In recent years there have been many proposals for potential mechanisms to resolve mass tort claims. These claims are increasing due to the desire of settling claims quickly and fairly, and to increase the amount of awards by decreasing litigation costs. But it involves numerous and dispersed claims filed in multiple jurisdictions that, though may be based on exposure to a common product or substance, often involve highly individualized factual circumstances that make them resistant to easy resolution. The pressure of mass tort litigation can be overwhelming. The sheer volume of mass tort claims can present an insurmountable burden for both litigants and the judicial system. Such pressures have led to breakdown in the civil justice system. Defendants face extreme pressure to settle claims that they cannot possibly litigate in their favor. Although many potential means have been derived for settling such claims but they are of little success. Class action mechanisms, legislative and bankruptcy remedies are few of them. In the light of this situation, this paper is an attempt to move away from traditional mechanisms and towards the procedures that are more administrative in nature to resolve mass tort claims and it should be facilitated by putting in place a more formal structure to provide an administrative solution. As a legal scholar, this paper also tries to bring out the problems which an administrative set-up established to solve mass tort claims could face and explores other alternatives apart from administrative approach.
A mass tort is a single tort that results in injury to many victims, and therefore involves numerous plaintiffs suing one defendant (or several defendants) who acted negligently. In most mass tort cases, the various individual plaintiffs must be suing based on harms caused by a single common product. Two of the most frequent mass tort claims are:
Consumer product claims: Many plaintiffs might sue together seeking compensation for injuries (or even deaths) caused by dangerous products; Pharmaceutical claims: Unfortunately, even medical products such as drugs—prescribed by a doctor and over-the-counter—intended to help you can be dangerous or deadly.
When a large group of plaintiffs want to sue a common defendant in a single lawsuit, the plaintiffs’ lawyer asks the court for permission to file a mass tort action.
Part I of the paper tries to bring out the problems which arise on account of mass tort claims ranging from numerous claims that are widely dispersed to an ever-expanding group of potential defendants. Many of these problems have made mass tort litigation particularly difficult to resolve.
Part II addresses the potential mechanisms for addressing mass tort liability as well as their shortcomings and discusses different means of resolving the mass tort claims employed over the last several decades from class actions, to contractual claims and bankruptcy system with the help of cases.
Part III focuses on the mass tort cases which has already been resolved with the help of some traditional means. This is particularly critical given the recent evolution of mass tort litigation and helps to understand how far such judgments were justified.
Part IV discusses the tools available within the administration and legal system for resolution of mass tort claims. It brings out the role of litigation very clearly for settlement of mass settlements along with the hindrances that can come in the way of administrative path.
Part V brings other possible alternatives apart from administrative means to solve the problem of mass settlement which could be considered in the future.
Finally, part VI concludes and suggests that although administrative means and litigation can be useful for the settlement of mass tort claims, but still owing to the present dynamic environment, other possible ways should also be looked into and utilized for the settlement of mass tort claims.
I. The Challenges Posed By Mass Torts
As per Professor Nagendra, mass tort litigation is often dysfunctional. The terms used to characterize mass tort litigation vividly illustrate the intractable nature of the problem, with courts and academic commentators concluding that the civil justice system is in state of “crisis”. The courts are flooded with the cases that are often difficult to manage, much less resolve.
For example, in the asbestos cases it is observed that up to one half of the asbestos claims are filed by those people who have little or no physical impairment. Claims have continued to increase, despite the fact that the use of asbestos ceased long ago. But the judicial system is overwhelmed by an elephantine mass of asbestos cases that defies customary judicial administration.
It is also found that claims gravitate more towards certain jurisdictions that plaintiffs believe more favorable. As a result, there is a gross disparity in jury verdicts among the states, usually with the largest verdicts coming from those states that allow large mass filings. Plaintiffs take advantage of such dynamics to inflate the value of claims beyond what is justified which results into inequitable outcomes.
When legitimate claims are tied with dubious claims, the problem is aggravated. Settlement pressure on defendants is increased with the joining of additional claims, and that pressure applies equally to those claims that are meritorious and those that should not receive compensation. As a result, the value of unimpaired claims is inflated.
At the same time, as the number of claims expands, the roster of potential defendants expands as well. Plaintiffs try to look for as many “deep pockets” as possible in order to increase their returns. Although some defendants may be forced into bankruptcy, plaintiffs assert more claims against remaining parties who are peripheral to the litigation. Thus, even the elimination of potential defendants through bankruptcy does not halt the process of litigation.
