Special Juries in Toxic Tort Litigation

Dan Drazan

Editors' Summary: Toxic tort cases often involve thousands of documents, procedural complexities, and difficult scientific and legal issues. The ability of our legal system to rationally resolve these cases depends on the competence of the factfinder to evaluate the volumes of technical evidence generated in these cases. The author argues that the complexities of these cases are beyond the abilities of lay juries and judges. He proposes that special juries of persons with scientific and medical training be used in complex toxic tort cases. Only such juries, the author asserts, can rationally evaluate the epidemiological studies and other evidence used to show causation in toxic tort cases.

Mr. Drazan is a recent graduate of Benjamin N. Cardozo School of Law. He will be joining the Environmental Protection Agency in the fall.

[19 ELR 10298]

The common sense of the common man … cannot be brought to bear unless there is comprehension of the facts and the law.¹

Special juries do not exist, as many people seem to suppose, by the authority of a modern statute; on the contrary, they are as ancient as the law itself.²

The post-World War II industrialization that has raised our standard of living has also generated products and by-products gravely dangerous to human health. Toxic substances in our homes, our factories, and in the environment cause many diseases, including cancer.³ Environmentally induced cancer and disease are now considered public health problems.⁴

Armed with scientific and medical data linking human diseases with exposure to toxic substances, thousands of persons have filed toxic tort claims against the federal government and private industry.⁵ Claims against the federal government include those made by plaintiffs with injuries stemming from radiation exposure caused by the testing of atomic bombs and from the government-sponsored swine flu vaccination program. In the private sector, thousands of claims have been brought for injuries stemming from exposure to asbestos, the drug diethylstilbestrol (DES), the intrauterine device (IUD), the defoliant agent orange, and for injuries stemming from exposure to such hazardous substances in the environment as dioxin, lead, benzene, and arsenic.

The extensive documentation of toxic substances, ironically, has also made it very difficult for many victims to recover under existing common tort law. Scientific data suggest that there may be many sources for an individual's injury. It is precisely this uncertainty, due to factors unique to toxic exposure, that makes toxic torts fundamentally different from traditional tort cases. Unlike traditional tort cases where there is an immediate wrong and injury, the typical toxic tort claim stems from chronic misconduct and the injury/disease only manifests itself many years after exposure. This long latency period makes it very difficult for the plaintiff to show that the defendant's conduct caused his or her injuries and not such other factors as ambient toxic substances, diet, lifestyle, and smoking. Determining the cause of the latent injury is "one of the major obstacles facing the plaintiff in a court action for exposure to hazardous waste."⁶ There is widespread agreement that providing causation is the largest barrier to recovery in toxic tort cases.⁷

[19 ELR 10299]

Briefly stated, the plaintiff must prove by a preponderance of the evidence that the defendant's conduct caused his or her injury.⁸ To satisfy this test, the plaintiff must show that the injury was caused not by the multitude of toxic chemicals to which he or she was exposed over the latency period, but by exposure to the toxic substance under the defendant's control or responsibility. To help tackle the causation issue, lawyers for both sides have turned to scientific data. Such documents as epidemiological studies and their respective mathematical models are now essential for toxic tort litigation.⁹ Courts recognize that these studies are important to resolving the causation issue and are increasingly admitting them into evidence.¹⁰ But can judges, and particularly lay juries, comprehend and properly evaluate this complex and technical evidence? Unfortunately, there is scant data on jury performance in civil actions.¹¹ However, as society and its legal issues become more complex, jury duty also becomes more difficult. For example, uncertainties, probabilities, and competingexpert opinions are inherent to epidemiological evidence. One lawyer who has studied the role of such studies in the courtroom warns that they can prejudice and overly confuse the jury.¹² For example, a study's finding that the defendant's conduct increased the plaintiff's risk of injury may cause the jury to improperly conclude that the defendant's actions actually caused her injuries.¹³ This concern is compounded by the belief that jurors often rely on their instincts of right and wrong, and not the facts and law, to decide complex cases.¹⁴

Courts have held that certain kinds of litigation and the issues they present may, on a case-by-case basis, be too complex and difficult for the jury.¹⁵ Antitrust and securities litigation are two such kinds of cases. As shown below, toxic tort litigation also presents many of the same kinds of problems for jurors as antitrust and securities litigation, and therefore may be too complex for juries.

