The Crazy Quilt in the Courts 'Mass Tort' Cases Feature Products like Asbestos, Many Plaintiffs, Missing Defendants, and Shaky Justice

Article excerpt

As the plane taxied into takeoff position, the judge began to think about lawsuits. This, of course, was not an unusual use of his time, especially since the flight was taking him to a meeting of the Mass Torts Litigation Committee.

Sponsored by the federally supported State Justice Institute, this group - too loosely assembled to be called an organization - meets three or four times a year and gives the 20 state trial judges who belong an opportunity to discuss problems and compare

solutions. Federal judges regularly assemble for this purpose; they even have a well-funded Federal Judicial Center to coordinate research, training, and informational convocations. State judges, by contrast, have no organization - not even a format - that permit judges from, say, Massachusetts to exchange thoughts with judges from the West Coast on difficulties they all share. The National Judicial College offers superb topical instruction, but it was not designed to stimulate unified approaches to collective problems. The same is true of the superbly organized National Center for State Courts. The Mass Torts Litigation Committee started in 1990 as the Asbestos Litigation Committee. The lump of lawsuits spawned by the long-term effects of industrial and commercial asbestos is still far from dissolution, and the spectrum of broad-gauge litigation has expanded beyond the courts' ability to service it fairly and efficiently. A "tort" is wrongful conduct that harms someone - negligently causing an injury, for instance, or marketing a harmful product. A "mass" tort is wrongful conduct that harms large numbers of people through contact with a particular product: lead paint, silicone, or tobacco. A useful paradigm? The characteristic of a "mass tort" is that, although each injured person's story is of course in some ways unique, all individuals share a common experience: contact with or use of the substance that is said to have caused the injury. As the judge was painfully aware, litigation involving any such collection of claims strains the judicial system terribly. Besides his regular general docket of 750 cases, he was responsible for all the 650 asbestos-related suits in his state; another judge managed the silicone-implant litigation. The "tobacco" suits did not yet require special handling because, so far, not many had come to actual trial. Indeed, few had even been filed, a recognition by the lawyers, perhaps, that so far, nationwide, plaintiffs had generally fared poorly. Lead-paint poisoning, oddly enough, did not afflict the courts the way the other mass torts did. …