All of these factors combine to make to make the resolution of mass torts within the civil justice system challenging. The sheer magnitude of the litigation and the dynamics driving it to expand overwhelm the judicial system. That is why there is an urgent need to find other avenues for resolution of mass tort claims. The fundamental problems posed by mass tort claims can be summarized as follows:
i. Numerous and Dispersed Claims
Mass tort litigation is characterized by multiple, dispersed claims. From breast implants to silica claims, the courts are inundated with waves of claims that are often difficult to manage, much less to resolve. In the asbestos context, for example, claims have continued to increase, despite the fact that asbestos use ceased long ago. As the Supreme Court has recognized, the tort system is besieged by an “elephantine mass of asbestos cases” that “defies customary judicial administration.”
ii. Forum Shopping
Moreover, the claims have gravitated toward certain jurisdictions that plaintiffs believe are more favorable. As a result, the bulk of the litigation has occurred in a handful of jurisdictions. Indeed, the lengths to which the plaintiffs’ bar has gone in shopping for favorable forums in the asbestos context have been extreme, prompting certain states to take some action to attempt to correct the problem. Nonetheless, there remains a gross disparity among jurisdictions as to plaintiffs’ ability to successfully pursue mass tort claims, with certain jurisdictions being far more likely to result in large verdicts than others. As a result, extensive and widespread forum shopping continues.
iii. An Ever-Expanding Roster of Potential Defendants
Another important characteristic of mass tort litigation is the expansion in the number of potential defendants. Plaintiffs routinely attempt to bring as many “deep pockets” into the litigation as possible. As a result, the litigation tends to expand despite the resolution of claims, as new claims are filed against an expanding roster of defendants. Moreover, in more mature mass torts, as companies are forced into bankruptcy, plaintiffs assert more tenuous claims against remaining parties who are peripheral to the litigation. Thus, even the elimination of potential defendants does not necessarily halt the expansion of the litigation. In the asbestos context, for example, the major manufacturers have long since entered bankruptcy. Beginning in the 1980s, companies that manufactured asbestos-containing materials such as Johns- Manville and Raybestos were forced into Chapter 11 bankruptcy after being deluged with waves of asbestos-related claims. Since that time, the net of liability has expanded dramatically as the plaintiffs’ bar seeks to hold companies who may have had only an attenuated connection to asbestos-containing products liable for these claims. In fact, there is evidence that such bankruptcies have accelerated claim filings and demands against nonbankrupt defendants. “[A]s one defendant has followed another into Chapter 11, plaintiff attorneys have turned to other defendants to substitute for those in bankruptcy (against whom litigation is stayed) and have increased their financial demands on these defendants.”
iv. New Avenues of Liability
A related phenomenon is the expansion of the range of products and substances that are the subject of the litigation, even where the scientific basis for such claims is less than sound. A prime example is the recent silica litigation. As the claims asserted in asbestos litigation have become increasingly attenuated and the number of companies available to satisfy such claims has shrunk, the plaintiffs’ bar has actively sought out new avenues of liability. One manifestation of this aggressive search has been the recent expansion of litigation based on claims of adverse health effects due to exposure to silica. Indeed, thousands of plaintiffs in the silica litigation have asserted claims against silica defendants for the same injuries they previously attributed to asbestos exposure.
v. Lack of Coordination among Claimants’ Counsel
Another characteristic of modern mass tort litigation is the lack of coordination among the plaintiffs’ bar. Plaintiffs’ counsels often have adverse interests that bring even more pressure on defendants who have to deal with multiple factions representing these varied interests. Most obviously, all plaintiffs’ counsel has an interest in receiving compensation for their own clients as soon as possible. Given the limited pool of resources available to compensate claimants and the fact that the civil litigation system often causes rapid depletion of those scarce resources, all plaintiffs’ counsel have inherently conflicting interests.
II. Resolution Of Mass Torts
Many different means of resolving the mass tort claims have been employed over the last several decades. From class actions, to contractual claims, to bankruptcy system, both parties and judicial systems have sought a mechanism to completely and finally resolve such litigation. However, it is a big failure to bring global resolution to widely dispersed mass tort claims.The inherent conflicts among present and current claimants as well as highly individualized nature of the proof involved in mass tort claims made the class action device generally inappropriate for resolution of such claims.