The purpose of this Article is to add an issue to the ongoing debate of toxic tort reform — whether toxic tort litigation is too complex for lay jurors. Toxic tort cases are often unique and complex. Little is gained from the debate if jury incompetence is ignored and is subsequently found to be the weak link in toxic tort litigation.

This Article concludes that complex scientific and medical evidence, coupled with the voluminous discovery necessary to account for the latency period, are beyond the jury's reach. It proposes that special juries made of scientific and medical experts from many fields be used in complex toxic tort cases. The special jury, while not widely used in the United States, has historical precedent in England dating back to the 1600s.¹⁶ Of course, a special jury would need to pass constitutional muster and not violate the Seventh Amendment's guarantee of a trial by jury or the Due Process Clause. As discussed below, the due process concern is procedural and centers around ensuring that the jury represents an impartial cross section of the community. A carefully tailored program for selecting and using special juries can satisfy these concerns.

It is often said that litigation is the best way for discovering the truth and ensuring justice. Presently, plaintiffs who have been injured from exposure to toxic substances face many legal obstacles to establishing their cases. Courts are easing these burdens by permitting the use of epidemiological studies and statistical analyses. In return, jurors trained in the sciences can ensure that this valuable information is given fair treatment and that informed decisions result.

This Article first discusses how toxic tort cases are unlike other tort cases, the differences between legal and medical causation, and the use of epidemiological studies to show causation. It then examines why these studies are too difficult for jurors to understand and compares the complexities of toxic tort cases to antitrust and securities litigation. Finally, it examines the historical use of special juries in both England and the United States, discusses the constitutional issues they raise, and proposes using special juries in toxic tort litigation.

Unique Legal Challenges of Toxic Torts

Legal Causation

In the typical personal injury tort case, the tortious behavior and resulting injury are almost simultaneous.¹⁷ If a person is injured by a malfunctioning piece of equipment or from acute chemical exposure, there is little doubt what caused the immediate injury and who was responsible. The plaintiff can quickly identify the cause of his or her injury, gather the necessary evidence on how the event occurred, and easily name the responsible defendant.

Toxic tort cases are fundamentally different, especially environmental exposure claims for toxic waste injuries. The most obvious difference is that the tortious behavior and resulting injury are never contemporaneous. First, exposure to the toxic substance is chronic and often extends over many years. The resulting disease or cancer does not manifest itself until many years after exposure has ceased. Cancer, for instance, typically does not appear until 7-20 years after exposure to a carcinogen.¹⁸ In toxic waste cases, there is an estimated 20-30 year latency period between exposure and manifestation of injury.¹⁹ The long latency period makes it very difficult for the plaintiff to prove [19 ELR 10300] causation.²⁰ Since injury does not immediately result from toxic exposure, the exposure creates only a risk that a disease or cancer may manifest itself many years later. However, during this latency period the plaintiff is exposed to multiple environmental chemicals that may be injurious. These chemicals interact with each other and have synergistic effects on the plaintiff. As a result, the plaintiff often cannot isolate a single responsible pollutant.²¹ Yet, the traditional tort system requires that the plaintiff isolate a specific toxic agent and satisfy a "but for" test of causation: but for the defendant's conduct the injury would not have occurred.²² In other words, the plaintiff's burden of proof requires the following:

* identifying the toxic substances that substantially caused the injury;

* showing that exposure to this toxic substance was in the duration and concentration that scientists believe can cause the injury;

* identifying the party or parties responsible for the exposure; and

* eliminating ambient toxic substances, lifestyle, diet, and other "background risks" as substantial factors.²³

