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IN RE: CINCINNATI RADIATION LITIGATION

In the United States District Court

Southern District of Ohio

Western Division

Case no. C-1-94-126

Judge Sandra Beckwith

DATED JANUARY 20, 1998

_______________________________

Brief of Amicus Curiae Trial Lawyers For Public Justice, P.C., in Support of the Objectors to the Proposed Settlement

F. Paul Bland, Jr., Esq.
Leslie A. Brueckner, Esq.
Arthur H. Bryant, Esq.
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600


Counsel for Amicus Curiae

January 20, 1998

Introduction and Summary of Argument

The settlement in this case is part of a disturbing nationwide trend of abusive class action settlements. In particular, this case exemplifies the rapidly spreading practice of parties seeking to settle class action cases involving substantial damages claims in such a way as to prevent any class member from opting out of the settlement. The means of achieving this end, in this case and many others, is to take a case that should be certified, if at all, only under Fed R. Civ. P. 23(b)(3) (which, in conjunction with Rule 23(c)(2), allows individual class members to opt out) and try to shoehorn it into another provision of Rule 23 that does not require an opt out right. This practice helps defendants place a firm lid on their liability for wrongdoing, but it also violates the class members' rights and threatens our most fundamental notions of individual access to justice. This case squarely presents the question of whether this trend should be permitted to continue.

This case originally was -- and should have been brought -- under Rule 23(b)(3), to the extent that it should have been brought as a class action at all. It encompasses extremely individual and personal claims, concerning alleged civil rights violations against and personal injuries to family members of the plaintiffs. In addition to bringing this action under Rule 23(b)(3), class counsel specifically promised several (if not all) plaintiffs that they would always have the right to opt out if they chose to do so. Those promises went overboard, however, when the defendants offered to settle the case on the condition that there be no opt-outs from the settlement.
The settling parties here now claim that a mandatory class action is appropriate under Rule 23(b)(1)(B), on the ground that the defendants' funds may be too limited to satisfy the anticipated judgments against them if the case proceeds on an opt-out basis. This claim is palpably false on its face, as several defendants including the United States Government, the City of Cincinnati ("the City"), and the University of Cincinnati ("the University") (collectively, "the Institutional Defendants") clearly have adequate funds to satisfy any judgment that might be entered in individual cases.

To get around this fact, the settling parties have argued that there is a limited fund here within the meaning of the case law surrounding Rule 23(b)(1)(B) because the Institutional Defendants have strong legal defenses against the plaintiffs' claims. Under this interpretation, the right to opt out protected by the Constitution and Rule 23 could be eliminated whenever settling parties aver that the plaintiffs face significant litigation risks. Simply put, the settling parties' interpretation is wrong. It turns the limited fund doctrine on its head, is contrary to the doctrine that courts should not consider the merits of an action in determining whether to certify a class, and it would create an enormous loophole that would essentially eviscerate class members' right to opt out.

The settling parties also suggest that the objecting plaintiffs have no constitutional right to opt out because they have participated in this litigation. In this case, that argument is untenable because the objecting plaintiffs were specifically assured that they would have the right to opt out. In any case, that argument must be rejected because it misconstrues the fundamental nature of the right to opt out, and would improperly limit that right.
At bottom, the principle governing this case is clear: when plaintiffs bring highly individualized damages claims against financially well-heeled defendants, those claims cannot be settled on a no-opt-out basis. Neither the Constitution nor Rule 23 can be waived just because the defendants insist upon it, or because some (or even most) class members want it. For that reason, this Court should reject the proposed settlement in this case and make clear that this case can only be settled in a manner that protects every class members' right to opt out.

Trial Lawyers for Public Justice ("TLPJ") is a national public interest law firm that specializes in precedent-setting and socially significant litigation. It is dedicated to pursuing justice for the victims of corporate and governmental abuses. Litigating throughout the federal and state courts, TLPJ prosecutes cases designed to advance consumers' and victims' rights, environmental protection and safety, civil rights and civil liberties, occupational health and employees' rights, the preservation and improvement of the civil justice system, and the protection of the poor and the powerless.

As part of its efforts to ensure the proper working of the civil justice system, TLPJ has established a Class Action Abuse Prevention Project dedicated to monitoring, exposing, and preventing abuses of the class action device nationwide. Through this work, TLPJ has become especially concerned about efforts by defendants to create mandatory, "no-opt-out" settlements that deprive victims of their constitutional rights to pursue individual damages litigation.
Thus, in 1984, TLPJ helped persuade the U.S. Court of Appeals for the Sixth Circuit to vacate certification of a no-opt-out settlement class in the Bendectin litigation. See In Re Bendectin Prod. Liab. Litig., 749 F.2d 300 (6th Cir. 1984). In 1986, TLPJ successfully urged the U.S. Court of Appeals for the Third Circuit to overturn certification of a no-opt-out punitive damages class. See In Re School Asbestos Litig., 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 915 (1986). TLPJ has also filed amicus briefs urging courts to reaffirm the constitutional right of individuals to opt out of class actions for money damages in Adams v. Robertson, 676 So.2d 1265 (Ala. 1995), cert. dismissed as improvidently granted, 117 S. Ct. 1028 (1997); Ticor Title Ins. Co. v. Brown, cert. dismissed as improvidently granted, 114 S. Ct. 1359 (1994); and Dansby v. Queen Carroll, Case No. 1951833 (Ala.) (rehearing pending). TLPJ files this brief because the proposed settlement in this case would deprive each class member of his or her right to opt out, in violation of Federal Rule of Civil Procedure 23 and the Due Process Clause of the United States Constitution.