Likewise, attempts to negotiate agreements with private plaintiffs have failed to bring global peace. Bankruptcy has failed to achieve an adequate resolution of mass tort claims. The most famous example is the Johns-Manville Bankruptcy, which was the first chapter 11 reorganization designed to resolve claims against a major asbestos manufacturer. As a result of the organization, asbestos claim were channeled to an asbestos claim resolution trust and away from the reorganized debtor.The Manville trust failed to provide an adequate solution, becoming depleted as claims were asserted that were in excess of projections. This outcome was largely the result of the trust’s failure to apply rigorous criteria to determine which claims should receive compensation.
All the attempted various mechanisms have one thing in common- they evidence a move towards administrative resolution of mass tort claims. For example, class action settlements, the negotiated bankruptcy plans particularly prepackaged bankruptcies attempted in the asbestos context and private agreements with major plaintiffs’ law firms all indicate a movement towards administrative solutions where the major parties craft a consensual resolution designed to bring global peace to the litigation.
Much of the difficulty in mass tort litigation stems from a lack of alignment between the incentives of plaintiffs’ lawyers engaged in comprehensive peace negotiations and the interest of those whose rights they stand to affect.
It is very problematic that plaintiffs’ counsel receives large amounts of compensation with little associated risk even where a comprehensive settlement results in future claimants receiving small amount of compensation because the funds available to compensate them have been exhausted. I propose to withhold the part of contingency fee received by plaintiffs’ counsel for representing present claimants, hold that amount in escrow, and make its payment contingent upon the successful to future claimants. It would give plaintiff’s counsel an incentive to safeguard the interest of future claimants as part of the compensation would be tied to the
III. Landmark Resolved Mass Tort Cases
Early mass tort bankruptcies demonstrated the importance of imposing strict criteria in assessing which claims should receive compensation. While the original Johns-Manville plan of reorganization established an important precedent for channeling all claims to a post-confirmation trust, the Manville Trust nonetheless failed because it allowed the uncontrolled return of claims to the tort system. Specifically, the Manville Trust’s design allowed all claimants to go back to the tort system to litigate their claims 120 days after they filed a claim against the Trust. Claimants proceeded to litigation en masse, forcing the Trust to litigate on several fronts at once and thereby expend resources that could have been used to compensate claimants.
Judge Weinstein, who intervened during the Manville bankruptcy proceedings and corrected some of the early problems with the Trust, observed that the problems stemmed in part from the influence of certain plaintiffs’ attorneys who used their power to manage the Trust to collect large fees for themselves, despite supervising courts’ efforts to keep the fees reasonable.Indeed, Judge Weinstein observed that there ‘was a frenzied offense by plaintiffs’ bar to dispose of claims by the hundreds and thousands at a time and collect fees before the Trust went broke” and that “the hundreds of millions of dollars in fees received by plaintiffs’ attorneys made assembling large stables of claimants hugely profitable. Due to flaws in the plan and high administrative costs, the Manville claims resolution process had to be drastically overhauled.
IIIB. A.H. Robins
In contrast to the early Manville experience, the procedures established in the reorganization of A.H. Robins proved quite successful in resolving claims fairly and efficiently. A.H. Robins faced a wave of actions in state and federal courts around the country. These actions sought damages for injuries allegedly caused by the Dalkon Shield intrauterine device (“IUD”).(Contraceptive intrauterine device) Mindful of the Manville history, the Robins court approved a plan that offered flexible and easy-to-administer payment options that encouraged the orderly resolution of claims. The Dalkon Shield claimants were permitted to litigate their claims, but not at the expense of those who did not wish to do so. In order to evaluate asserted claims, the court required claimants to provide information regarding their use of the Dalkon Shield, the alleged injury, and the names of physicians and clinics the claimant visited. The court then established a trust facility to pay claims that met pre-established criteria. The Dalkon Shield Trust was able to resolve thousands of pending claims quickly by avoiding the costs associated with litigation. Of the over 350,000 claims filed, only about 6,600 claimants initially elected arbitration or trial.Thus, the vast majority of claimants found immediate compensation offered by the Trust to be just. Of the remaining 6,600 claims, only a handful ultimately proceeded to an arbitration hearing or trial. By 1997, fewer than 300 of the claims were in arbitration or litigation, and about half of those claims had been resolved. The Trust was able not only to reduce administrative costs, but also to resolve pending tort claims more quickly than anticipated. By 1997 virtually all of the claims had been resolved for far less than the $2.4 billion fund (as augmented by accumulated interest from investments) approved by the court to cover all tort claims through the post-confirmation trust. In comparison with the Manville Trust, the Dalkon Shield Trust, during the first four years of its operation, processed approximately five times as many claims, paid the full face amount of its settlement offers, and incurred approximately one-tenth the administrative cost per claim. The success of the Dalkon Shield Trust (and the failure of the Manville Trust) demonstrated the importance of avoiding continued mass tort litigation and employing flexible payment options.