Medical Causation vs. Legal Causation

The preceding section examined the plaintiff's burden of proving legal causation. One component of this test is proving by medical standards that the chemical in question caused the plaintiff's injury. This medical causation test requires the plaintiff to show that such other factors as background chemicals, lifestyles, smoking, and diet did not substantially cause the injury. However, when scientists determine medical "causes," they do not rely on the same rigid standards used for showing legal proof. Scientific proof is essentially based on consensus judgment of possibilities.²⁴ Yet, the tort system requires showing of probabilities based on direct causal relationships.²⁵ Therefore, a valid showing of medical causation is frequently inadequate for satisfying the legal causation standard.²⁶ Legal causation requires that the plaintiff introduce expert testimony based on "reasonable medical certainty" that the alleged injury was caused by the defendant's conduct.²⁷ Despite its legal shortcomings, medical causation may be our best understanding of what "causes" diseases from environmental exposure.²⁸ Epidemiological studies play a very important role in the expert testimony of medical causation.

Epidemiological Studies Used to Show Causation

To bridge the gap between medical causation and legal causation, courts have relaxed evidentiary requirements and now widely rely on epidemiological studies.²⁹ These studies are used in many kinds of toxic tort claims,³⁰ and have emerged as a necessity in toxic tort litigation.³¹ Epidemiology is the statistical study of incidence, prevalence, and distribution of disease in human populations.³² Epidemiological studies examine high incidences of disease in a community and associate this disease rate with unusual exposures to environmental factors.³³ They involve extensive use of mathematical and statistical measurements such as comparative rations, distributions, means, standard deviations,quantiles, and correlation coefficients.³⁴ The studies explain the level of risk of injury that confronts a given community. They do not, however, suggest the level of risk facing the individual plaintiff. For example, they answer such questions as, "Does exposure to this chemical increase the incidence of cancer in the community?"³⁵ Proponents contend that these studies often are the best, if not the only, proof of causation in toxic tort claims.³⁶

Despite their promise, these studies have limitations. First, they are purely statistical in nature and study only populations and not individuals. Second, they provide only correlations between exposure and injury and do not establish cause and effect relationships for the individual plaintiff. For example, they do not answer the question whether exposure to a given chemical caused the plaintiff's injuries. Last, and perhaps most important, there are serious doubts whether lay juries are capable of understanding this complex information and handling it in an informed and impartial manner. The jury's limitation is discussed below.

Complex Litigation and Lay Juries

Epidemiological Studies Are Too Complex for Lay Jurors

Mathematical models and such statistical concepts as comparative ratios, quantiles, and correlation coefficients are the nuts and bolts of epidemiological studies. Ambiguities and competing health surveys and experts opinions are also inherent to these studies. However, the trier of fact is typically a jury — lay persons with no specialized background or training. The typical juror has, at best, a high school education.³⁷ Therefore, the trier of fact is being [19 ELR 10301] asked to analyze very complex and technical statistical and medical evidence that is outside lay competence.³⁸ It is believed that since juries lack the training and experience needed to independently assess this evidence, they often simply elect to ignore it.³⁹ Instead, jurors look to their individual attitudes, beliefs, and experiences for guidance.⁴⁰ For example, many jurors are unable to comprehend the principle that exposure to a toxic chemical dosage of one part-per-billion produces a different biological effect than exposure to the same chemical at one part-per-million. Instead, their common sense leads them to believe that "a poison, is a poison, is a poison."⁴¹

The morality issues associated with toxic torts also demonstrate how juries rely on their emotions and may disregard the medical and scientific evidence. Juries intuitively feel that it is wrong for chemicals to leach from a landfill into one's drinking water. It is immaterial that scientists cannot "prove" to the legal standard that the chemicals caused the plaintiff's injuries. For many, the fact that the plaintiff was exposed to a risk to which he or she did not consent is very troubling. As a result, they may rely on their sympathies and decide for the plaintiff regardless of the scientific and medical evidence.⁴² Commenting on juries generally, the widely respected trial lawyer Louis Nizer has said, "Although juries are extraordinarily right in their conclusion, it is usually based upon common sense 'instincts' about right and wrong, and not on sophisticated evaluations of complicated testimony."⁴³

Toxic tort litigation is very complex for additional reasons. The litigants need to account for their conduct during the long latency period and this results in reams of evidence. The jury then must digest hundreds of documents and thousands of pages of transcripts.⁴⁴ In addition, typically, there are large numbers of litigants and the trial can take between six months to more than a year. A recent dioxin exposure case lasted more than four years.⁴⁵