I. Background
This Court has been provided with extensive documents, and some limited testimony, relating to the facts underlying this action, including testimony at the Preliminary Fairness Hearing on February 20 and 21, 1997 (the "Fairness Hearing"); the Final Report of the Advisory Commission on Human Radiation Experimentation (Oct. 1995) ("the Final ACHRE Report"); testimony from "Radiation Experiments Conducted by the University of Cincinnati Medical School with Department of Defense Funding," Hearing before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives, 103rd Congress, 2nd Sess. (April 11, 1994) ("House Hearings"); and a paper by Dr. David Egilman & Wes Wallace entitled "A Little Too Much of the Buchenwald Touch?" (the "Egilman Paper"). Given this extensive background material, we do not attempt to summarize all of the facts underlying this case. Instead, we highlight those facts most relevant to the issue presented here: whether the proposed settlement violates the class members' right to opt out.

This case arises out of a series of radiation experiments conducted on the plaintiffs' family members without their knowledge or consent, allegedly resulting in serious injury and deaths. Between 1960 and 1972, doctors at the University of Cincinnati subjected 88 selected cancer patients ("the Patients") to total or partial body radiation. The physician in charge of the radiation experiments was Dr. Eugene Saenger, who is a defendant in this case. The Patients had inoperable, disseminated cancer, but generally were not near death and had as a group an average life expectancy of approximately two years. The Patients were generally elderly; their average education level was schooling through the Fourth Grade; and 54 of the 88 Patients were African-Americans. House Hearing at 130. All but three of the Patients were "charity patients." Egilman Paper at 8. All of the patients have long since died (many within a few weeks of receiving the radiation).

The University received $651,482 for research connected to the radiation from the Department of Defense ("DoD"). ACHRE Final Report at 388. The goal of the military contract was "to obtain more information on the acute effects of radiation and to find a biological dosimeter." Id. at 385. In addition to the DoD funds, the University Hospital spent $483,222 on radiating the Patients. Id. at 388. The DoD contract was stopped by the University in 1971, House Hearing at 2, after an unfavorable story was published on the front-page of The Washington Post.
The plaintiffs in this case are family members of the Patients. The plaintiffs allege that the radiation treatments were illegal, immoral, and inappropriate, on the grounds that the Patients were improperly and unwittingly given excessive radiation doses "principally or exclusively as a means of providing information to the Defense Department about the effects of radiation on military personnel in the event of a nuclear attack." Second Amended Complaint ¶

Not surprisingly, there is a dispute among the parties regarding the propriety of these experiments.Without attempting to provide a final evaluation of the merits, we note only here that there is substantial evidence in the record from which a jury could find that the radiation treatments were inappropriate and were driven by military purposes:

o "No research started until the Defense Department agreed to fund it, and it was stopped when the Defense Department withdrew funding." Statement of Dr. Egilman, House Hearing at 166. See also Fairness Hearing at I-182 (statement of Rep. Mann).
o Until the experiments were publicly criticized, Dr. Saenger's reports to the Defense Department discussed the aims of this research almost entirely in military, not therapeutic, terms. Statement of Rep. Mann, House Hearing at 3; Egilman Paper at 4-5. A DoD official has termed the failure of these reports to mention therapeutic issues "certainly troubling." Statement of Dr. Soper at 95. Dr. Saenger himself has said that he recharacterized his research in his later reports in response to criticism. Fairness Hearing at I-165.
o "In real medicine, in real radiation therapy, the radiation is given slowly and from many directions to improve effect and reduce side effects. In military research, in these experiments, the radiation was given fast and unidirectional, in the words of the researchers, because that was the radiation of military interest." Statement of Dr. Egilman, House Hearing at 110. Dr. Egilman was referring to a letter from Dr. Saenger to Dr. Steven Kessler (DoD Project Officer), February 19, 1969, which stated: "Whenever possible, unidirectional radiation will be attempted since this type of exposure is of military interest." See also ACHRE Final Report at 388.
o Despite the supposed therapeutic aims, the researchers only radiated patients with radioresistant tumors. "[T]he University of Cincinnati appears to have been the only federally funded institution in the country that was treating radioresistant carcinomas with total-body radiation at that time." ACHRE Final Report at 389.
o "The studies at the University of Cincinnati began and continued after the medical literature clearly reflected that whole body radiation was inappropriate." House Hearing at 116. Similarly, "[t]o the extent that palliation of cancer symptoms was the goal of the Cincinnati doctors, [total-body radiation] presumably would have been given either as part of a planned experimental protocol or as conventional clinical therapy. If the former, then the currently available evidence indicates rather poor scientific design, even by contemporary standards; if the latter, then the [total-body radiation] treatment administered for the vast majority of patients was nonstandard therapeutic practice for patients with radioresistant carcinomas at that time." ACHRE Final Report at 389.
o When the Atomic Energy Commission requested in 1966 that scientists at Oak Ridge National Laboratory conduct experiments similar to those at issue here, the Oak Ridge scientists refused "because we believe there is so little chance of benefit to make it questionable ethically to treat them." Egilman Paper at 9.
o A 1967 Report by the Faculty Committee on Research at the University of Cincinnati entitled "Investigations Involving Human Subjects" rejected Dr. Saenger's protocol, stating, "It is not clearly indicated whether the radiation is admitted as therapy or purely as an experimental maneuver."