IIIC. Dow Corning
These lessons were taken to heart in the subsequent Dow Corning reorganization. In 1992, the Food and Drug Administration ordered that silicone gel breast implants be taken off the market due to concern that they may cause connective tissue disease. On the heels of the FDA’s action and the attendant publicity, a wave of lawsuits against breast implant manufacturers soon followed. In 1992, more than 3,000 such suits were commenced, including dozens of class actions. Another 15,000 actions were filed in 1993 and 1994. Dow Corning, a manufacturer of silicone breast implants, faced the prospect of defending itself in multiple trials as well as excessive settlement demands from plaintiffs’ lawyers attempting to use the leverage from the looming trial dates to extract concessions. Unable to meaningfully litigate the mass of claims in the tort system, Dow Corning sought resolution of the claims through procedures available within the bankruptcy system. At the outset, Dow Corning objected to the asserted claims on the ground that there was no reliable scientific evidence or expert testimony under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals to support a finding that silicone gel breast implants caused disease. Accordingly, Dow Corning asked the bankruptcy court to (1) determine whether the claimants’ scientific evidence was admissible under Daubert and (2) grant its motion for summary judgment, disallowing thousands of pending disease claims for lack of sufficient admissible evidence of causation. The court agreed that it could adjudicate such threshold issues to assess the validity of the claims. Estimation of any remaining claims would proceed following adjudication of the debtor’s liability. While Dow Corning’s summary judgment motion on threshold issues of disease causation was pending, the parties negotiated a consensual plan of reorganization. That plan set out criteria for allowable disease claims, provided for efficient and fair compensation mechanisms for those who opted to settle, and further provided that unsettled claims would be subjected to a controlled litigation process that would provide the opportunity for resolution of the same threshold, scientific issues.
IIID. Babcock & Wilcox
More recently, procedures similar to those implemented in the Robins and Dow Corning bankruptcy proceedings were proposed by Babcock & Wilcox in its Chapter 11 bankruptcy. Like many companies, Babcock & Wilcox was forced to seek bankruptcy protection after facing waves of claims for asbestos-related disease allegedly caused by asbestos insulation used in industrial boilers it manufactured. At the debtor’s request, the district court first partially withdrew the reference from the bankruptcy court to resolve threshold issues relating to the company’s liability concerning various categories of claims. The court then set a bar date and crafted a special proof of claim form to be used in setting out the factual basis for the claims. The court contemplated that it would hear “motions for summary judgment on threshold liability issues,” including the appropriate standard of liability, the validity of claims asserted by those who were unimpaired, the validity of claimants’ scientific evidence of disease and causation, the appropriate statute of limitations, and other potential defenses. Ultimately, as in Dow Corning, the parties reached a negotiated plan of reorganization against the backdrop of these proposed claims-handling procedures.
IV. An Administrative Alternative
Given these problems with resolving mass tort claims it is not surprising that parties have actively pursued legislative and administrative resolutions. It was even noted by Supreme Court of America that “a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure”.
The rigid application of evidential and legal principles using the tools available in the litigation has proven fruitful in paring down mass tort claims and discerning which claims should receive compensation. This valuable aspect of litigation-based-approach should not be abandoned. Indeed, it is the often absence of such approaches that lead to dysfunction of mass tort litigation.
IVA. The role of litigation in Mass Tort Resolution
There are many ways in which litigation plays an important role in the resolution of mass tort claims. In many cases, litigation has completely precluded mass tort claims, thereby effecting a global resolution.