The Empirical Data on Juries

There exists little data on jury performance. This stems in part from federal and local statutes designed to prevent jury tampering and maintain secrecy.⁴⁶ The most extensive study in jury behavior was conducted by Harry Kalven, Jr., at the University of Chicago more than 20 years ago.⁴⁷ The Kalven study found that in ordinary personal injury cases, judge and jury agreed on the liability question 79 percent of the time.⁴⁸ However, the study did not involve complex toxic tort suits, or such similar complex cases as antitrust or securities litigation.⁴⁹ The study, however, is often cited by jury proponents to support their belief that juries perform as well as judges in deciding liability issues.

In recent writings, Judge Weinstein of the U.S. District Court of the Eastern District of New York has expressed faith in the jury system. He suggests that better control of the Federal Rules of Evidence can help make factfinding more accurate and improve jury performance.⁵⁰ Nevertheless, Judge Weinstein recognizes that mass tort actions involving delayed causation and injury, such as asbestos or environmental injury need special treatment. Noting that "compensation is delayed, expensive and erratic" in mass tort and disaster litigation, Judge Weinstein has proposed a National Disaster Court.⁵¹ While the National Disaster Court seems aimed at procedural reforms, the proposal does underscore the belief that toxic torts are inherently different from other tort litigation.

Toxic Torts Are Too Complex for the Lay Jury

Despite the sparse data on jury competence, federal courts have held that selected complex antitrust and securities suits are beyond the jury's capabilities. The juries in these cases were dismissed and bench trials were held.⁵² Each case relied on the Supreme Court's famous footnote 10 in Ross v. Berhard, which stated that courts may consider the "practical abilities and limitations of juries" to determine the "legal nature of an issue."⁵³

The courts cited the following reasons for concluding that the cases were too complex for juries: the presence of highly technical facts, huge volumes of documentary evidence, numerous parties and claims, accountability of many years of conduct, and the prospects that the trial would last many months or even years.⁵⁴ These concerns are strikingly similar to toxic tort litigation.⁵⁵ Therefore, certain toxic tort cases may also be considered too complex for the jury. Commentators have questioned whether the jury is competent to evaluate the complex and technical evidence in toxic tort cases.⁵⁶

Two toxic tort cases have tried balancing the competing interests of the right to a jury trial with the notion that complex cases may be taken from the jury. In Lowe v. Norfolk [19 ELR 10302] & Western R.Y. Co.,⁵⁷ 47 plaintiffs alleged injuries from a chemical spill. The trial court consolidated the 47 separate suits for trial, and a jury found for all 47 plaintiffs. The appellate court upset the verdicts on the grounds that the consolidation led to jury confusion of the evidence.

A totally opposite approach was taken in Kenney v. Scientific, Inc.⁵⁸ The action alleged injuries caused by exposure to a toxic waste landfill and involved 106 plaintiffs and 625 defendants. The lower court denied a jury trial because of the procedural and factual complexities, and the expected length of the trial. The court said, "a trial by jury will not be able to produce a fair and balanced result …" and ordered a bench trial. "Otherwise, the judge would [be] presiding over a game of judicial Russian roulette."⁵⁹ The Appellate Division reversed, suggesting that "good case management and organized and coherent presentation of the case by the attorneys" would be sufficient.⁶⁰

This section has argued that the complexities of toxic tort cases are of similar magnitude to antitrust and securities litigation, and thus are beyond the jury's abilities. However, it is not suggested that in these instances that bench trials be conducted. The bench, while it has access to more resources than the jury, still has its own limitations. A judge may be no more qualified to understand and handle complex and technical litigation than a lay jury. Moreover, only a jury truly ensures that the community's values are reflected in the court's decision. A jury composed of particularly qualified persons could understand and evaluate complex concepts that may be beyond either a judge or lay jury.

Specially Qualified Expert Juries

One alternative to lay juries is using "special" juries composed of individuals who are qualified experts in the fields of science and medicine.⁶¹ These "blue ribbon" juries would better understand the complex and technical concepts present in many toxic tort claims. They could evaluate the evidence in an impartial and competent manner, thereby increasing the likelihood of fair and logical decisions.

