Courts Adapting to Mass Torts

Article excerpt

It seems that about once each year, a product with widespread national use suddenly appears to be more harmful than helpful. That, of course, usually breeds a plethora of lawsuits across the country.

The latest mass tort is the diet drug regimen known as Fen/phen, a combination of drugs that in some instances apparently can produce very serious heart and lung problems. This situation has spawned thousands of suits across the country. It will follow, I believe, a predictable pattern based on the history of such events.

In the last decade we have had asbestos, breast implants, Norplant, pedicle screws, J-wires, and the grand daddy of all mass torts -- tobacco -- to name a few. Due to the multiplicity of these cases, which frequently number in the hundreds of thousands, the federal courts have developed a way to minimize the impact of these cases on the court system. The primary vehicle is multi-district litigation (MDL). This procedure requires that one federal judge be appointed to oversee all federal cases in the country. Cases filed in Oklahoma and all other federal courts are literally transferred, file folder and all contents, to the supervising judge. The judge then appoints a group of lawyers to the plaintiffs and defendants steering committees. These committees usually consist of the leading plaintiff's lawyers who were first active in the cases and the defense lawyers representing the manufacturers. These lawyers are responsible for all discovery. They depose defendant officers, employees, and experts, and obtain all defense studies and documents. At the conclusion of all discovery, the evidence is made available to all plaintiffs' lawyers for use in their individual cases when they are returned to the original courts. This evidence is usually admitted by the MDL judge, and may be introduced in individual cases merely by identification as MDL discovery items. Another vehicle for mass cases is the class action, which may require an article of its own. Recent federal court decisions have made it much more difficult to obtain national class certification. More often federal judges are finding that commonality of all necessary issues are rarely present. Therefore, the most prevalent current use of class action suits is for settlement purposes. Often a primary goal of the MDL steering committee is to effect a national settlement. If terms can be agreed on, a settlement class can be certified. …