Duke Law mourns Francis McGovern, preeminent expert in ADR, resolving mass tort claims
Remembered as a beloved friend and colleague, McGovern was renowned for finding innovative solutions to seemingly intractable problems.
The Duke Law community is mourning the passing of Professor Francis E. McGovern, who died on Feb. 14 following a fall at his home in Marin County, Calif. He was 75. McGovern was renowned for his expertise in alternative dispute resolution (ADR) and his innovative work as a special master and mediator overseeing or advising on the management and settlement of mass tort claims. He is remembered by his colleagues as a cherished friend.
“It’s hard to think about Francis in the past tense,” said Professor Donald Beskind LLM ’77. “In life he was an active verb. He used his energy and creativity to create action. Lawyers and judges who considered their cases intractable came to him to help them find resolutions.
“As a friend he was generous with ideas, time and warmth. A dinner with Francis and his wife, Katy, the high point of any day, was filled with discussions of current events, his children of whom he was immensely proud, his travel and his work. But always of interest to Francis were the lives of others and their families. In his life and his work, he took pleasure in empowering and encouraging those he encountered with his ideas, connections, and generosity.”
A member of the Duke Law faculty since 1997, McGovern combined teaching with the practice of ADR and work as a court appointed special master in almost 100 cases, including those arising from DDT toxic exposure in Alabama, asbestos contamination, the Dalkon Shield contraceptive intrauterine device, silicone breast implants, Rhode Island’s Station Nightclub fire, and the BP-Deepwater Horizon oil spill in the Gulf of Mexico. At the time of his death, he was serving as one of three special masters assisting with the thousands of federal lawsuits filed by cities and states against opioid manufacturers and others.
McGovern’s scholarship reflected insights gained in practice, often focusing on innovative approaches to reaching solutions in highly complex cases.
At Duke Law, McGovern taught courses in ADR, mass torts, and legal strategy; when he developed his Legal Strategy seminar in the early 2000s, it was unique in its integration of simulated experiential learning into coursework. With Chief Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas, McGovern also taught a seminar for judges pursuing the Master of Judicial Studies degree, examining how judicial institutions and individual jurists approach particularly complex and interesting problems.
“I have admired and enjoyed knowing Francis for many years, long before I came to Duke,” said David F. Levi, the Levi Family Professor of Law and Judicial Studies, director of the Bolch Judicial Institute and former dean of Duke Law. “He was one of a kind — brilliant, dedicated, kind, energetic, and with a great sense of humor. As a lawyer and teacher, he was focused on moving the field forward, solving seemingly intractable problems, making things better without the friction and expense of traditional litigation. He spanned the academic study of dispute resolution and the practice of a much-in-demand mediator.
“He was a mentor, teacher, and friend to so many. And he and Katy were such good and fun companions. How we will miss him.”
An ADR pioneer, integrating practice, abstract thinking — and compassion
A native of Charlottesville, Va., McGovern received his BA at Yale University in 1967 before serving for three years in the U.S. Marine Corps, where he achieved the rank of captain. He received his JD at the University of Virginia in 1973 and subsequently practiced law at Vinson & Elkins in Houston. He began his academic career at Samford University’s Cumberland School of Law in Birmingham, Ala., in 1977 and came to Duke from the University of Alabama School of Law, where he was the Francis H. Hare Professor of Torts. In addition to visiting at Duke Law in 1989, McGovern served as a visiting professor at numerous law schools in the U.S. and abroad, and held longtime teaching posts at the University of California Berkeley School of Law, at Stanford Law School, where he was a senior fellow at the Stanford Center on Conflict and Negotiation, and at UC Hastings College of the Law.
“I decided very early in my academic career that my highest and best use was to combine teaching with the application of that teaching in the real world, what we typically call translational learning,” McGovern told Duke Law Magazine in 2018. “My focus has been to understand the theories and the principles, but then be able to apply them. And I found the reverse works as well: What you learned in the application gives you an opportunity to develop theories and principles.” That approach led him, after working on several mass tort cases, to develop the concepts of “maturity” and “elasticity” in mass tort litigation, two concepts now seminal in the field.
In the late 1970s and early 1980s, McGovern was among the first in the nation to write about and to use ADR techniques to avoid or improve the litigation process. “Francis McGovern was a founding father of the modern ADR movement,” said Kenneth Feinberg, another ADR luminary who served as special master of the 9/11 Victim Compensation Fund.
