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Appendix C: Mass Torts Problems & Proposals
B. Are there any problems?
To avoid overstating the complexity of mass torts problems and solutions, we need to
establish a frame of reference. One way to do so is to ask: How do mass torts problems
differ from problems that the civil justice system as a whole has manifested over the years?
To illustrate the force of that question, let us look at a specific instance of an asserted
problem. Commentators have frequently identified high transaction costs, especially attorneys’
fees, as a central problem in mass torts litigation.2 An oft-cited 1983 RAND report
on the costs of asbestos litigation tells us that plaintiffs in that study received, on average,
37 cents of every dollar that defendants and insurers spent on asbestos litigation.3
Missing from the above analysis, however, is any baseline information about the costs
of ordinary litigation. Assuming that in a typical case there is a one-third contingent fee
plus another 7% for plaintiff ’s expenses and assuming equivalent costs for defendants, a
plaintiff would ordinarily receive 42 cents of every dollar spent on the litigation.4 In fact,
later RAND research showed that in non-automobile tort litigation plaintiffs receive, on
average, 43% of total costs and compensation.5
Some commentators, explicitly using the baseline of ordinary civil litigation, have concluded
that mass torts do not represent a serious problem for the judicial system. For
example, Professor Siliciano asserts that “long delays, high transaction costs, defendant
bankruptcies, and unpaid claimants” are not pathologies unique to mass torts, but they
are conditions that “will naturally and inevitably arise when any liability-based system of
injury compensation confronts large numbers of similar cases.”6 Indeed, he argues that,
2. See, e.g., Judicial Conference of the United States, Report of the Judicial Conference Ad Hoc Committee
on Asbestos Litigation 13 (March 14, 1991) [hereinafter Ad Hoc Committee Report] (“The transaction
costs associated with asbestos litigation are an unconscionable burden on the victims of asbestos disease.”);
Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis,
59 Brook. L. Rev. 961, 963 (“transaction costs are excessive, far outstripping the amounts paid out in
compensation”).
3. James S. Kakalik et al., Costs of Asbestos Litigation (1983). Another 37 cents went to defendants’ attorneys’
fees and expenses while 26 cents went to plaintiffs’ attorneys’ fees and expenses. Id. at vii-viii, Table S.2.
4. To illustrate, assume that a settlement or verdict is $100. Plaintiff receives $60; her attorney receives $40
for fees and expenses. Defendants and insurers incur an additional $40 in fees and expenses. The total payments
are $140, of which plaintiff receives $60 or 42%. In asbestos litigation before 1983, plaintiffs’ attorneys’
fees and expenses were 41% and defendants’ attorneys’ fees and expenses were 58%, but we do not know
whether such high defense fees and expenses are typical or whether they remain at such a high level.
5. James S. Kakalik & Nicholas M. Pace, Costs and Compensation Paid in Tort Litigation 74, Fig. 7.2
(1986).
6. John A. Siliciano, Mass Torts and the Rhetoric of Crisis, 80 Cornell L. Rev. 990, 991 (1995).
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Appendix C: Mass Torts Problems & Proposals
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