Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices (Book Review)

Abstract

For almost two decades Judge Jack B. Weinstein, senior federal judge in the Eastern District of New York, has presided over many of the landmark mass tort cases involving Agent Orange, DES, asbestos litigation, repetitive stress injury, and other environmental toxic torts. Not only has Judge Weinstein written numerous landmark decisions in these cases, but during this period he also has produced a prodigious body of academic literature describing and analyzing the problems relating to complex mass tort litigation. In INDIVIDUAL JUSTICE IN MASS TORT LITIGATION, Judge Weinstein has now synthesized these many articles into a comprehensive book that not only documents the most prominent features of mass tort litigation, but also embodies Judge Weinstein's particular views concerning the most fair and efficient resolution of these massive litigations.

To scholars already familiar with his previous articles on mass tort litigation, Judge Weinstein's compilation of those writings forges no new ground. But the book does a very fine job of explaining the phenomenon of mass tort litigation to non-legal academic audiences and to the general public. Judge Weinstein begins by describing his first judicial involvement in a proto-typical mass tort case in the early 1970s concerning children injured by defective blasting caps manufactured by many different manufacturers. This relatively simple case embodied many of the attributes of the future massive mass tort litigation that Judge Weinstein would handle in the 1980s and 1990s. In addition, Judge Weinstein's basic approach to supervising that case, as a managerial judge, also foreshadowed many of the innovative techniques he would implement on a larger scale in increasingly complex mass tort cases.

Judge Weinstein's book not only describes these various mass tort cases, but he describes the complicated jurisprudential, procedural, and substantive legal issues raised in attempts to resolve these cases in the state and federal court systems. At the jurisprudential level, Judge Weinstein identifies the inherent tension in all mass tort litigation between the traditional aspirations of individualized justice versus the systemic need for fair and efficient disposition of hundreds if not thousands of similar claims. At the procedural level, he describes the limitations of federal jurisdictional and procedural rules that inhibit the efficient joinder and consolidation of tort claims in a single federal court. In addition, judicially-fashioned rules such as preclusion doctrine have not functioned effectively to prevent relitigation of similar issues and claims in multiple, repetitive lawsuits. With regard to substantive tort law, Judge Weinstein documents how mass tort litigation has challenged and expanded theories of tort causation, liability, limitations, defenses, and remedies.

Keywords: Judge Jack Weinstein, mass tort litigation, Agent Orange, asbestos litigation, DES, consolidation, class actions, settlement, managerial judging