Mass Remedies for Mass Torts

Article excerpt

ONE of the unfortunate byproducts of modern life, with all its "miracles of science," is the presence of toxins and other hidden dangers that can silently wreak damage on people (and the environment).

These dangers have given rise to something previously unknown in legal history: the mass tort - injury to thousands of unknowing and scattered victims, sometimes with harm that appears only after many years. Mass torts have spawned a wholly new kind of huge and immensely complex litigation.

(Another kind of mass tort, such as a plane crash or industrial accident, also can involve many people; but it is a single event in which injury occurs immediately and the facts are similar for all the victims. The resulting litigation can be logistically complicated, but often the legal issues are straightforward.)

The grim roll call of products alleged to have caused mass torts - and which more than allegedly caused mass litigation - is familiar: Agent Orange, the Dalkon Shield, artificial-heart valves, various prescription drugs, silicone gel breast implants - and the grandfather of them all, asbestos.

During the decades when asbestos was widely used as a fire-retardant in buildings, brake linings, and warships, millions of workers were exposed to it. In the 1960s, it become publicly known that asbestos fibers are a potential health hazard. Starting in 1973, lawsuits came in blizzards.

In a 1993 law-journal article, Christopher Edley (now a Clinton administration official) and Paul Weiler, both professors at the Harvard Law School, wrote, "The asbestos crisis is ... a Dickensian tale about the limitations of the traditional legal process." Some facts:

* More than 100,000 asbestos lawsuits are pending, and at least that many new suits could still be filed.

* Forty to 60 percent of suits are filed by people who do not have an asbestos-related disease. These suits clog court dockets, and many of these claimants actually recover money in "batch settlements," reducing funds available for ill claimants. …