In addition to alleging that the radiation experiments were inappropriate, the plaintiffs also contend that the radiation accelerated the deaths of many of the patients, and caused extensive suffering. Second Amended Complaint at ¶ 40. Again, without attempting to provide a final evaluation of the merits of these allegations, we note here only that a jury might well find that plaintiffs suffered significant harm. First, "[c]ontemporaneous reports . . . state that [total-body radiation] treatments may have contributed to the deaths of at least eight and as many as twenty patients." ACHRE Final Report at 393. These reports, if proven at trial, would obviously have an enormous effect on the compensatory damages available to the family members of those Patients.
Second, family members of the Patients have also described a series of horrible and very painful injuries severe radiation burns, wracking nausea, loss of bodily functions, disorientation, and the like. See, e.g., Fairness Hearing, I-17 (statement of Joseph Larkins); I-19 (statement of Gloria Nelson); I-22 (statement of Catherine Hager). There is evidence that these side effects were exacerbated by the defendants' decisions: (a) to withhold treatment for nausea until after the Patients complained, even though the standard practice then and now was to pre-treat for nausea; and (b) not to allow nurses and staff to ask the Patients about their symptoms, even though that was contrary to normal nursing practice. Egilman Paper at 13-14.
There is also evidence the Patients were not informed of the true nature and risks of the treatment:

o Family members of some victims have testified that the purported signatures of some of the Patients on medical documents were not their actual signatures. House Hearing at 21 (statements of Mr. Larkins and Ms. Nelson).
o "Family members of some patients testified to the Advisory Committee that neither the patients nor their families were adequately informed about the nature and risks of the radiation treatments. They claim that this occurred despite multiple and persistent requests by family members to meet and discuss their concerns with the doctors involved in administering these treatments. Family members also told the Advisory Committee that patients were not informed about the source of the program funding. . . ." ACHRE Final Report at 397.
o The first consent forms given to the Patients made no mention "about the possible risk of death from bone marrow suppression or of the possible side effects of nausea and vomiting, which the doctors were studying and did not want to induce by suggestion." ACHRE Final Report at 395.
There is also evidence that the federal government is responsible for the abuses that took place in the research it funded and oversaw. The defendants have suggested that the federal government was wholly unaware of any risks in total-body radiation research, and reasonably trusted in the judgment of the Cincinnati physicians. A decade before these studies began, however, a committee of federal government scientists had recommended that no further human experimentation be undertaken with whole body radiation, in light of the very poor results on life expectancy realized in the extensive studies already undertaken. ACHRE Final Report at 376-77.

II. Procedural History
This class action lawsuit was filed on February 17, 1994, as an opt-out class action under Rule 23(b)(3) on behalf of the Patients against a number of individual physicians, a few government employees (the "Bivens defendants"), the University and City of Cincinnati, and the federal government.

The record indicates that counsel for the settling plaintiffs assured a number of the objecting plaintiffs that they would always have the option to opt out of this action if they chose to do so. Specifically, class member Gwendyn Plair testified without contradiction that class counsel Robert Newman assured the class members at a meeting on May 6, 1995 that they could opt out. Fairness Hearing at II-68. Mr. Newman also stressed each family's right to control the prosecution of its individual claims by sending a letter containing the following to class members:

[E]ach family will decide what course they want to take in this litigation. Each family will decide if they want to settle for X amount of dollars, if that is ever offered, or press on and seek a higher settlement, or press on to trial, to find out as much as possible what happened.

Fairness Hearing at II-45 to 47, and II-176. Objecting class members Lillian Pagano and Gwndryn Plair both testified that they would not have joined this case if they had been told that they could not opt out. Fairness Hearing at II-47, II-68.

The individual physicians and the Bivens defendants filed several motions to dismiss the case in September 1994, and this Court denied those motions. In re Cincinnati Radiation Litig., 874 F. Supp. 796 (1995). This Court's opinion on the motion to dismiss has been cited since with approval in a number of other federal civil rights cases. E.g., Stadt v. University of Rochester, 921 F. Supp. 1023, 1027 (W.D. N.Y. 1996) (Telesca, J.) (quoting this Court's opinion at length, and holding: "I agree. The Constitution, and more specifically, the Due Process Clause of the Fifth Amendment clearly established a right to be free from non-consensual, governmental experimentation on one's body a right which had been in existence well before 1946."); Craft v. Vanderbilt University, 174 F.R.D. 396 (M.D. Tenn. 1996) (citing four pages of this Court's opinion with approval). This Court's opinion has also been praised in scholarly literature. See Leonard W. Schroeter, Human Experimentation, the Hanford Nuclear Site, and Judgment at Nuremberg, 31 Gonzaga L. Rev. 147, 180 (1995/96) (favorably discussing at length "Judge Beckwith's remarkable decision").

The plaintiffs moved to have the class certified in June of 1994, stating at page 9 of their Memorandum of Authorities in Support of Motion to Maintain Class Action: "Here, plaintiffs contend that certification of the proposed classes is required by Rule 23(b)(3)." Rule 23(b)(3), in conjunction with Rule 23(c)(2), requires a right to opt out.

Before the Court had an opportunity to rule on the motion for class certification, a number of the Individual Defendants appealed the denial of their motions to dismiss to the Sixth Circuit on an interlocutory basis. While the appeal was pending, the parties agreed to settle the case on a no-opt-out basis under Rule 23(b)(1)(B), and (b)(2). The record reflects that the defendants insisted upon a mandatory basis as a condition of settling the case. E.g. Fairness Hearing at II-198 ("We either settle with everybody, or we don't.") (statement of Robert Parker).
The original proposed settlement provided that (a) the defendants would pay the class $4.25 million, with the family of each Patient to receive the same amount, regardless of the facts of that Patients' injuries or case; (b) the University of Cincinnati Hospital would post a plaque saying "In Memoriam," and then listing the initials of the Patients; (c) the University would provide the family of each patient with that patient's medical records, and make available a physician to describe the treatment provided to that patient for one hour per family; and (d) an unidentified federal official would make some sort of an apology to the families. Class counsel could recover up to $1 million of the $4.25 million for costs and attorneys' fees. Notice of Class Action and Proposed Settlement at 2.

