Abstract: NOT LONG ago, class action treatment of a mass tort was rarely sought and almost never granted. More recently, class certification has been pursued in the tort arena with increasing frequency and intensity despite the statement in the 1966 Advisory Committee Notes that Rule 23 is not intended to resolve mass torts. It is not unusual in today's practice for a worthy adversary to be a class action specialist rather than a colleague sophisticated in the handling of tort litigation. Obtaining or defeating class certification has become the end game. Form has prevailed over substance, as companies faced with the prospect of res judicata and catastrophic financial loss often cannot afford to risk a trial on the merits in a class action setting, regardless of the meritorious nature of their defenses. Judges, ever mindful of their busy dockets, have fallen prey to the apparent simplicity of using the class action device to dispose of what they perceive will be an onslaught of new cases. Thus, more and more cases are certified and subsequently settle, the net result of which only serves to foster more class actions and the further erosion of the intended purpose of Rule 23. The uncontrolled threat No mass tort litigation better illustrates how the uncontrolled threat of class certification has overshadowed the inquiry into the merits of the claims than the silicone breast implant litigation. One company has been brought to its knees and is in bankruptcy. The other three principal manufacturers have been compelled to expend untold millions of dollars defending claims that medical science has failed to substantiate. To the contrary, numerous epidemiological studies conducted by the most prestigious medical institutions and researchers in this country have concluded that women with implants are at no significant increased risk of acquiring adverse health effects than women without implants. Another judicial crisis of equal enormity looms ahead in the form of the fenphen diet regimen. Already dozens of class actions have been filed in state and federal courts seeking national and statewide relief. Decisions on the certifiability of those classes are likely to be made in the courtroom before science has spoken to a reasonable degree of medical probability on the general or individual issues of causation. Clarification but no cure The recent Amchem decision offers some hope of defeating class actions in the mass tort context on the basis of disparities among class members, while at the same time it casts doubt on the permissibility of opt-out settlements, at least unless the standard requirements of Rule 23 are met. Even meeting those requirements may be insufficient, however, to permit certification of future injury claims where no present injury exists, thus raising the possible preclusion of settling such claims. …
Publication Year: 1998
Publication Date: 1998-01-01
Language: en
Type: article
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