“Long before it was fashionable, well before ADR was a permanent fixture in law school education, he predicted that mediation, arbitration, administrative claims programs like the 9/11 Victim Compensation Fund and BP oil spill fund, and other forms of alternative dispute resolution would become mainstream pillars of our American legal system. He wore many hats simultaneously — active mediator and arbitrator, designer, and administrator of mass claims programs, an academic of the first rank, and a credible bridge between federal and state judiciaries and the legal profession — he paved the way with a blueprint as to how our civil justice system could accommodate and be more responsive to the individual citizen seeking efficient and cost-effective justice.”
Seeing that mass claims take years to reach and proceed through trial at tremendous expense to the parties and the courts, McGovern pioneered new roles for court-appointed special masters as “case managers” and “settlement masters.” As a case manager, he organized the pretrial administration of cases and used ADR techniques to help parties agree on efficient discovery approaches and schedules. As a settlement master, he was often required to develop innovative ways to implement potential settlements.
In the litigation emerging from the 2003 fire sparked by a rock band’s pyrotechnic display at The Station nightclub in Warwick, R.I., McGovern designed a point system to distribute a $176 million pool of funds among 310 plaintiffs in full settlement of all of their claims, acknowledging that their true injuries could never be fully compensated. “We had a limited list of variables, all objective,” he told Duke Law Magazine in 2010. “The goal was to develop a matrix that achieves ‘horizontal equity’ and ‘vertical equity.’ Horizontal equity means that everybody who had exactly the same injury gets exactly the same number of points. Vertical equity means that the more severe get more points than the less severe. The enterprise then shifts from dollars and cents to vertical and horizontal equity.” It gained unanimous approval from the plaintiffs.
The point system was “so transparent, objective, and simple that all plaintiffs understood that it was the only way it could be done,” said Providence lawyer Mark Mandell, who directly represented more than 100 plaintiffs and served as co-lead counsel of the steering committee that coordinated the litigation. Critical to its success, he said, was the fact that McGovern, who worked on the highly emotional case pro bono, spoke with every plaintiff or their representative, usually in person. “He created a level of trust with them and gave them a forum to be involved in identifying what the issues were and the kinds of plans they wanted. Everybody was so appreciative. … Francis dealt with them fairly and compassionately and that went a long way.”
Innovating in an unprecedented case
As special master in the massive multidistrict federal opioid litigation consolidated before Judge Dan Aaron Polster of the U.S. District Court for the Northern District of Ohio, McGovern also focused on overseeing a settlement track for the case, crisscrossing the country almost continually for the past two years to meet with lawyers for the defendants and the plaintiffs — 2,500 cities and counties to date, with the possibility of thousands more lawsuits to come — in order to facilitate a framework for negotiation. One result: a proposed new form of class certification called the “negotiation class,” which McGovern describes in an article forthcoming in the Texas Law Review, co-authored with Professor William Rubenstein of Harvard Law School. Polster approved the negotiation class for use in the opioid litigation, though his order is currently under appeal to the U.S. Court of Appeals for the Sixth Circuit.
“This has never happened in the history of our country, and there is no existing structure available to resolve these cases,” said Polster, referring to the sheer scale of the multidistrict litigation. “I believe one needed to be created and Francis was a principal architect.” A key aspect of the plan would survive any appellate ruling against the negotiation class itself, he added: “Probably the most important aspect of it is the mechanism by which the cities and counties have agreed to allocate any funds produced by settlement or verdict — a fair way based on hard data and metrics.” The mechanism is designed to ensure that sparsely populated areas devastated by the opioid epidemic will be treated as fairly as densely populated ones, he said.
Calling McGovern “irreplaceable,” Polster attributes his effectiveness to a combination of intellect, creativity, and the fact he knew everyone. “We joked that every lawyer in the case had been Francis’s student, and it wasn’t much of an exaggeration,” Polster said, noting he was too, having attended a course on advanced mediation for judges McGovern organized at Duke Law and taught with Feinberg and Boston-based mediator Eric Green.
“Francis always was the smartest person in the room, but he never acted that way, which was why he was so effective,” said Polster. “Everyone loved him because he was so polite and gracious and always gave everyone else credit for the ideas that were his. He never got discouraged, even when there was plenty of reason to be, and he could always see 10 steps ahead.” He will treasure the relationship he forged with McGovern through their close work on the opioid litigation, he said. “My life is much better personally and professionally because Francis agreed to help me.”