Special juries have strong historical support. Their use in civil trials in England during the 17th and 18th centuries is well documented.⁶² Special juries included merchants, cooks, "fishmongers," booksellers and printers, clerks, and attorneys.⁶³

In America, 16 states have expressly provided for special juries by statute.⁶⁴ Some states have repealed these statutes and others simply no longer use special juries.⁶⁵ A common test for invoking special juries was whether the facts of the case were "intricate and important" or "of exceptional difficulty or importance."⁶⁶ Special juries have been used in such cases as a contested will involving over 135 witnesses and voluminous documentary evidence, a railroad company's reorganization, and litigation involving stocks and bonds or banking institutions.⁶⁷ However, they have not been used in toxic tort cases.

New York once employed a system of selecting jurors of above-average intelligence for complex cases. These jurors were selected on the basis of written answers to a juror questionnaire and an interview with a jury commissioner. During the personal interview the prospective juror gave testimony under oath pertaining to his qualifications and fitness for jury duty.⁶⁸

Even though special juries have been used in the United States, this experience provides little guidance for their proposed use in toxic tort cases. Many of the special juries were designed merely to attract persons of above-average intelligence and did not require that jurors be trained in the technical subject matter of the case.⁶⁹ Further, the cases in which they were used are not as complex and difficult for jurors as today's antitrust, securities, and toxic tort litigation.

Special Juries and the Constitution

The special jury can only be employed if it satisfies the Constitution's requirements for a jury trial. The Seventh Amendment and the Due Process Clause are the controlling standards.

* The Seventh Amendment and the Historical Test. The Seventh Amendment requires that in "suits in common law … the right of trial by jury shall be preserved." Beginning with Justice Story's 1812 circuit opinion in United States v. Wonson,⁷⁰ courts have generally decided that the right to a jury trial is guaranteed in all those civil cases that would have gone to a jury under English practice in 1791.⁷¹ Since special juries were part of English procedure in 1791 as shown above, they satisfy the Seventh Amendment's historical test.

* The Due Process Clause. The procedural due process issue raised by special juries centers around the litigants' [19 ELR 10303] right to an impartial and capable jury. To ensure this protection, the Supreme Court has ruled that a litigant is constitutionally entitled to a jury drawn from a cross-section of the community.⁷² The Court said:

The American tradition of trial by jury … [is] an impartial jury drawn from a cross-section of the community. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community….⁷³

The cross-section requirement is not a knock-out punch for special juries for two reasons. First, the cases behind the cross-section requirement were concerned primarily with the discriminatory practice of excluding minorities and others for reasons unrelated to their capabilities as jurors.⁷⁴ The Court believed that such discriminatory practices prevented impartial and rational proceedings.⁷⁵ Special juries would not implicate these discriminatory practices and would be more closely aligned with the "constitutional ideals of fairness, competence, and impartiality than the traditional jury."⁷⁶ Second, the cross-section standard itself can be limited by the state.⁷⁷ The state may exclude from jury duty those individuals who are unable to perform the duties efficiently and intelligently.⁷⁸ Similarly, the Federal Jury Selection and Service Act of 1968 disqualifies from jury duty persons who are: not United States citizens; unable to read, write, speak or understand English; charged with or convicted of a felony; and persons whose physical or mental disabilities make it impossible to provide satisfactory jury service.⁷⁹ Further, despite the cross-section requirement, courts may require that juries be able "to decide the facts in an informed and capable manner."⁸⁰ Courts have also indicated that there is a due process right to a competent and rational fact finder.⁸¹ Finally, recent court decisions have recognized that lay jurors may be incapable of deciding complex cases within the spirit of the Due Process Clause.⁸² Therefore, special juries, as proposed below, do not present the kind of vice that the due process clause sought to remedy. Rather, they uphold the due process requirement for jury competence and therefore are a constitutional alternative to lay juries in complex litigation such as toxic torts.