In the Meridia Pharmaceutical litigation, defendants successfully brought motions for summary judgments that essentially terminated the litigation. The Meridia litigation involved claims brought by patients who had taken an anti-obesity medication they claimed had caused high blood pressure and a variety of cardiovascular events. The judicial panel on Multidistrict Litigation consolidated the litigation before the U.S. District Court for Northern Court of Ohio. After significant discovery and briefing on a consolidated basis, the Court granted summary judgment to all claims, finding that the drug’s labeling adequately warned of potential increase in blood pressure and alleged associated consequences. The Court’s ruling effectively ended the litigation on a nationwide basis, thereby achieving a global resolution.
Even where litigation does not completely resolve mass tort claims, it may play an important role in significantly narrowing the litigation that it becomes manageable. In the PPA(phenylpropanolamine)- drug used in many preparations to relieve allergic reactions or respiratory infections litigation, initial Daubert’s rulings played an important role in determining which claims should receive compensation. After discovery and hearings regarding the scientific evidence of causation, the direct Court presiding over the Multi District Litigation proceedings issued a ruling that granted in part defendant Daubert’s motion. The Court excluded evidence regarding a causative link between PPA and hemorrhagic or ischemic strokes (stroke caused by the rupture of a blood vessel in the brain), where plaintiffs had not taken the medication within seventy two hours of their stroke and further excluded expert evidence regarding any casual link between PPA and all other alleged injuries such as seizures, cardiac injuries and psychoses. It influenced State Court litigation because the Federal Court invited State Court judges presiding over similar litigation to attend the Daubert hearings. Thus Litigation can effectively shape the mass tort claims, as in the PPA litigation and it can have a dramatic effect on resolving such claims.
Likewise, litigation has played a significant role within certain Mass Tort bankruptcy proceedings. In the A.H. Robins Bankruptcy proceedings, claimants seeking damages for injuries sustained as a result of using the Dalkon Shield intrauterine contraceptive devices were permitted to litigate their claims, but not at the expense of those claimants who did not wish to do so. In order to evaluate asserted claims, the court required the “information of the claimant’s use of Dalkon Shield, such as the type of injury alleged and the names of the physicians or clinics visited by the claimant”. The court then established a trust facility to pay claims that meet preestablished criteria. Application of rigorous criteria resulted in the preservation of limited funds available to pay claimants. Of the over 350,000 claims filed, only about 6600 claimants initially elected arbitration or trial. By 1997 virtually all of the claims have been resolved for far less than the $2.4 billion fund approved by the court to cover all tort claims through the post confirmation trust. In comparison with Manville trust, the Dalkon Shield trust- during the first four years of its operation-processed five times as many claims, paid the full face amount of its settlement offers, and incurred one-tenth the administrative cost per claim.
Also, litigation played an important role in the Dow Corning Reorganization. In these bankruptcy proceedings, debtor Dow Corning objected to breast implant claims on the grounds that there was no reliable scientific evidence or expert testimony, under the standards set forth in Daubert, to support a finding that silicone gel breast implants caused disease. Dow Corning asked the bankruptcy court (1) to determine whether the claimant’s scientific evidence was admissible under Daubert and (2) grant its motion for summary judgment and disallows thousands of pending disease claims for lack of sufficient admissible evidence of causation. The court agreed that it could adjudicate such threshold issues in order to assess the validity of the claims. Estimation of those claims that were not disallowed would proceed following adjudication of the debtor’s liability.While Dow Corning’s summary judgment notion on threshold issues of disease causation was pending, the parties negotiated a consensual plan for reorganization. That plan set out criteria for allowable disease claims, provided for efficient and fair compensation mechanisms for those who opted to settle, and further provided that unsettled claims would be subjected to a controlled litigation process that would provide the opportunity for the resolution of the same threshold, scientific issues.
Litigation-type procedures have played significant role in asbestos bankruptcies. In the Backbock & Wilcox bankruptcy, the district court partially withdrew the reference from the bankruptcy court to resolve the threshold issues relating to the company’s liability concerning various categories of claims. The court set a Bar date and then crafted a special proof-of-claim form to be used in setting out the factual basis for claims. The court contemplated that it would hear “motions for summary judgment on threshold liability issues,” such as “the appropriate standard of liability, the availability of punitive damages, the validity of claims based on unreliable scientific evidence of disease and/or causation, the appropriate statute of limitations, and the applicability of scientific purchaser and government contractor of defenses”. Ultimately as in Dow Corning, the parties reached a negotiated plan of reorganization against the backdrop of these proposed claims handling procedures.
Thus, even where there has been a negotiated resolution, litigation and litigation-type procedures have played a prominent role in defining the scope of liability and determining which claims should be paid. Litigation therefore plays an important role and should play an important role in defining mass tort liability.
