amended to consolidate federal cases for all purposes); Complex Litigation Project, 5.01 pp. 27-61 (recommending intersystem consolidation procedures). Of course, if Congress enacts the Multiparty, Multiforum Jurisdiction Bill (see supra, n. 14), consolidation in federal court will be readily available.

  73. Act 170(n)(3)(A), 42 U.S.C. 2210(n)(3)(A).

  74. Act 170(n)(3)(B)(ii), 42 U.S.C. I 2210(n)(3)(B)(ii) (requiring consent of the chief judges of the relevant districts).

  75. Act 170(n)(3)(C)(iii) and (iv), 42 U.S.C. I 2210(n)(3)(C)(iii) and (iv).

  76. 28 U.S.C. 1404(a).

  77. Act 11(hh), 42 U.S.C. 2014(hh).

  78. See, e.g., United States v. Standard Oil Co., 332 U.S. 301, 305 (1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943).

  79. See, e.g., Amending the Atomic Energy Act of 1954, as Amended, S. Rep. 296. 85th Cong., 1st sess. 9 (1957) (hereinafter S. Rep. 296] (noting that “the rights of third parties who are injured are established by State law.”); Amendments to the Price-Anderson Indemnity Provisions of the Atomic Energy Act of 1954, as Amended, Pertaining to Waiver of Defenses, S. Rep. 1605. 89th Cong., 2d sess., reprinted in 1966 U.S. Code Cong. & Admin. News 3201, 3206 (“Since its enactment by Congress in 1957 one of the cardinal attributes of the Price-Anderson Act has been its minimal interference with State law.”); S. Rep. 454, 94th Cong., Ist Sess. 16, reprinted in 1975 U.S. Code Cong. & Admin. News 2251, 2265 (“Tbe above provisions [1975 extension and amendment of the Act] are in no way intended to create any causes of action not in accordance with existing law or to derogate any existing causes of action.”). Compare Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251-55 (1983) (interpreting the Act as leaving state law in place)(dictum).

  80. In re “Agent Orange” Product Liability Litigation, 635 F.2d 987 (2d Cir. 1980), cert. denied, 454 U.S. 1128(1981). See also Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630(1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77 (1981).

  81. Act 11 (hh), 42 U.S.C. 2014(hh).

  82. In other words, the court may read the statute as a federal choice-of-law rule instead of as a directive to analogize to Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), and use the incident state's choice-of-law rule.

  83. In re “Agent Orange” Product Liability Litigation, 100 F.R.D. 718, 724 (E.D.N.Y. 1983). aff'd, 818 F. 2d 145 (2d Cit. 1987). cert. denied, 484 U.S. 1004 (1988).

  84. See, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (permitting Minnesota to apply its own law to a dispute arising in Wisconsin in part because the claimant had moved to Minnesota).

  85. But see Silkwood v. Kerr-McGee Corp., 464 US. 238, 253 (1983) (“When it enacted the Price-Anderson Act, Congress was well aware of the need for effective national safety regulation. In fact, it intended to encourage such regulation. But. at the same time, 'the right of the State courts to establish the liability of the persons involved in the normal way [was] maintained'.”), citing S. Rep. 296, 85th Cong., 1st sess. 22 (1957).

  86. See, e.g., Phillips Petroleum Co. v. Shuttts, 472 U.S. 797 (1985) (Kansas cannot constitutionally apply its own law to non-Kansas leases held by non-Kansas claimants). But see Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) (giving states authority to impose their own statutes of limitations on foreign causes of action). It also should be kept in mind that in this case the directive to apply a single state's law would be congressionally mandated.

  87. Compare Ferens v. John Deere Co., 110 S.Ct. 1274 (1990). In that choice-of-law case. the Supreme Court majority noted the “elaborate survey of the law, including statutes of limitations, burdens of proof, presumptions. and the like” that can be required when state laws are implicated in federal cases. Ibid., p. 1282. In dissent, Justice Scalia echoed this problem, stating: “Tbe current edition of Professor Leflar's treatise on American Conflicts Law lists 10 separate theories of choice of law that are applied, individually or in various combinations, by the 50 States. See Leflar, McDougall III and Felix, American Conflicts Law 86-91, 93-96 (4th ed. 1986).” 110 S.Ct. at 1287 n.2.

  88. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 114 (1968).

