Thursday, December 7, 2006

The End of the Wild West Era of Mass Torts?

Very interesting couple of articles in the American Lawyer -- It's Over: Tort reformers, business interests, and plaintiffs lawyers themselves have helped kill the mass torts bonanza, by Alison Frankel; and Mass Tort Roll Call.  The former article provides an in-depth history of mass torts, tracing in particular the efforts of tort reformers to restrain plaintiff counsel's success in mass torts.  The latter article provides a useful summary of major mass tort litigations.

I would agree with Ms. Frankel that the "Wild West" era of mass torts seems to be over, and that the litigations seem to be growing more predictable and orderly.  Interestingly, Ms. Frankel largely neglects discussion of one of the most significant factors -- the decline of personal injury mass tort class actions.  As I detail in my article, Resolving the Class Action Crisis: Mass Tort Litigation as Network, 2005 Utah L. Rev. 863, courts (especially federal courts) have largely converged in rejecting certification of such class actions, because of the many individualized issues accompanying such actions.  In the 1990s, that judicial consensus had not yet emerged, and many courts, facing such issues for the first time, improvised in certifying mass tort class actions in which lurked many problems relating to substantive, procedural, and constitutional law.

As mass torts become more orderly, the real question becomes . . . what order will it be?  Apart from outliers, such as the interesting and ongoing efforts by Judge Weinstein in the Eastern District of New York (see, e.g., the reversed Simon class action and the appeal-pending Schwab class action), the new order seems to involve pre-trial MDL management (in coordination with state judges), trying individual cases (perhaps to determine accurate claim values for settlement consideration), and then likely non-class settlement.  Hence the title of Richard Nagareda's forthcoming book, Mass Torts in a World of Settlement.  The new order also draws upon recent advances in information technology that enable enormous informal coordination via litigation networks of counsel, judges, and clients, all of which enhance the efficiency and effectiveness of representation.

Finally, the end of the Wild West phase of mass torts doesn't mean the end of mass torts.  To the contrary, some trends suggest the greater expansion overall of mass tort litigation.  Science finds new routes to factual causation.  Our society increasingly uses pharmaceuticals and medical devices.  As companies consolidate and grow larger, they increasingly market products nationally and internationally.  Asbestos litigation continues to chug forward even as new mass torts such as Vioxx start up and threaten bankruptcy.  On the march upward toward globally available superior products, devices, and medicines, the periodic missteps will continue to injure large groups of people, and mass tort litigation will surely follow.

BGS   

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