IVB. The Barriers to an Administrative Solution
While legislative and administrative efforts continue, to date none has been very successful. The decades-long process has proved far from effective in addressing a significant problem plaguing the civil justice system. It is simply not feasible in many cases to employ administrative solutions to resolve mass tort litigation. Given the high stakes involved and the many conflicting political interests, timely agreement over proposed legislative or administrative solutions is often impossible to achieve. Although, litigation plays an important role in the resolution of mass tort claims, there are significant barriers to utilizing administrative remedies.
First, there are significant conflicts within the plaintiff’s bar that may preclude using administrative solutions to resolve mass tort claims. In the asbestos litigation there are plaintiff’s counsels who specialize in representing clients who suffer predominantly from malignant disease and those who specialize in representing claimants with various nonmalignant conditions. Malignant conditions have more serious conditions but they are few in number. Their interest clashes with those nonmalignant claimants who represent the bulk of asserted claims and therefore can exercise significant leverage against defendants, but their claims are demonstrably less serious. Because there is diversity in types of claims different firms handle, the interest of the firm may differ dramatically. Thus, a firm that handles predominantly malignant claims will have the opposite incentives. Accordingly, it may be difficult to reach any agreement among the plaintiff’s bar, and certain elements may vigorously oppose the administrative solution.
Second, there may not be uniformity among plaintiffs’’ counsel with respect to the types of the claims they represent, there is a significant opportunity and incentive for cheating. In the asbestos litigation, medical screeners have departed from accepted medical standards by diagnosing asbestos related ‘injuries’ that fail to meet minimum diagnostic criteria set by American Thoracic Society of the American Medical Association. As a result, huge numbers of unimpaired claims have been generated by mass screening programs. Even though the filing of such claims may hurt all plaintiffs’ firms because their compensation is tied to the successful compensation of future claims, the cheaters will benefit by receiving immediate compensation for dubious claims and the benefit may outweigh any harm that occurs as a result of escrow arrangements.
Thirdly, the claims cannot decrease by this way in near future. In the asbestos litigation, there have been dramatic increases in claims that are at odds with underlying disease trends, which should be decreasing. Caseloads have burgeoned-not because of an increase in numbers of seriously ill-but rather because of enormous incentives for plaintiffs to enter lottery and the far more enormous incentives for plaintiffs’ lawyers to obtain ever increasing number of claimants. The increase in claims is comprised in large parts of claims asserted by individuals with no functional impairment. The opinion that the periods during which plaintiffs’ counsel fees are placed in escrow “need not be especially long” and “not as long as the latency periods for the kinds of disease implicated by mass torts” may render administrative solution ineffective.
Moreover, if the incentive is not large enough, it may not override the natural incentive that counsel with large inventories of current claims has to ensure maximum compensation for their clients.
Fourthly, the administrative solution forces plaintiffs’ lawyers who represent present claimants to consider the interest of future claimants as if they two were their clients. Accordingly, it creates ethical restrictions regarding the duty of loyalty owned to one’s clients and to zealously advocate on their behalf. It would divide the loyalties of plaintiffs’ counsel in such a manner that it is at odds with our current notions of appropriate representation.
V. Other Possible Alternatives
As a legal scholar, I would suggest adaptations of current rules (e.g., consolidation), revisions in current rules (multidistricting, class actions), and new fora and compensation mechanisms (special courts, claims resolutions facilities). Most of these proposals focus on procedure rather than on substantive doctrine, and most are aimed at increasing judges' ability to achieve global resolutions of mass tort litigation. None deals directly with the factual and legal complexity of the cases and addresses the conflicts of interest inherent in the litigation or the problems related to future plaintiffs. Perhaps most important, these proposals ignore the peculiar risk profile that drives mass tort litigation. In an effort to reduce transaction costs and expedite settlement, they aim to rationalize what courts are already doing while failing to confront the difficult ethical and equity issues now inextricably intertwined with mass personal injury litigation.
If a mass tort litigation is resolved by aggregation and creation of a compensation fund, that fund can be paid out and the remaining litigation resolved through a claims facility. Examples include the Manville Personal Injury Settlement Trust and the Dalkon Shield Claimants' Trust Facility, both established as a result of Chapter 11 bankruptcy proceedings. The advantages and shortcomings of such facilities illustrate how the special character of mass tort litigation interacts with reform proposals.