Special Juries for Toxic Tort Cases

The Federal Jury Selection and Service Act requires that jurors be "selected at random from a fair cross-section of the community…."⁸³ In fact, a 1970 amendment specifically prohibited blue-ribbon or special juries.⁸⁴ But, as shown above, the cross-section requirement was intended to eliminate discriminatory practices of excluding persons for reasons unrelated to their abilities as jurors. Special juries, as proposed here, do not present this kind of vice. Therefore, this Article suggests the Act be amended to allow the use of special juries in toxic tort litigation. Such an amendment has been proposed for complex antitrust and securities litigation by law commentators.⁸⁵

The special jury would be composed of persons with medical and scientific training. The jury pool can be generated from government agencies and research centers, scientific and medical societies, academia, and retired persons from the business community. It is unnecessary that the potential jurors be trained in and intimately familiar with the legal and technical issues specific to each case. The pool, for example, should not be limited to only epidemiologists, persons trained in cancer research, and pollution control experts. Rather, the pool should consist of individuals capable of understanding and assessing technical medical and scientific issues. These persons should be chosen from a broad spectrum of specialties and training. Further, since scientific decisionmaking is often based on consensus,⁸⁶ a broad distribution of opinion from these fields is essential.

Perhaps the most important question in light of the due process requirements, is how the individual jurors would be selected from this pool of experts. The least controversial approach is to retain most of the traditional features of jury selection. Jury duty for these specially qualified persons would be compulsory, just as for lay jurors. They would be selected randomly from the pool. Selection would not be based on special tests or interviews. The attorneys would retain their power to examine the potential jurors and dismiss those not wanted.

A more ambitious selection procedure could be fashioned after a procedure commonly used to select arbitrators. Each side would nominate a person to select the panel, and the two would choose a third person. The three representatives would select jurors from the standing pool of qualified experts. To ensure objectivity, the judge could review the prospective panel for signs of bias, or other improper criteria such as race or gender discrimination.

Finally, the special jury would function like a regular jury. Its powers and responsibilities would be no different from lay juries. Procedural and evidentiary rules governing both the trial and jury instructions would remain unchanged to every extent possible.

Conclusion

Once a new phenomenon, toxic tort litigation is growing and here to stay. Difficult and technical issues of law and fact typify these claims. Lay jurors are being asked to digest information that is beyond their reach. Specially qualified juries can provide a constitutional solution that ensures more competent, impartial, and reasoned decisions.

1. Note, The Case for Special Juries in Complex Litigation, 89 YALE L.J. 1134 (1980), citing former Chief Justice Warren Burger in a speech to the Conference of State Chief Justices, NAT'L L.J., Aug. 13, 1979.

2. Oldham, The Origins of the Special Jury, 50 U. CHI. L. REV. 137 (1983), citing Thomas Erskine Esq., The Case of Libel, The King v. John Lambert and Others, Printer and Proprietors of the Morning Chronicle, Nov. 15, 1793 at 16 (2d ed. London, 1794).

3. Note, Tort Actions for Cancer and Deterrence, Compensation and Environmental Carcinogenesis, 90 YALE L.J. 840, 841 (1981).

4. Id.

5. For purposes of this Article, toxic tort cases are legal claims in which the individual seeks monetary damages as compensation for injuries allegedly caused from exposure to hazardous substances. Claims have been made for exposure to many kinds of toxic substances, but exposure to environmental pollutants serves as the general basis for the Article.

6. Trauberman, Statutory Reform of "Toxic Torts": Relieving Legal, Scientific, and Economic Burdens on the Chemical Victim, 7 HARV. ENVTL. L. REV. 177 (1983).

7. INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES, A REPORT TO CONGRESS IN COMPLIANCE WITH SECTION 301(e) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (PUB. L. NO. 95-510) BY THE "SUPERFUND SECTION 301(e) STUDY GROUP," PART I, THE REPORT AND COMMENTS, at 194 (Senate Comm. on Environ. and Public Works, Comm. Print, 97th Cong., 2d Sess., Serial No. 97-12, Sept. 1982).

8. PROSSER AND KEETON ON TORTS, 265-66 (5th ed. 1984).

9. Hardy, Determination of Causation in Compensation of Persons Chronically Injured by Toxic Substance Exposure, at 2 (Chicago, Kirkland and Ellis, 1983).

