Has the Fat Lady Sung? the Future of Mass Toxic Torts

By Hensler, Deborah R. | The Review of Litigation, September 1, 2007 | Go to article overview

Has the Fat Lady Sung? the Future of Mass Toxic Torts


Hensler, Deborah R., The Review of Litigation


I. INTRODUCTION

For the last twenty years, mass toxic tort litigation has dominated academic, judicial, and public policy debate over product liability litigation. Scholars chronicled the civil justice system's response to mass litigation arising out of exposure to asbestos1 and Agent Orange,2 and the use of pharmaceutical products and medical devices, including Bendectin,3 blood factor concentrate,4 intrauterine contraceptive devices,5 and silicone gel breast implants.6 Appellate opinions discussed the impact of mass litigation procedures on corporate decision-making. Legal ethicists debated the fairness of mass settlements. Journalists highlighted the role of larger-than-life (and richer than Croesus) mass tort plaintiff attorneys in shaping the litigation.9 Committees of judges and practitioners debated how to mold civil procedure rules to fit mass tort cases.10 Risk analysts were asked to predict the advent of the "next mass tort,"11 and practitioners nominated candidates for the title.12 And in 2003, in perhaps the most telling indicator of the rise of mass tort litigation, John Grisham published King of Torts, the story of a public defender who amasses millions when he colludes with a corporation to settle a (rather outlandish) mass product defect lawsuit.

Then, quite recently, the climate of legal opinion on mass toxic torts turned around. Asbestos litigation plummeted13 and silica litigation-often nominated as "the next asbestos"-was stopped in its tracks.14 Asbestos powerhouse firms splintered.15 Some attorneys who had specialized in defending mass toxic tort cases found their colleagues questioning their ability to contribute to their firms' future financial growth.16 The decline in the number of annual filings of new asbestos claims and widespread publicity surrounding Judge Janis Jack's dismissal of apparently fraudulent silica claims-coupled with a decline in new securities class action lawsuit filings17 and Merck's success to date in defending against personal injury claims associated with its now recalled blockbuster drug Vioxx18-seemed to some harbingers of a new era in mass toxic tort litigation. "The future of mass torts and class action is very much in question," opined NYU law professor Geoffrey Miller.19 When, in December 2006, the American Lawyer published an article headlined "It's Over" and written by Alison Frankel, a long time observer of the mass tort phenomenon, some readers may well have believed that mass toxic tort litigation had run its course.20

In fact, Frankel did not assert that mass tort cases are disappearing from the courts:

There will always be people injured by the products or actions of big corporations, and there's still money to be made representing them. But the bonanza-the Wild West era in which mass torts was an unfettered frontier and plaintiffs lawyers seemed to have all the firepower-is over. If you're a plaintiffs lawyer and you haven't already bought the plane and the yacht of your dreams, well, sorry, pal. You're too late.21

As indicators of the end of an era in mass tort litigation, Frankel pointed to the declining number of new asbestos claims filings, a more "vigilant" state and federal judiciary, and defendants' new determination to fight, rather than settle cases. She quoted Joseph Rice, a leading asbestos plaintiff lawyer:

I do not believe the next ten years will be a repeat of the last ten . . . Congress will not allow another tobacco. [Presumably a reference to the state attorneys' general litigation that his partner Ronald Motley spear-headed.] The courts will not allow multiple-jurisdiction litigation over products.22

The source of changes in judicial, legislative and defense attitudes, Frankel argued, was the decades-long tort reform movement-and the overreaching of plaintiff attorneys. 3

Has mass toxic tort litigation reached the end of its life cycle? Having researched and written about this litigation for many years, my curiosity was provoked by Frankel's article and the discussion it engendered among my fellow mass tort aficionados. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Has the Fat Lady Sung? the Future of Mass Toxic Torts
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.