While the Second Amended Complaint includes no request for injunctive relief, the settling parties argued to the Court that the class could be certified under Rule 23(b)(2), on the ground that the injunctive relief provided in the settlement predominates over the monetary relief provided. Even though the defendants include the United States Government, the settling parties also argued that the class could be certified under Rule 23(b)(1)(B), on the ground that the defendants' funds may be too limited to meet the judgments against them if the case proceeds on an opt-out basis. See Plaintiffs' Memorandum of Points and Authorities in Support of Joint Motion for Preliminary Approval of Class Action Settlement at 11-14.

Three plaintiffs objected to the proposed settlement, arguing that they should be allowed to opt out and pursue individual litigation against the defendants. In addition to making various legal arguments about the right to opt out, the objectors argued that plaintiffs in similar cases involving government-funded and conducted radiation experiments have received much larger cash settlements than the one set forth in the settlement in this case.

This Court held a two-day fairness hearing on February 20-21, 1997. A number of class members testified in favor of the proposed settlement. One of these persons agreed, however, that the objectors had the "prerogative" and "right" to separately pursue their individual claims, Fairness Hearing at I-39 (statement of Diane McGee), and another supporting class member disagreed with the principle that all class members should receive identical sums of money regardless of their injuries. Fairness Hearing at I-60 (statement of Catherine Hager).

Two other class members testified at the Fairness Hearing that they objected to the proposed settlement, indicating that they wished the case to proceed to trial. (Counsel for defendants stated that those plaintiffs who desired a trial were merely out for "vengeance," and praised counsel for the settling parties for being "more responsible than that." Fairness Hearing at II-194.) In addition to extensive legal arguments from both sides, the defendants set forth extensive unsworn and uncross-examined videotaped statements from certain individual defendants and one of their supporters indicating that the defendants had committed no wrongdoing. Just prior to the close of the hearing, counsel for the objectors briefly responded to these factual statements.

In the course of the Fairness Hearing, counsel for defendants admitted that defendants' resources do not constitute a "limited fund" with respect to plaintiffs' claims for compensatory damages. Fairness Hearing at II-191. Counsel argued, however, that defendants' funds might be insufficient to pay individual judgments if plaintiffs were to obtain substantial punitive damages. Id.

On August 4, 1997, the Court issued a memorandum and order denying preliminary approval to the settlement. The Court concluded that the class could not be certified under Rule 23(b)(2), as the defendants had not acted on grounds generally applicable to the class, and as monetary relief predominated over injunctive relief. The Court also held that the class could not be certified under Rule 23(b)(1)(B), as the settling parties had not put forth sufficient evidence to establish that there was a limited fund present.

The settling parties then reworked the proposed settlement, and again applied for this Court's preliminary approval. The revised settlement now specifies the location of the memorial plaque, and requires that the plaque bear the names of the experiment subjects and not merely their initials. The revised settlement also added a provision that the defendants would provide family members of each of the Patients with up to five hours of psychological counseling.

After further briefing, this Court gave preliminary approval to the settlement in a Memorandum and Order dated October 27, 1997. The Court again made clear that the Class could not be certified under Rule 23(b)(2). It also noted that it was not then deciding whether a limited fund exists with respect to the governmental entities' assets. Nevertheless, the Court granted preliminary approval based upon Rule 23(b)(1)(B) with the understanding that the limited fund issues would be addressed in greater detail later. Memorandum and Order at 7-8.

I. Both Rule 23 and the United States Constitution Protect the Right of Each Plaintiff in this Case to Opt Out

A. The Right to Opt Out is Guaranteed by Rule 23 and the Constitutional Right to Due Process

It is a fundamental tenet of American law that every individual is entitled to his or her day in court. See Martin v. Wilks, 490 U.S. 755, 762 (1989). Class actions have been recognized as an exception to this principle, but that exception is of limited scope and application, and class actions may only displace the individual right to a day in court when it is manifest that the due process rights of absent class members will be protected. See generally Alba Conte, 1 Newberg on Class Actions §§ 1.09-10 (3d ed. 1992). To ensure that absent class members' due process rights are protected, mandatory classes have historically been permitted only under very limited circumstances.

When Federal Rule 23 was revised and restructured in 1966, the Rules Advisory Committee recognized that class members with tort claims for monetary damages have a much more compelling due process interest in having individual control over their claims than do class members with claims for injunctive or declaratory relief. With this distinction in mind, the Committee established separate subdivisions of Rule 23 to deal with cases seeking different types of relief. To accommodate claims for tort damages and other monetary claims, which necessarily implicate the individual interests of each class member, the drafters created Rule 23(b)(3), which requires that absent class members be given notice and the opportunity to opt out, in addition to the other procedural protections of Rule 23(a). The Committee noted that, in damages cases,

the interests of individuals in pursuing their own litigations may be so strong .... as to warrant denial of a class action altogether. Even when a class action is maintained under subdivision (b)(3), this individual interest is respected. Thus the court is required to direct notice to the members of the class of the right of each member to be excluded from the class upon his request.

Notes of Rules Advisory Committee to 1966 Amendments to Rule 23, 39 F.R.D. 69, 105 (1966) (emphasis added).

Consistent with the foregoing, Rule 23(c)(2) provides that, in any case certified under Rule 23(b)(3) each class member must be provided the right to opt out. This case was originally filed under Rule 23(b)(3) and may only properly be certified under Rule 23(b)(3). The proposed settlement would illegally deprive all class members of their fundamental right to opt out under Rule 23(b)(3).