10. Dore, A Proposed Standard for Evaluating the Use of Epidemiological Evidence in Toxic Tort and other Personal Injury Cases, 28 How. L.J. 677, 682 (1985).

11. See infra notes 46-50 and accompanying text.

12. Dore, A Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-In-Fact, 7 HARV. ENVTL. L. REV. 429, 437 (1983).

13. Id. at 437.

14. See infra notes 39-43 and accompanying text.

15. See In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069 (3d Cir. 1980); In re Boise Cascade Securities Litigation, 420 F. Supp. 99 (W.D. Wash. 1976); In re United States Financial Securities Litigation, 75 F.R.D. 702 (S.D. Cal. 1977), rev'd 609 F.2d 411 (9th Cir. 1979), cert. denied, 446 U.S. 929 (1980); and Berstein v. United Pictures Inc., 79 F.R.D. 59 (S.D.N.Y. 1978).

16. Oldham, supra note 2, at 137.

18. Feinberg, Denial of a Remedy: Former Residents of Hazardous Waste Sites and New York's Statute of Limitations, 8 COLUM. J. ENVTL. L. 161, 163 (1982).

19. Id. at 163.

20. One exception are those few signature diseases, namely asbestosis and mesothelioma.

21. Seltzer, Personal Injury Hazardous Waste Litigation: A Proposal for Tort Reform, 10 B.C. ENVTL. AFF. L. REV. 797, 811-812 (1982-83); Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort Systems, 97 HARV. L. REV. 849 (1984).

22. Rosenberg, supra note 21, at 855-56 n.20.

23. Seltzer, supra note 21, at 822.

24. T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed., 1970).

25. Seltzer, supra note 21, at 822.

26. Id. at 822.

27. Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 19 ELR 20404 (6th Cir. 1988); Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 16 ELR 20577 (D. Mass. 1986); Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir. 1986).

28. Seltzer, supra note 21, at 814 n.71.

29. Dore, supra note 14, at 430.

30. Dore, supra note 12, at 684-86.

31. Hardy, supra note 9, at 3.

32. Dore, supra note 12, at 678.

33. Id. at 678.

34. Id. at 679. These mathematical and statistical tools are used to test the validity of the associations and correlations of exposure to injury that are identified in the community-wide study. Specifically, they help confirm the probabilities of injuries to a community as a result of its continued exposure to toxic agents.

35. Dore, supra note 14, at 431.

36. Developments in the Law, Toxic Waste Litigation, 99 HARV. L. REV. 1458, 1618 (1986); In re Agent Orange, 611 F. Supp. 1223, 1231 (E.D.N.Y. 1985).

37. Elliott, Scientific Panels in Toxic Tort Litigation: Why We Don't Use Them, at 3, Proceedings of Cornell University Institute for Comparative and Environmental Toxicology Conference (Oct. 16, 1987).

38. Seltzer, supra note 21, at 823.

39. Phone interview with Dr. Philip Anthony, Litigation Sciences (Feb. 1, 1988) (Litigation Sciences in a consulting firm on jury behavior); Elliott, supra note 37, at 9.

40. Anthony, supra note 39.

41. Elliott, supra note 37, at 6.

42. Id. at 21-22.

43. V. HANS AND N. VIDMAR, JUDGING THE JURY (1986), quoting L. NIZER, MY LIFE IN COURT (1978).

44. In re Agent Orange, 597 F. Supp. 740 (E.D.N.Y. 1984).

45. Kemner v. Monsanto, 112 Ill. 2d 223 (1986).

46. Blecher and Daniels, In Defense of Juries in Complex Antitrust Litigation, 1 THE REVIEW OF LITIGATION 75 (1980). See, e.g., 18 U.S.C. § 1508 (1976).

47. Kalven, The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1075 (1964).

48. Id. at 1065.

49. See infra notes 52-55 and accompanying text.

50. Weinstein, The Role of the Court in Toxic Tort Litigation, 73 GEO. L.J. 1389 (1985), Preliminary Reflections on the Law's Reaction to Disasters, 11 COLUM. J. ENVTL. L. 1 (1986).

