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Both approaches represent conceptually powerful ways of identifying possible problems
and solutions. On the other hand, implementing these principles will clearly require
legislative actions designed to alter dramatically the status quo. For that reason, achieving
the desired outcomes may be politically impractical. We do not examine these criteria in
depth at this time, but we examine legislative proposals in Part II.B. For now, we present
the Weinstein and Schwarzer criteria to demonstrate the multidimensional complexity of
mass torts problems. Their criteria provide vivid testimony as to why comprehensive
solutions have eluded policy makers.
E. Problems
As the look at idealized criteria shows, one can examine asserted problems in mass torts
litigation from a number of angles and levels. Proposed solutions should be commensurate
with the scope and level of the problem addressed. For example, problems inherent
in the mass production of potentially dangerous products cannot be addressed at the
core through procedural rule making. Legislatures and administrative bodies have the
primary roles in defining the standards by which the safety of mass products will be
judged.
1. Defining mass torts
While we posited an arbitrary definition above, referring to thousands of claims, there is
a serious definitional problem that must be resolved before concrete measures to address
mass torts problems can be drafted and applied. What volume and maturity levels should
be required before a group of cases should be treated like a mass tort?
A difficult threshold question is whether a single definition of mass torts can capture
the variety of cases that share the name. As we will see in the discussion at section II.B.5
(“Rheingold dissent and proposal”), there are the rare mass torts, like asbestos and Dalkon
Shield, that encompass hundreds of thousands of individual claims. Can these case congregations
be treated the same way as cases like DES and Bendectin that include “only”
thousands of claims? As we will see, there is dissent on that point.
The American Bar Association Commission on Mass Torts found that mass torts “might
well include relatively minor personal injury or property damage claims as well as claims
for economic loss. Similarly, ‘mass tort litigation’ could run the gamut from traditional
negligence or product liability claims to antitrust, securities litigation or a variety of consumer
claims.”20 The commission chose to define “mass tort litigation” as involving “at
least 100 civil tort actions arising from a single accident or use of or exposure to the same
20. American Bar Association Commission on Mass Torts, Report to the House of Delegates 5 (1989)
[hereinafter ABA Commission Report].
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Appendix C: Mass Torts Problems & Proposals
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