In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), the Supreme Court made clear that Rule 23's procedural protections, including the right to opt-out, are required by the Due Process Clause. The Court held that a court wishing "to bind an absent plaintiff concerning a claim for money damages or similar relief at law . . . must provide minimal procedural due process protection." 472 U.S. at 810. Such minimal protection must include "notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel . . . [and] an opportunity [for the absent plaintiff] to remove himself from the class by executing and returning an `opt out' or `request for exclusion' form to the court." Id. See also Penson v. Terminal Transport Co., 634 F.2d 989, 993 (5th Cir. 1981) ("Th[e] opt-out right is required . . . where personal monetary relief is being sought [because] the individual class members may have a strong interest in pursuing their own litigation."). Thus, in cases where as here a class action includes substantial damages claims, the right to opt-out embodied in Rule 23 is a minimal requirement of due process under the United States Constitution.

The settling parties may nonetheless contend that class members need not be afforded a right to opt out, as long as they are adequately represented in the class action. It is well-settled, however, that adequacy of representation alone is insufficient to protect the due process rights of individuals with particularized damages claims; rather, the opt-out right provided by Rule 23(b)(3) is an essential, additional safeguard that must be provided to absent class members. As the leading commentator on class actions states:

Whenever unliquidated damages are sought for individual injuries suffered, whether sought as the primary or ancillary relief, then such claims are necessarily uncommon with the class representative's claims. As a matter of procedural due process, the class representatives cannot litigate to a judgment binding on class members for unliquidated damages, over objection. Accordingly, when unliquidated damages are involved, the exclusion right must be afforded as a constitutional matter.

3 Newberg, § 17.16 at 17-44-45; see also Holmes v. Continental Can Co., 706 F.2d 1144, 1156 (11th Cir. 1983) ("[h]eterogeneity, and its attendant potential for diverging interests, necessitated special rules of procedure to protect absent class members of the (b)(3) class").
Indeed, the Supreme Court recently explained in Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997), that Rule 23(b)(3)'s procedural protections represent a careful balance between systemic concerns and individual due process rights. The Supreme Court took some care to note that Rule 23(b)(3) imposes stricter procedural requirements upon would-be class action plaintiffs than those imposed by the other subsections of Rule 23(b), and explained that this rigor was necessary to protect individual class members. The Court concluded that the framers of the Rule had been "sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systems efficiency on the other." 117 S. Ct. at 2246. Rule 23(b)(3) thus reflects a careful balance between systemic concerns and the right of an individual to have her day in court, and the opt-out right accorded to members of Rule 23(b)(3) classes is a central part of that balance.

B. The Opt-Out Right is Particularly Crucial Where, as Here, Each Plaintiff Has a Strong Individual Interest in Controlling the Litigation of His or Her Claim

1. The Right to Opt Out is Most Compelling in Cases Where Individuals Have a Strong Interest in Controlling the Litigation of their Claim.

The right to opt out of a class action is particularly important in cases where as here the class members have a strong interest in individually pursuing their litigation. Professor Newberg, for example, has stated that "the propriety of certifying a limited fund class and the existence of any opt-out right likely depend on the particular circumstances...and the balancing of the need to protect the class versus the individual interest in preserving the right to litigate one's own claim." Newberg, § 1.21 at 1-50. The right being balanced here an individual's interest in litigating her or his case separately is especially compelling when the circumstances of that person's claims differ greatly from other claims included in a class. Thus, for example, in Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983), the court took the unusual step of allowing the class members to opt out of a class certified under Rule 23(b)(2) because of the individual variations between class members' claims:

[B]ecause the merits of many monetary damages and back pay claims in this case are uniquely individual to particular class members, the right to opt out of the class, normally accorded only in classes certified under Federal Rule of Civil Procedure 23(b)(3), must be extended to members of the (b)(2) monetary relief class.

706 F.2d at 1145.

The importance of the opt-out right is at its strongest in mass tort cases involving personal injuries. Opinions in several such cases have stressed that courts must be careful to protect the right of individual class members to pursue their individual claims in the forum and manner of their own choosing. See, e.g., In re School Asbestos Litig., 789 F.2d 996, 1002 (3rd Cir. 1986), cert. denied, 479 U.S. 915 (1986) ("inclusion of the opt-out provision in 23(b)(3) class actions removes many of the problems raised by a mandatory procedure. Use of a voluntary class assures that only willing plaintiffs are before the court."); In re Copley Pharmaceutical, Inc., 161 F.R.D. 456, 467 (D. Wyo. 1995) (endorsing a classwide trial on liability, while "preserving the right to an individual trial on damages.") (citation omitted).

Without an opt-out right, class members have no opportunity to present the unique circumstances of their individual injuries, and individuals with very large claims may have those claims compromised against their will in order to improve the recovery of individuals with much smaller claims. In reversing a trial court's statistical adjudication of the damages of absent class members, for example, one court held:

Commonality among class members on issues of causation and damages can be achieved only by lifting the description of their claims to a level of generality that tears them from their substantively required moorings to actual causation and discrete injury. Procedures can be devised to implement such generalizations, but not without alteration of substantive principle.

. . . The Judicial Branch can offer the trial of lawsuits. It has no power or competence to do more.

In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990). As a result, when judged appropriate for class treatment at all, mass tort cases for personal injuries and property damage have almost uniformly been certified under subdivision 23(b)(3), which provides the critical right to opt out, and even in those cases, courts have refused to certify individual damages issues for class treatment. Instead, such cases have certified limited common liability issues for class treatment, and allowed for individual adjudication of damages and causation. See, e.g., Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir. 1986) (limited certification of common issues under (b)(3) in asbestos personal injury cases); Central Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628 (D.S.C. 1992) (limited (b)(3) certification of liability issues in asbestos property damage litigation), aff'd, 6 F.3d 177 (4th Cir. 1993).