51. The federal National Disaster Court would hear cases that are likely to be protracted and unusually difficult, due in part to the issues raised and the number of litigants. As proposed, the Chief Justice of the Supreme Court could assign Article III judges with particular expertise in the issues to be tried for temporary duty as needed. Questions about the circumstances that would trigger the court's operation still must be resolved.

52. See supra note 15. For the view that complexity is not a constitutionally appropriate ground for denying the right to a jury, see In re United States Financial Securities Litigation, 609 F.2d 411 (9th Cir. 1979), and ILC Peripherals Leasing Corp. v. International Business Machines Corp., 458 F. Supp. 423 (N.D. Cal. 1978).

53. 396 U.S. 531, at 538 (1970).

54. See supra note 15.

55. See supra notes 29-45 and accompanying text.

56. Seltzer, supra note 21, at 823; Elliott, supra note 37, at 13.

57. 463 N.E.2d 792, 806-810 (Ill. App. Ct. 1984).

58. 212 N.J. Super. 6 (1986), 512 A.2d 1142, 16 ELR 20856 (N.J. Sup. Ct. Law Div. 1986), rev'd, 517 A.2d 484 (N.J. Super. Ct. App. Div. 1986).

59. Kenney v. Scientific Inc., 512 A.2d at 1150, 16 ELR at 20854.

60. 517 A.2d 484, 485 (N.J. Super. Ct. App. Div. 1986).

61. Considering that the jury is held in very high esteem by many, this proposal responds to problems in a narrow stream of civil cases, specifically complex toxic torts. It is not intended as a wholesale reform of the jury system.

62. Oldham, supra note 2, at 137; Luneburg and Nordenberg, Specially Qualified Juries and Expert Non-Jury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887, 902 (1981), citing Thayer, The Jury and its Development, 5 HARV. L. REV. 295 (1982).

63. Oldham, supra note 2, at 174-175.

64. Thatcher, Why Not Use the Special Jury?, 31 MINN. L. REV. 232, 251 (1947).

65. Id.

66. Id. at 252-54.

67. Id.

68. N.Y. Judiciary Law, § 749aa, 29 McKinney's Consol. Laws of N.Y. (1947). New York repealed its special jury system in 1965, even though it was held constitutional by the Supreme Court. Fay v. New York, 332 U.S. 261 (1947).

69. Note, The Right to a Jury Trial in Complex Civil Litigation, 92 HARV. L. REV. 898, 916 (1979).

70. 28 F. Cas. 745 (C.C.D. Mass. 1812) (No. 16,750).

71. Note, supra note 1, at 1160-61; Comment, Complex Civil Litigation and the Seventh Amendment's Right to a Jury Trial, 51 U. OF CHI. L. REV. 581 (1984).

72. Note, supra note 1, at 1166.

73. Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946). See also Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (jury need not be a mirror image of the community).

74. See, e.g., Hernandez v. Texas, 347 U.S. 475, 480-81 (1954) (persons of Mexican lineage), Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) (persons earning a daily wage).

75. Note, supra note 1, at 1167.

76. Id. at 1157.

77. Id. at 1168.

78. Fay v. New York, 332 U.S. 261 (1947) (special jury composed of persons with above average intelligence is constitutional).

79. 28 U.S.C. §§ 1861-1875 (1970).

80. In re Boise Cascade Securities Litigation, 420 F. Supp. 99, 104 (W.D. Wash. 1976). See also supra notes 42-45 and accompanying text.

81. In re U.S. Financial Securities Litigation, 609 F.2d 411, 427 (9th Cir. 1979).

82. See supra note 15 and accompanying text.

83. 28 U.S.C. §§ 1861-1875 (1970).

84. Id. at § 1865(a).

85. Harris and Liberman, Can The Jury Survive the Complex Antitrust Case?, 24 N.Y.L. SCH. L. REV. 611, 635 (1979); Davidson, The Right to Trial by Jury in Complex Litigation, 20 WILLIAM AND MARY L. REV. 329, 352 (1978); Note, supra note 1, at 1172.

86. Kuhn, supra note 24.