Claims facilities offer a combination of administrative compensation schedules, alternative dispute resolution and, in some instances, jury trials, with procedures tailored to meet the requirements of plaintiffs' attorneys and defendants in particular cases. Claims facilities have clear advantages. As, they are sui generis (unique), they necessitate negotiating agreements only within the narrow confines of a specific litigation. But claims facilities are no panacea. Typically, they emerge late in a litigation, often after the defendants have entered bankruptcy proceedings, when funds to compensate plaintiffs may be seriously depleted. Often they offer less compensation to individuals with pending claims than the compensation received by claimants who were successful in prior litigation. They eliminate punitive damages and their reliance on administrative procedures denies many, if not all, injured individuals an opportunity to have their cases heard and to bring culpable defendants to account in a public forum. Mass torts present the civil justice system with a unique challenge. Judges and lawyers have responded with a host of procedural innovations. In selecting among these innovative mechanisms, or fashioning new procedures to resolve these cases, public and private decision makers need to think carefully about the social and economic realities that underlie the litigation. Otherwise, they run the risk of exacerbating the problematic aspects of the litigation, without confronting the challenges it poses for the civil justice system.
VI. Conclusion And Suggestions
Mass tort litigation often presents intractable problems for the civil litigation system. The sheer volume of claims and the ability to forum shop serve to defeat the rational and efficient resolution of such claims. The tools available under the Code present a practical solution to these problems. The bankruptcy system affords an opportunity for centralized resolution of all related claims in a single proceeding in which those claims that have merit may be equitably compensated, while those that do not may be disallowed. Once claims are centralized and consolidated utilizing procedural mechanisms, traditional litigation tools such as application of the requirements ensuring the reliability of scientific evidence and summary judgment procedures to address common issues of liability and damages may be employed to separate those claims that have merit from those that do not. Because the proceedings occur in a single forum where all interested parties are represented, they ensure uniformity and equality in treatment that is sorely lacking outside of Chapter 11. As mass tort litigation expands to new products and defendants, it is likely that courts will increasingly be called upon to employ these tools to efficiently and equitably resolve such litigation.
The researcher concludes that, although in some respects mass tort litigation has seemed to resolve it or at least its magnitude has seemed to lessen in recent years, it remains a significant problem that has to be addressed by the civil justice system for the foreseeable future. Given our complex and technologically advanced society, new products and substances are constantly introduced that may have unrecognized effects on human health and society.
The cost placed on the civil justice system and societies in general by mass tort litigation are in many instances seemingly unnecessary and unwarranted. Moreover, the often inequitable outcomes are undesirable and intolerable to the extent that one of the goals of our justice system is the accurate and efficient adjudication of claims brought by private litigation. Administrative and other alternatives should be used for mass tort settlement for better governance of the judicial system
# Rottenstein, Mass Tort, (visited on September 4, 2013) http://www.rotlaw.com/legal-library/mass-torts/.
# Lexisnexis, Martinadle, (visited on September 5, 2013) http://www.attorneys.com/personal-injury/mass-torts/.
# Cf. Nagendra, Richard, Mass Torts in a World of Settlement, 2007, at vii-xi (arguing that litigation based procedures are insufficient to handle current tort mass problems and should be replaced by a more formal administrative procedure.).