2. The Class Members in this Case Have Very Strong Individual Interests in Controlling the Litigation of their Claims.

The class members here have a very strong interest in individually controlling the litigation of their claims, because they have civil rights and tort damage claims that require individualized assessment. The injuries and damages claimed by class members differ in a number of crucial respects:

o Some Patients allegedly died as a result of the radiation experiments, and others did not. As noted in the Statement of Facts, there are indications in the record that as many as 20 of the Patients died as a result of the radiation. If true, that suggests that at least 68 of the Patients did not die as a result of the radiation. Obviously the claims of those plaintiffs descended from those Patients who died as a result of the radiation are materially different from those plaintiffs descended from Patients who died from unrelated causes.

o Some Patients received whole body radiation, and others received partial body radiation. It is also apparent that the experimentation upon the Patients differed substantially from person to person, and that a number of the Patients did not receive whole body radiation. This is potentially significant, since much of the evidence condemning whole body radiation may not apply with such force to those Patients treated with partial body radiation. Even one of the plaintiffs who testified in support of the proposed settlement argued that the families of persons who received whole body radiation should receive greater compensation than the families of persons who received partial body radiation. See Fairness Hearing at I-60 (statement of Catherine Hager).

The nature of the side effects suffered by the Patients also likely differed greatly from person to person. Similarly, three of the Patients were children, whose damages are likely markedly different from the adults. In short, the nature extent of every plaintiff's injury is different.
At the Fairness Hearing, counsel for the settling plaintiffs made a crucial admission that supports this conclusion. Counsel argued to the Court that it is important for the settlement agreement to provide identical relief to each plaintiff, because otherwise it would be "extremely difficult" for counsel to categorize the various injuries of the class members. E.g., Fairness Hearing at 71 (statement of Robert Newman). Mr. Newman's explanation that the proposed settlement is the most convenient arrangement for settling plaintiffs' counsel merely supports the point, made above, that individual plaintiffs who wish to do so should be permitted to go forward on an individual basis. The convenience of counsel is hardly a reason to bind every class member to identical relief.

In short, this is the sort of litigation where individuals have a strong incentive to control their own claims. In this case, the plaintiffs allege that the defendants conducted heinous and immoral experiments upon their family members, violating their civil rights and causing extensive and enormously varied personal injuries. It is hard to imagine litigation more likely to be of great importance to an individual plaintiff, and less appropriate for mandatory class treatment.

C. This Court Should Reject the Settling Parties' Claim That Individuals Lose Their Right to Opt out by Serving as Proposed Class Representatives.

Counsel for the settling plaintiffs have argued vigorously to this Court that the objectors have no right to opt out because they "are named plaintiffs who have participated fully every step of the way in this litigation from the very beginning." Fairness Hearing at I-83 (statement of David Thompson). See also Plaintiffs' Memorandum in Support of Preliminary Approval of Proposed Settlement, at 26-28 (January 31, 1997). Putting aside the propriety of counsels' zeal to have this Court restrict the constitutional rights of counsels' own (former) clients, this argument is inappropriate in the circumstances of this case and incorrect as a matter of law in any case.
First, as set forth in the Statement of Facts above, counsel for the settling plaintiffs informed several of the objecting class members both verbally and in writing that they would always have the right to opt out. Several objecting class members further testified that they would not have agreed to be represented by counsel for the settling plaintiffs if they had not been assured that they would retain the right to opt out. To our knowledge, no testimony or other evidence has been introduced to challenge these statements by the objecting class members. When counsel recruit and retain clients with the promise that counsel will respect the constitutional rights of the clients, those counsel should not be heard to later claim that their clients waived their constitutional rights by having believed and trusted counsels' initial representations.

Second, as set forth in detail in Part I-A above, the right to opt out is based on the fundamental right of individuals to control the litigation of their claims. Due process is not satisfied merely by providing an individual with information about her or his claim. Instead, each person must have the ability to control her or his own claim. Accordingly, Rule 23 provides and Shutts says it must provide as a matter of constitutional law both a right to notice and a right to opt-out. If the settling parties were correct, the right to notice would be all that is required.

It is true that Shutts refers to "absent" class members, and that several if not all of the objecting class members here were named plaintiffs in the litigation. These references are not surprising, however, in light of the facts of the Shutts case where none of the named plaintiffs was objecting or seeking to opt out. There is no indication in Shutts that the Supreme Court intended any denigration of the Due Process rights of "present" plaintiffs, and such an inference is counter to the entire thrust of the Shutts opinion, which stressed the importance of protecting the rights of all class members. None of the settling parties has identified any case holding that named class representatives have no due process right to opt out, and none of the settling parties has identified any case indicating that counsel for an individual may disregard the wishes of that client merely because that counsel has another client with contrary wishes.

In any case, it must be noted that the proposed settlement bars any and all opt-outs, whether by persons who are named class representatives or by absent class members. Thus, even if the settling parties' argument is correct, the settlement still unconstitutionally violates the opt- out rights of any class members who have not served as named class representatives in the case.

II. This Case Does Not Meet the Requirements of Rule 23(b)(1)(B)
The settling parties attempt to avoid the opt-out right of Rule 23(b)(3) by claiming that this case may properly be certified as a mandatory class under Fed. R. Civ. P. 23(b)(1)(B). The basis for the settling parties' position is that the defendants have only a "limited fund" to meet potential judgments against them, and thus all of the plaintiffs' claims must be adjudicated in a single action. This proffered justification simply does not withstand scrutiny.

a. This Court Should Closely Scrutinize Whether the Class Meets The Requirements Of Rule 23(b)(1)(B).

