Remembering Francis E. McGovern

Duke Law Professor Francis E. McGovern, 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, died on Feb. 14 following a fall at his California home. He was 75.

“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.”

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.

At Duke Law, McGovern taught courses in ADR, mass torts, and legal strategy. With Chief Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas, he also taught a seminar for judges pursuing Duke’s Master of Judicial Studies degree, examining how judicial institutions and individual jurists approach particularly complex and interesting problems.

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. He 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 to 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, while 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 oversaw a settlement track for the case. He had been crisscrossing the country almost continually for two years to meet with lawyers for the defendants and the plaintiffs and facilitate a framework for negotiation. The plaintiffs include 2,500 cities and counties to date, with the possibility of thousands more lawsuits to come. “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.

In recent years, McGovern applied mediation and other forms of ADR to institutional reform efforts emerging from federal lawsuits over bureaucratic failures in the Texas foster care system and 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 change, he said. “I became interested in what a federal judge can do that would reform the institution in a positive way.”

A cherished member of the community At Duke Law, McGovern is remembered by his colleagues as a cherished friend.

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.

“I always started our weekly 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.” Metzloff said he continued to pose that question to McGovern throughout their long friendship. “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.”

Said Professor Donald Beskind LL M ’77: “It’s hard to think about Francis in the past tense. 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.” “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 miss him greatly.”

— Frances Presma