SOMETHING is terribly wrong with a system of civil justice in which a major corporation, Dow Corning, is forced to file for bankruptcy as a result of being named as a defendant in a horde of product liability claims that have no basis in science.(1) Each new medical study demonstrating that there is no scientific basis for claims that silicon breast implants cause the many maladies that are alleged by the plaintiffs in the breast implant litigation is a reminder of how out of balance the American civil justice system has become.
The courts seem to be driven by two overriding concerns--first, to process efficiently the multiple claims made in so-called mass torts and, second, to ensure a mechanism for compensating claimants. Defendants' due process rights are likely to get lost in the massive numbers. To a large extent, this attitude has been shaped by the asbestos litigation. Faced with thousands of claims that exposure to asbestos caused mesothelioma, severe respiratory diseases and other disorders, and a body of scientific literature establishing that asbestos in fact does cause many of these diseases, federal and state courts devised ways to expedite the processing of those claims. Indeed, it has been recognized by Chief Judge Posner of the Seventh Circuit that the number of asbestos cases was so great as to exert a "wellnigh irresistible pressure to bend the normal rules."(2) When rules are bent, defendants' due process rights suffer.
Inspired by the success of the asbestos litigation, plaintiffs' attorneys were quick to attempt to cast new product liability suits into its mold. These attempts should be resisted at all costs. The experience of the computer industry, a newcomer to the world of product liability, in, responding to the so-called repetitive stress injury (RSI) litigation illustrates what can be accomplished when defendants vigorously press their due process rights from the outset of a wave of "mass tort" claims.
A. Tidal Wave Begins
In the Spring of 1992, plaintiffs' attorneys who were active in the asbestos litigation, but saw it waning, began filing claims against computer manufacturers alleging that the use of computer keyboards caused RSI and "cumulative trauma disorders" (CTDs). RSI and CTDs are not medically diagnostic terms but rather catchall phrases that include virtually any disorder of the musculoskeletal system of the upper torso, from the fingers to the lower lumbar back. The plaintiffs' attorneys proclaimed RSI claims as the asbestos litigation of the 1990s, and they quickly tried to have them treated in the same way.
As with asbestos, there is massive "exposure" of a substantial and evergrowing portion of the population to computer keyboards. Plaintiffs' counsel saw computer users as a virtually endless pool of potential plaintiffs, just as the union workers were in the asbestos litigation. All they needed were the procedural vehicles to package these cases into a significantly large enough bundle to overwhelm the court system, so that it would lose sight of the fact that these are individual cases and begin to treat them simply as numbers to be processed by finding a way to pay compensation. They hoped thereby to coerce the computer industry into paying to settle, much as the manufacturers of breast implants agreed to do.
To accomplish this, a well-orchestrated, multifront campaign was mounted, including (1) consolidation of all cases pending in the U.S. District Court for the Eastern District of New York, (2) filing RSI claims in a number of federal district courts around the country, 3 seeking from the Judicial Panel on Multidistrict Litigation a transfer of all RSI cases pending in federal courts to the Eastern District of New York, and (4) seeking to consolidate cases pending in the state courts. The strategy ultimately failed because the computer industry defendants vigorously asserted their due process rights at every stage of the litigation. …