  89. Martin v. Wilks, 109 S.Ct 2180 (1989). See also Humphreys v. Tann, 487 F.2d 666 (6th Cir. 1973) (holding that plaintiff. whose attorney had participated in decision to try a test case, can nonetheless not be bound by the result), cert. denied. 416 U.S. 956 (1974).

  90. Compare Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (discussing personal jurisdiction over absentee plaintiffs in state court class action).

  91. Such an action would be maintainable if the claimants can show that relief to any one of them would impede the others' rights as a practical matter. But if the United States will cure any deficits in funding and if punitive damages are made unavailable, there is no practical impediment to full relief to all claimants.

  92. Fed.R.Civ.P. 23(b)(3) and (c)(4) (certification on particular issues); 23(c)(2) (permitting opt outs)

  93. Compare In re Northern District of California Dalkon Shield IUD Products Liability Litigation, 693 F.2d 847 (9th Cir. 1982) (reversing certification of class action), cert. denied, 459 U.S. 1171 (1983)

  94. See, e.g., Atlantis Development Corp. v. United States, 379 F.2d 818 (5th Cit. 1967). Compare Martin v. Wilks, 109 S.Ct. 2180, 2185-86 (1989) (implying that absent parties could have been joined under Rule 19).

  95. Act 170(n)(2), 42 U.S.C. 2210(n)(2).

  96. 339 U.S. 306 (1950) (requirements for personal jurisdiction).

  97. Should claims be made against the United States in the Claims Court. see Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59.94 n.39 (1978). the Justice Department will. in accordance with current procedures, assume the defense.

  98. Act 170(o)(1)(A), 42 U.S.C. 2210(o)(l)(A).

  99. Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494 (1931).

  100. See In re Bendectin Litigation, 857 F.2d 290 (6th Cir. 1988) (upholding the constitutionality of an order in which liability, causation, and damages were each to be tried separately), cert. denied, 109 S. Ct. 788(1989); Conplex Litigation Draft, pp. 14-17.

  101. Compare In re Bendectin Litigation, 857 F.2d 290 (6th Cir. 1988) (conferring broad authority on the court to conduct separate trials on common issues, albeit in a context in which the common issues were tried to a jury), cert. denied, 109 S. CL 788 (1989).

  102. The problem presented by the use of Fed.R.Evid. 706 is that although the Act authorizes the court to award “legal costs” from the fund, Act 170(o)(2), 42 U.S.C. 2210(o)(2), “legal costs” are defined as “costs incurred by a plaintiff or a defendant in initiating, prosecuting, investigating, settling. or defending claims or suits,” 11 (jj), 42 U.S.C. 2014 (jj). The cost of a court appointed expert may not be regarded as “incurred” by the parties. But see Fed.R.Civ. 706(b) (“compensation shall be paid by the parites”).

  103. 28 U.S.C. 1291.

  104. 28 U.S.C. 1292(b).

  105. See, e.g.. United States v. Mendoza. 464 U.S. 154 (1984); Commissioner v. Sunnen, 333 U.S. 591 (1948); Restatement (Second) of Judgments 28(5) (1982).

  106. See also Fed.R.Civ.P. 60.

  107. This provision states that reference to masters is the “exception and not the rule” and requires a showing of exceptional circumstances.

  108. See, e.g., Reilly v. United States, 863 F.2d 149 (1st Cir. 1998); Silberman, “Judicial Adjuncts Revisited: The Proliferation of Ad Hoc Procedure,” University of Pennsylvania Law Review, 137 (1989), pp. 2131, 2168-69.

  109. Act 170(n)(3)(C)(iv), 42 U.S.C. 2210(n)(3)(C)(iv).

  110. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

  111. 28 U.S.C. 651-58.

  112. See Federal Judicial Center on Court-Annexed Arbitration in the Middle District of North Carolina, the Western District of Missouri, the Northern District of California, the Middle District of Florida, the District of New Jersey, the Western District of Oklahoma, the Eastern District of Pennsylvania. the Western District of Michigan, the Eastern District of New York, and the Western District of Texas (1989).

  113. Federal Courts Study Report, p. 83.

  114. Compare Manual for Complex Litigation 30.47 (suggesting flexibility in the manner in which class relief is administered).

  115. See, e.g., Schlagenhauf v. Holder, 379 U.S. 104 (1964).

  116. Fed.R.Civ.P. 11, 26(g) and 37(c).

  117. Act 170(o)(1)(D) and (o)(2)(B)(ii)(I), 42 U.S.C. J 2210(o)(l)(D) and (o)(2)(B)(ii)(I).


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