Practical Wisdom and Third-Generation Mass Tort Litigation

Abstract

The debate over mass tort litigation has become especially shrill in recent years, as members of the academic community have attacked alleged ethical improprieties, judicial overreaching, and worse. The authors of these Essays, however, present an altogether different and even optimistic view of mass tort litigation at the end of the twentieth century. These practitioners in the field tell us that mass tort litigation can be resolved ― however imperfectly ― by various means.

While the academicians contemplating mass tort litigation have labored diligently to intellectualize it ― constructing paradigms grounded in public interest law, social choice theory, communitarianism, and law-and-economics ― the practitioners have been working just as diligently to find real-world solutions to compensate mass tort victims in appropriate circumstances. In addition, while the academic community heaps scorn and criticism on mass tort settlements, lawyers and judges quietly continue to develop various means to resolve mass tort claims.

Thus, in contrast to the unabated pessimism from the academic community, these Essays convey much good news from workers in the field. These Essays also embody a good deal of common sense and practical wisdom. These Essays tell us that the lawyers and judges who work on mass tort cases acutely perceive the complex problems embedded in mass tort litigation ― the difficult issues involved in globally resolving thousands of similar claims grounded in highly individualized personal injuries. These Essays tell us that the practitioners also are acutely aware of the constitutional, statutory, and doctrinal limits on their ability to resolve mass tort claims in the aggregate. These Essays tell us that the practitioners understand the weaknesses, imperfections, and failures in their efforts. And, finally, these Essays tell us that the lawyers and judges who work on mass tort litigation are not ethical dullards.

It is worth noting how much mass tort litigation has developed in the last quarter century. Twenty-five years ago, the legal lexicon did not include the term “mass tort litigation.” No one knew what a mass tort case was. Not only did we not have a label for these massive cases, but we also did not have the concept. In 1966 the rulemakers amending the class action rule knew about mass accident cases ― the airplane crash, for example ― but they did not and could not envision contemporary mass tort litigation. Hence, the rulemakers wrote their now-famous Advisory Committee Note, eschewing class certification of mass accident cases. This singular lack of vision subsequently enabled their Note to take on a life of its own, fulfilling the law of unintended consequences in the realm of mass tort litigation.

It is striking, then, to realize that twenty-five years later we have an entire legal practice and academic field devoted solely to mass tort litigation. Attorneys now identify themselves as mass tort lawyers and mass tort litigation is taught in law schools. Twenty-five years ago there were no published works on mass tort litigation. Today there is entire literature ― a treatise and casebook, trade books, empirical studies, symposia, and hundreds of articles ― on mass tort litigation.
As recently as a decade ago, business and legal reporters did not use the term “mass tort litigation.” Now “mass tort litigation” has passed into the general vocabulary and is routinely discussed in the media. Indeed, we have an entire vocabulary derived from mass tort litigation. We speak of mature and immature mass torts; future claimants; indeterminate plaintiffs and defendants; punitive damages overkill; limited generosity classes; litigation and settlement classes; and global peace. Mass tort litigation has passed into the public consciousness.

As mass tort litigation has emerged, developed, and matured, so too has the sophistication of the practicing bar and its academic critics. These Essays collectively suggest that after a quarter century, we are entering an era of third-generation mass tort litigation. The seminal mass tort cases ― Agent Orange, asbestos, and the Dalkon Shield ― ave way to a second generation of mass torts: Bendectin, DES, defective heart valves, tainted blood products, and repetitive stress injuries. This second wave seamlessly segued into the current third-generation mass torts: those gargantuan cases emerging fully blown onto the litigation landscape ― breast implant, tobacco, and human rights litigation.

Keywords: Mass tort litigation, class actions, practitioners, Agent Orange, Dalkon Shield, products liability