Claim Splitting in the New World of Several Liability and Personal Jurisdiction

General aviation accident litigation has recently become more complicated, with multiple lawsuits filed in multiple venues to litigate the same crash. An informal poll at the Air Law Symposium indicated that a large percentage of the attendees had been involved in such cases. Two primary forces likely give rise to these multiple lawsuits. First, with the demise of joint and several liability, plaintiffs are often forced to sue more defendants and for defendants to add more third-party defendants. Second, the more rigorous personal jurisdiction standards articulated by the United States Supreme Court in the past decade have tightened both general and specific jurisdiction. As a result, finding a single forum with personal jurisdiction over all parties has become more difficult. In this environment, many complications can arise for plaintiffs, defendants, and third-party defendants. Deciding what law applies can be a complex problem with a single case in a single forum. It is far more complicated with multiple lawsuits in multiple states. The demise of joint and several liability in most states creates problems, too. When one case is filed in a joint and several state, and others are filed in various several liability states, there can be confusion galore, not only between the joint and several state and the others but also from significant differences in the application of several liability among the several liability states. One state’s law may preclude several liability as to product manufacturers, and others may not; some may limit several liability to noneconomic damages or set a threshold percentage of fault above which a defendant is still subject to joint and several liability. One state may permit the jury to weigh fault allocated by non-parties; others may require timely pleading of claims of non-party fault or preclude allocation to non-parties altogether. Along with traditional constraints, such as whether a party can pursue multiple lawsuits, the risks of res judicata and taking different positions in different lawsuits are important issues for all parties. There are ways to minimize duplicative effort, such as using Multidistrict Litigation (MDL) proceedings under 28 U.S.C. § 1407. MDLs can mitigate multiple lawsuits in multiple states but are often slow in resolving cases, and they ordinarily remand the cases to their original for a for trial. State courts lack any method of consolidating cases pending in other states. This Article addresses a variety of possible methods that may help handle these issues, as well as identifying those that are likely to be useless. Many of these issues have been addressed in other contexts, such as articles about the effect of a particular state’s change from joint and several liability to that state’s adoption of a form of several liability. However, no single publication identifies the potential complications of litigating multiple lawsuits in multiple states arising from the same accident. The Third Restatement of Torts, Apportionment of Liability, discusses five categories of joint and several or several liability but, understandably, not the other complications of multiple lawsuits. Furthermore, some states’ laws have changed since the Restatement was published two decades ago. This Article attempts to help litigators, whether for plaintiffs or defendants, anticipate the issues they may face if multiple lawsuits are filed out of the same crash and attempts to identify the risks and alternatives to be considered