This Court has stated that. "[a]fter the Amchem Products decision, no one can question that the Court must apply the requirements of Rule 23(a) and (b) of the Federal Rules of Civil Procedure stringently in this case." Memorandum and Order, August 4, 1997, at 3. We strongly agree with this Court's statement of the law -- Amchem does require that a court carefully scrutinize all class action settlements. In this case, moreover, there are two additional reasons why this court should accord the proposed settlement particularly close scrutiny.

First, courts should be especially vigilant when reviewing proposed no-opt-out settlements. See Manual for Complex Litigation, § 30.42 at 238 (3d ed. 1995) ("The court's responsibility is particularly weighty when reviewing a settlement involving a non-opt-out class"); Ex parte Liberty Nat'l Life Ins. Co., 631 So. 2d 865, 868 (Ala. 1993) ("[t]he need for such an evaluation is especially acute in this case, given the fact that, pursuant to the proposed settlement, parties objecting to the settlement are not permitted to opt-out but are bound by the terms of the settlement.").

Second, courts should carefully review class action settlements where the settling parties seek to settle a case on a different basis than it had been litigated. In this case, as set forth in the Statement of Facts, the plaintiffs originally sought to have this class certified under Rule 23(b)(3), and counsel for the settling plaintiffs assured their clients that the case would be handled on an opt-out basis. Counsel for the settling plaintiffs only sought certification of a mandatory class when the defendants insisted upon it as a condition of settlement. Courts should be particularly wary where it appears that plaintiffs' counsel may be sacrificing the constitutional opt-out rights of individual class members in order to achieve the defendant's goal of capping its liability.

Whenever parties change the class definition, usually in order "to give the settling defendants greater protection against future litigation[,] . . . [t]he parties should be required to explain in detail what new facts, changed circumstances, or earlier errors support the alteration of the original definition." Manual for Complex Litigation 3d, § 30.45 at 245. Here, the only change in the facts that the settling parties have identified is that the defendants insist upon a no-opt-out class. The defendants' wishes do not warrant disregarding Rule 23 or the United States Constitution.

B. The Position Proposed by the Settling Parties That a Defendant Always Has &Quot;limited Funds" Whenever the Cause of Action Against That Defendant Is Arguably Weak -- Would Eviscerate the Due Process Protections of Rule 23.

Rule 23(b)(1)(B) is designed to protect class members from the risk that their ability to obtain relief from a defendant will be "substantially impaired" by separate prosecution of class members' claims. The justification for depriving class members of their right to opt out in such circumstances is that the class members' ability to obtain relief from the defendant will be affected whether or not the class is certified. Under these circumstances, certifying a mandatory class is the only way to protect the class members' interests and ensure that all who are subject to the risk of "substantial impairment" have a fair opportunity to obtain relief from the defendant. If the defendant has only a limited fund from which it can pay judgments, there is a risk that the first individual plaintiffs to win judgments will deplete the limited fund and thus substantially impair the ability of later-winning individual plaintiffs to recover on their judgments.

In this case, the settling parties have proffered a novel theory of what constitutes a limited fund. They have asserted that a limited fund has arisen here "not out of a concern for a lack of resources, but because of various legal defenses and barriers which lie between the class members and the theoretical `deep pocket', such as a governmental entity." Plaintiffs' Memorandum in Support of Renewed Motion for Class Certification and Preliminary Approval of Proposed Settlement at 26. In other words, the settling parties suggest that a limited fund exists whenever it can be argued that the plaintiffs' claims against a set of defendants are weak, because then the funds of those defendants likely to be paid to the plaintiffs are "limited." As this Court correctly noted:

The proponents ask the Court, in concluding that a limited fund risk is present in this action, to ignore the assets of certain Defendants: the United States of America, the City of Cincinnati, and the University of Cincinnati.

Memorandum and Order, August 4, 1997, at 8. The reason that this Court should supposedly ignore the assets of these defendants is that those defendants supposedly have strong defenses against this case on the merits.8
This Court should flatly reject the proposed new standard for identifying a "limited fund" suggested by the settling parties. The settling parties' position runs contrary to the plain language of the limited fund doctrine; it is not supported by any authority; it improperly would require this court to decide the merits of the case before deciding whether class certification is appropriate; and it would open up a gaping loophole in the due process protections enshrined in Rule 23.
First, the settling parties' position accords a meaning to the phrase "limited fund" that can clearly not be found in those words. In straining to find a doctrinal justification for the desired result (a complete cap on liability for the defendants), the settling parties have confused the question of a plaintiffs' ability to win a judgment i.e., the chances that the plaintiff will prevail on liability issues with the question of a defendant's ability to pay a judgment if one is entered i.e., the existence of a limited fund. These issues are separate, and the settling parties turn the English language on its head when they assert that the question of whether a defendant has "limited funds" is really a question of whether the plaintiffs are likely to win. In short, the settling parties' position is simply a nonsequitur.

Second, there is no case that explicitly holds that courts should find that a "limited fund" exists whenever defendants are likely to win. The settling parties rely heavily upon the case of In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703 (E.D. Mich. 1985), but that decision never clearly enunciates the rationale suggested by the settling parties here. Although the Jackson Lockdown court did appear to ignore the assets of certain of the defendants in applying the "limited fund" doctrine under Rule 23(b)(1)(B), it never cited any authority authorizing it to do so and it did not explicitly discuss why it was supposedly proper to do so. The Jackson Lockdown court was faced with the prospect of lengthy and expensive proceedings brought by apparently litigious prisoners who had already absorbed a good deal of the court's time, and the district court in Jackson Lockdown made clear that the prisoners' claims were "highly problematic." 107 F.R.D. at 708. Clearly frustrated by the factual situation before it, the Jackson Lockdown court then engaged in a "belt-and-suspenders" analysis in which it held that a no-opt-out class could be certified under every conceivable portion of Rule 23. Jackson Lockdown should thus be limited to its unique facts, and that this Court should not rely upon possible implications from that case's holdings in order to enunciate a major new exception to the limitation on no-opt-out class actions.