# See, e.g., Amchem Prods.Inc., v. Windsor, 521, U.S. 591, 597(1997).
# Ortiz v. Fibreboard Corp.,527 U.S. 815,821 (1999).
# See,e.g., Stephen J. Carroll Et. Al.
# See e.g., Stephen J. Carroll Et. Al.,RAND Inst. For Soc. Justice, ASBESTOS LITIGATION 61 (2005).
# See Nagendra, supra note 2, at 25.
# See id. at 28.
# See Nagendra, supra note 2, at 28.
# Carroll Et Al, supra note 19, at 48.
# Nagendra, supra note 2, at viii.
# Professor Nagendra uses this problem to argue for a formal administrative system. Id.
# Id. at viii-ix.
# Smith, Douglas G., Resolution of Mass Tort Claims in the Bankruptcy System, 1613, (2008).
# Smith, Douglas G., An Administrative Approach to the Resolution of Mass Torts, 899, (2009).
# Id. at 1627.
# See Id. 72.
# Kane v Johns-Manville Corp.,843 F.2d 636.
# Nagendra, supra note 2, at 75.
# Frank. J Macchiarola, The Manville Personal Injury Settlement Trust, 583-84, (1996).
# Nagendra, supra note at 2, at viii.
# Id. at 269-73.
# Id. at S3.
# Id. at 237-38.
# Id. at 239.
# In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710, 754-55 (E.D.N.Y.1991); Frank Macchiarola, The Manville Personal Injury Settlement Trust: Lessons for the Future, 17 CARDOZO L. REV. 583, 602-03 (1996)
# observing that Trust Mechanism was poorly designed and vulnerable to litigation.
# WEINSTEIN, supra note 53, at 106 (“If plaintiffs control the appointment of attorneys, administrators, accountants, and trustees, the entity loses its independence. Such control by those who brought the first major asbestos claims in the Manville bankruptcy is one of the factors that led to the rapid disintegration of the Manville Trust and the need for court intervention to replace management and restructure operations.”); Macchiarola, supra note 94, at 603.
# In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. at 758.
# See In re Johns-Manville Corp., 982 F.2d 721, 727 (2d Cir. 1992).
# A.H. Robins Co. v. Piccinin, 788 F.2d 994, 996 (4th Cir. 1986).
# See Georgene M. Vairo, The Dalkon Shield Claimants Trust: Paradigm Lost (Or Found)?, 61 FORDHAM L. REV.617, 645-46 (1992).
# In re A.H. Robins Co., 862 F.2d 1092, 1093 (4th Cir. 1988).
# Vairo, supra note 101, at 145.
# Id. at 154.
# Id. at 155.
# Id. at 126-27.
# See Vairo, supra note 99, at 655-56.
# In re Dow Corning Corp., 211 B.R. 545, 551 (Bankr. E.D. Mich. 1997).
# Id. at 552-53.
# See id. at 554; In re Dow Corning Corp., 215 B.R. 346, 348.
# In re Dow Corning, 215 B.R. at 352-53.
# See In re Dow Corning, 211 B.R. at 555.
# See generally In re Dow Corning Corp., 244 B.R. 718.
# See In re The Babcock & Wilcox Co., No. 00-0558, 2000 WL 422372, at *4.
# Id. at *4-5.
# Smith, Douglas G., Resolution of Mass Tort Claims in the Bankruptcy System, Vol. 41:1613, (2008).
# See Meridia, 447 F.3d at 861.
# Id. at 863-64.
# Id. at 864.
# See In re Meridia Prods. Liab. Litig., 328F, Supp, 2D, 791, 826.
# Meridia, 447 F.3d at 868-69.
# Barbara J. Rothstein, A Model Mass Tort, 54, (2006).
# In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 289 F. Supp. 2d 1230 (2003).
# Id. at 1240-51.
# Rothstein, supra note 55, at 632-34.
# Richardson v Richardson-Merrell, Inc., 857 F.2d 823,829 (1988).
# Georgene M. Vairo, Georgine, The Dalkon Shield Claimants Trust, and the Rhetoric of Mass Tort Claim Resolution, 153 (1997).
# Weinstein, supra note 1, at 280-81.
# In re A.H. Robins Co., Inc., 862 F.2d 1092,1093 (1988).
# Id. at 126-127.
# Id. at 126-27.
# Vairo, supra note, at 655-56.
# In re Dow Corning, 215 B.R. at 348.
# In re Dow Corning, 215 B.R. at 352.
# In re Dow Corning, 211 B.R. at 555.
# In re Dow Corning, 244 B.R. at 718,719.
# Nagendra, supra note 2, at, at xviii, 98, 167-74.
# In re Babcock v Wilcox Co., No. 00-0558, 2000 WL 422372.
# Id. at *5.
# Id. at *4-5.
# In re Babcock v Wilcox Co., Nos. 00-10992, 2006.
# McGovern, supra note20, at 1748-49.
# Id. at 1749.
# See id. 1747-50.
# See Nagendra, supra note 2, at 148-149.
# Peter H. Schuck, The Worst Should go First, 15 Harv.J.L.& Pub.Pol’Y 541, 564 (1992).
# See Carroll Et Al, supra note 19, at 75.
# NAGENDRA, supra note 2, at 238.
# Id. at 246.
# Understanding Mass Personal Injury Litigation, (Visited on September 6th, 2013)http://www.rand.org/pubs/research_briefs/RB9021/index1.html.
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