Title: Mass Tort Class Actions in the New Millennium
Abstract: Sofia Adrogue* I. Mass Tort Class Actions-Abuse on Both Sides of the v? At present, torts seem to have become a on the litigation landscape. The specialized tort plaintiffs' bar that emerged during the 1980s has accumulated capital as a result of its success in litigating earlier claims, and is skillful and aggressive in identifying new investment opportunities. A tort defense bar has developed to counter these plaintiffs' attorney efforts. An elite of trial judges has come forward, ready to set aside traditional case-at-a-time disposition procedures in favor of aggregative procedures for disposing of hundreds or even thousands of cases. A cottage industry of experts and special masters supports their efforts by designing complex procedures and crafting complex settlements. Appellate courts wrestle with collective disposition of claims. Lawyers, judges, and business executives no longer wonder whether or not there will be another tort, but rather what the next tort will be.1 A larger than usual cast of characters exists for the public performance entitled tort litigation.2 This Article scrutinizes the state of this fixture on the litigation landscape. 3 Federal Rule of Civil Procedure 23 is its primary arsenal. In recent years, federal courts have used Rule 23 to authorize class actions4 in a number of single-incident accident cases and a smaller number of exposure tort cases. Class certification of torts has emerged as a vehicle of choice despite the Advisory Committee's notation that the class action device is ordinarily not appropriate for [a] `mass accident' resulting in injuries to numerous persons.5 This admonition, first espoused in 1966 in Rule 23's legislative history, has been heeded recently by some federal courts that have ruled that Rule 23 cannot be used in toxic tort cases on issues of liability, defenses to liability, causation, and damages.6 Courts charge the class action device with widespread abuse by attorneys on both sides of the v. This abuse includes unprofessional practices relating to attorneys' fees, sweetheart settlement deals, dilatory motion practice, harassing discovery, and misrepresentations to judges. This alleged tort morass spawns unique ethical considerations for the attorneys and courts alike. This Article surveys tort litigation. Part II presents an overview of commentary, primarily by the media. Part III articulates selected basics of tort litigation, concluding that denial of class certification is again in vogue, reminiscent of earlier phases of tort litigation. Part IV explores the renewed opposition to the tort class action in selected cases in the Third, Fifth, and other circuits, as well as in the academic fora. Parts V and VI highlight the ethical tensions that tort litigation has engendered and the furor that has been created in the media, the academic community, the practicing bar, and the judiciary. They argue that although the queries appear rudimentary, the responses, if attainable, are less than simple. Parts VII and VIII conclude with a simple proposition. Viable mechanisms may exist within the courts to curtail any abuses that may surface in the tort class action arena. II. The Class Action Controversy-The Commentary Commentary on tort litigation and class actions includes the following: 1. Typhoons of litigation like this one have come to be known as mass torts, and there is no more terrifying phrase in corporate law. It is well known, and largely accepted, that companies will often make a business judgment to settle lawsuits that have little merit, simply to be done with them. A tort is the ultimate abuse of this idea. The dynamics of a tort demand that companies try to settle litigation-regardless of the merits-if they want to continue in business. The volume of lawsuits, their oppressive weight, is what brings companies to their knees . …
Publication Year: 1998
Publication Date: 1998-07-01
Language: en
Type: article
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