Taking on institutional reform
In recent years, McGovern applied mediation and other forms of ADR to institutional reform efforts emerging from federal lawsuits regarding bureaucratic failures in the Texas foster care system and in the New York City Housing Authority’s efforts to abate mold, among other housing problems. Traditional court-based remedies, such as fines, didn’t guarantee institutional improvement, he said. “I became interested in what a federal judge can do that would reform the institution in a positive way.”
He found promise in the way technology, specifically mobile apps, could be used to empower frontline workers — “street-level bureaucrats” — such as foster care managers in Texas and NYCHA maintenance workers. In the latter case, a maintenance worker encountering mold would take a photo of it and trigger a decision tree of work that could and should be done, and follow it up with a picture of the work he or she did that would then be certified by supervisors. The app offers instruction and facilitates accountability, feedback, and data collection on remediation efforts. “So the concept of institutional reform with mold was diagnosing the problem as a bureaucratic problem and empowering the people who could really do something about it,” McGovern said. “That’s not something that a judge could order. But by agreement of the parties, we were able to adopt it.”
McGovern took pride in “incubating” nuanced and novel solutions in every case, he said. “When people ask me to mediate, I’m going to do something different. I’m looking to do something innovative that will sort of change the way things are going forward.”
Said Feinberg: “Francis will be missed but his legacy in so many areas survives — a fitting, lasting tribute to a formidable personality who accomplished so much.”
A beloved colleague and “friend to so many”
Perkins Professor of Law and professor of environmental and public policy Jonathan Wiener also commended McGovern’s rare combination of scholarship, practice, strategy, and personal relationships. “Francis brought the real life of complex litigation and its colorful characters — whom he knew so well — right into the classroom,” he said. “When he wrote about the elasticity of mass torts, or the design of claims resolution facilities, or the role of judges in mass torts, Francis was helping us see both the theory and the reality.”
Added Levi: “His range and reach was incredible, and he generously shared his knowledge and insights with colleagues, students, practitioners, and judges. We worked closely together these past few months to plan Duke’s MDL certificate program, a program that he hoped would be a big part of his legacy. He wanted to create opportunities for others in the field that he defined and mastered, both to advance the field and to bring forward new voices and perspectives.”
Chief Judge Rosenthal, whose longstanding collaboration with McGovern included teaching with him for six years in the Master of Judicial Studies Program, also lauded his intellect and acuity. “The ‘Francis brain,’” she said, “was amazing. Restless, dynamic, ever-moving, yet disciplined. Creative. Original.”
She called her friend “perhaps the most contradictory person” she had ever met: “Francis was an unabashed devotee of the finest things in life. Clothes — designer only, and only a few designers. Yes, he told me what to wear. Places and spaces — the best, and only the best. Traditions — riding to hounds, in full habit, joining the most selective clubs. But he was an unabashed fan of people. He knew the folks who regularly drove him from Duke to the airport, and back. He knew not just their names, but the ages of their kids and what they did. He knew the people who checked him into his usual hotels. He cared about them. He cared about us. He was the most democratic snob I’ve ever met.”
Professor Thomas Metzloff first got to know McGovern when Metzloff visited at the University of Alabama School of Law in 1995 and taught courses in legal ethics and dispute resolution. McGovern, Metzloff noted, was already a legend in the ADR world, and they quickly became friends, enjoying weekly lunches.
“I always started our lunches with the same question, ‘So what interesting thing are you working on today?’” Metzloff recalled. “We never needed another question as he always had about three or four interesting things he was ‘working on that day.’ I would marvel at his reports of the truly fascinating challenges he was working on in the mass tort world — how to think about resolving this dispute or how to structure a process for fairly determining how to compensate those who had been hurt. Over the course of the semester, I came to appreciate — actually to be in awe of — Francis’ creative yet eminently practical insights on his work. He transcended the disputes and the adversarial process. He wasn’t a plaintiff’s advocate or a defendant company person. He had everyone’s respect. He was always the Virginia gentleman. He was the most ethical of lawyers — someone truly committed to fair and just resolution of some of the most important disputes in the country.”
McGovern’s decision to join the faculty at Duke Law, where there was a strong ADR presence, was a “great thing,” for the Law School, said Metzloff. “And when I saw Francis, my question was still pretty much that same: ‘What interesting things are you working on today?’ He never failed to have an answer. I am still expecting to see Francis walk down the hallways any minute — with a suitcase as he heads off someplace to work on solving a problem.”
“Francis was an extraordinary person and cherished member of our community,” said Kerry Abrams, James B. Duke and Benjamin N. Duke Dean and professor of law. “We will miss him greatly.”