Third, the settling parties' proposed theory improperly suggests that this Court should base its decision on class certification on a preliminary inquiry into the merits. A wealth of case law from the class certification context, however, unanimously indicates that this is improper. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) ("We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action."); Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201 (6th Cir. 1974) ("when determining the manageability of a class action, the district court must confine itself to the requirements of Rule 23 and not assess the likelihood of success on the merits."); Walther v. Dayton-Walther Corp. Pension, 880 F. Supp. 1170, 1177 (S.D. Ohio 1994) ("In determining whether to certify a class, a court is prohibited from considering the merits of the action."); Mayo v. Sears, Roebuck & Co., 148 F.R.D. 576, 579 (S.D. Ohio 1993) (same). The settling parties' proposed approach directly contravenes this line of authority.

Finally, the settling parties' approach invites manipulation and abuse of the class action device. As explained above, defendants faced with a large number of potential damages claims always prefer a mandatory class, and will often exploit any opportunity to achieve a no-opt-out deal. If the settling parties' proposal is widely adopted, defendants in every class action will have a readily available means to this end, because parties in a settlement can always argue that the plaintiffs' claims against one or more defendants face serious defenses. As explained above, the Supreme Court in Amchem explained that Rule 23 embodies a careful balance between the interests of courts in efficiently handling mass litigation and the rights of individuals to pursue their claims. If Rule 23(b)(3)'s opt-out right can be avoided every time the parties can credibly assert that the plaintiffs face some litigation risk, then the balance in Rule 23 will be irretrievably lost.

If this settlement is approved, every one of the families of 88 individuals who were allegedly experimented upon will be forced to accept the relief provided by the settlement, regardless of whether the compensation they receive bears any relationship to their actual injuries, and regardless of their own desire to litigate their cases individually. The mandatory class settlement proposed by the settling parties here does violence both to the constitutional rights of absent class members and to the meaning, structure, and purpose of Federal Rule of Civil Procedure 23. For these reasons, the proposed settlement should be rejected and this Court should make clear that the case may only be settled (or litigated) if the right of every class member to opt out is protected.
Respectfully submitted,


_______________________________
F. Paul Bland, Jr.
Leslie A. Brueckner
Arthur H. Bryant
Trial Lawyers for Public Justice, P.C. 1717 Massachusetts Ave., N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600

Counsel for Amicus Curiae
Trial Lawyers for Public Justice, P.C.


CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing Brief of Amicus Curiae Trial Lawyers for Public Justice, P.C., in Support of the Objectors to the Proposed Settlement, upon counsel of record for all the parties to this litigation, listed below, by placing same in the United States mail, properly addressed and first-class postage prepaid, this _____ day of January, 1998.

______________________________________
F. Paul Bland, Jr.

R. Joseph Parker Philip J. Marsic
1800 Star Bank Center 632 Vine Street, Suite 900
425 Walnut Street Cincinnati, Ohio 45202-2442
Cincinnati, Ohio 45202-3957

W. Charles Curley Richard D. Lameier
Suite 1750 One West Fourth Street
88 East Broad Street 1400 PNC Tower
Columbus, OH 43215-3506 Cincinnati, Ohio 45202

Alphonse Gerhardstein James H. Scheper
1409 Enquirer Building Dollar Federal Building
617 Vine Street 2 S. Third Street, #400
Cincinnati, Ohio 45202 Hamilton, Ohio 45011

Jerome C. Randolph Leo J. Breslin
1800 Provident Tower Lindhurst & Dreidame
One East Fourth Street Co., L.P.A.
Cincinnati, Ohio 45202 312 Walnut Street, Suite 2300
Cincinnati, Ohio 45202

Neil F. Fruend Brian E. Hurley
One Dayton Centre, Suite 1800 30 Garfield Place
1 South Main Street Suite 940
Dayton, Ohio 45402-2017 Cincinnati, Ohio 45202

Thomas M.. Evans
900 Central Trust Tower
5 W. 4th Street
Cincinnati, Ohio 45202

Robert B. Newman
Kircher, Robinson, Newman & Welch
1014 Vine Street
Cincinnati, Ohio 45202-1299

John H. Metz Karl P. Kadon
4400 Carew Tower Mark S. Yurick.
441 Vine Street Assistant City Solicitors
Cincinnati, Ohio 45202 City of Cincinnati
801 Plum Street, Room 214
Cincinnati, Ohio 45202

David I. Thompson & David P. Kamp Robert Nelson
White, Getgey & Meyer Co., L.P.A. Lieff, Cabraser, Heimann & Bernstein
1700 Central Trust Tower 275 Battery Street, 30th Floor
One West Fourth Street San Francisco, California 94111
Cincinnati, Ohio 45202

Gary R. Lewis
Kimpel, Hyland, Weinkam & Goodson
1700 PNC Center, 201 East Fifth Street
Cincinnati, Ohio 45202

Kenneth R. Faller Stephen M. Doyle
Beckman, Weil, Shepardson & Faller P.O. Box 7146
1200 Mercantile Center Ben Franklin Station
120 East Fourth Street Washington, D.C. 20044
Cincinnati, Ohio 45202

Kenneth Zylstra Richard B. Drubel
Berger & Montague PC Susman Godfrey LLP
1622 Locust Street 1000 Louisiana Street, Suite 5100
Philadelphia, PA 19103 Houston, TX 77002-5096

Edward Cooper Brown
Cummins & Brown
5039 Connecticut Ave., N.W., Suite 206
Washington, D.C. 20008