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Introduction
This report was prepared at the request of the Mass Torts Working Group created by
Chief Justice William H. Rehnquist in February 1998. Specifically, the report reviews and
organizes current legal and empirical literature on mass torts to address two questions
posed by the Working Group:
1. What problems are associated with mass torts litigation?
2. What proposals have been advanced to address those problems?
Part I begins by asking whether there are mass torts problems that require special
legislative or rule-making attention and proceeds to identify criteria and comparative
bases for recognizing problems. The core of part I is devoted to examining the multifaceted
and often overlapping problems, such as costs, delays, scientific uncertainties, and
procedural unfairness, that have been associated with mass torts litigation. The consensus
view is that mass torts have created a multidimensional and complex set of problems,
but a minority view points to an ad hoc series of evolutionary actions that have created a
coherent response to the demands of mass torts.
Part II examines three types of proposals to respond to perceived problems posed by
mass torts claims: case-management, legislative, and rule-making. Under case-management
proposals, we examine aggregation proposals from a number of angles, including
the timing, the use of and judicial review of settlement classes, litigation classes, proposals
to aggregate potential claimants who were exposed to risk-based tortious activity, and
proposals to employ statistical sampling to resolve mature mass torts. We also look at case
management in the form of using court-appointed experts, enhancing cooperation between
state and federal courts, employing alternative dispute resolution procedures, and
invoking the bankruptcy process. Discussion of bankruptcy integrates recent legislative
proposals by the National Bankruptcy Review Commission with discussion of current
bankruptcy case-management practices. Discussion of state–federal cooperation includes
consideration of a legislative proposal because it is closely related to the case-management
discussion.
Under legislative proposals, we present Professor Edward Cooper’s “bold approach”
to mass torts problems. This allows us to identify at the outset the parameters of a truly
comprehensive resolution of mass torts. We follow with extensive discussion of the American
Law Institute’s Complex Litigation Project and the majority and dissenting positions
of the American Bar Association’s Commission on Mass Torts. We compare the major
features of all of the above plans and summarize critiques published in the legal literature.
Next we focus on proposals to address choice-of-law issues and critiques of such
proposals. Then we examine federal substantive law approaches that might moot some or
all of the seemingly intractable choice-of-law problems. Federal jurisdictional approaches
come next, including an examination of a bill-of-peace proposal. The federal vaccine
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Appendix C: Mass Torts Problems & Proposals
compensation program is described and discussed briefly. We end the section with a discussion
of class action rules changes (e.g., treating a non-opt-out class, rather than the
individual members, as the legal entity; or regulating attorneys’ fees in class actions) that
arguably involve substantive changes and require legislative action.
Discussion of rule-making proposals focuses primarily on class actions, especially proposals
dealing with settlement classes, including a summary of Rules Enabling Act limits.
Novel approaches to class action trial structure are examined briefly, as are suggestions
for addressing the adequacy of class representation. Finally, we close with a brief examination
of proposals to create new rules designed to address ethical issues that arise in
mass torts lawyering and judging.
In exploring the above issues, we need a working definition of mass torts litigation to
distinguish it from what we call ordinary litigation. Mass torts litigation involves cases,
generally numbering in the thousands, that include claims of personal injuries or property
damage caused by exposure to a product or substance or a set of similar products or
substances or a single event.1 All other litigation will be referred to as ordinary litigation.
As discussed below, more precise definitions may be needed in statutes or rules.
I. Problems
A. Overview
Before we summarize and categorize the various mass torts problems that commentators
have identified, we address the threshold issue of whether there are any problems. Then
we discuss briefly, by way of caveat, the unintended effects of prior solutions to perceived
problems. In the core of this section we approach the identification of perceived problems
in two ways: first by presenting a number of idealized criteria for judging success in
resolving mass torts problems and then by describing and categorizing the host of specific
problems that various commentators have advanced.
1. While property damage litigation is included in this definition of mass torts, such litigation often has a
lesser degree of complexity than litigation that involves bodily injury. Assessment of damages in personal
injury cases typically varies considerably from individual to individual, while property damage typically exhibits
less variation.
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