Academic journal article Defense Counsel Journal

Forces Shaping Mass Tort Litigation: Strategies for Defense Counsel

Academic journal article Defense Counsel Journal

Forces Shaping Mass Tort Litigation: Strategies for Defense Counsel

Article excerpt

Unless corrective steps are taken, American business and civil justice systems may not be able to withstand the onslaught of class actions

RESOLVING mass tort litigation is complex because of a variety of forces. While the task of doing so falls to courts, administrative agencies and lawyers, the lay public and the media often drive a frenzy that creates insatiable demands on the system and impedes the fair and expeditious resolution of the claims. Responding to media sensationalism, the lay public overestimates the nature and extent of the problem and the solutions the civil justice system has to offer for the alleged tortious activity of corporate America. Liability issues are oversimplified, leading to far too many claims without merit. The large number of questionable claims hinders the resolution of genuine claims.

The proliferation of Internet users and websites has created an additional dimension of distortion. Disgruntled and Internet savvy consumers need only know how to access various sites on the Internet before they are parties to a massive class action lawsuit. Type in "asbestos litigation" or "breast implant litigation," and almost any search engine will take the user to a number of plaintiffs' attorneys' websites.(1) But the Internet has a positive aspect as well. It may be a tool to reduce litigation costs by offering a variety of workable solutions to the growing problems of inefficiency and redundancy in mass tort litigation.

The breast implant litigation illustrates how mass tort litigation in the United States has gone terribly wrong. But there are strategies and viewpoints that have emerged from both the trenches and the civil justice system experts for battling the mass tort litigation problem.


A. The Cases

For more than a decade, thousands of women have claimed that their silicone breast implants have caused them to suffer a wide variety of often non-specific ailments. Their claims have been widely and vigorously reported by the media, including coverage of consumer-led protest marches on the offices of manufacturers. Given that virtually all well-controlled scientific studies following accepted scientific methodology have concluded that there is no causal link, it is puzzling how the breast implant saga was "created." Anecdotally, however, it provides insight into the future of mass tort litigation and plaintiffs' strategies.

Plaintiffs in the breast implant cases have asserted strict liability, negligence and breach of warranty claims against various breast implant manufacturers. The battlegrounds have been both state and federal courts, and the stakes for both the larger and smaller manufacturers are exceedingly high.

Over time, the plaintiffs' theories have varied because the scientific evidence linking silicone breast implants with the alleged injuries was very weak from the outset. This shifting-sands approach to liability, designed to deflect legal and scientific challenges to the viability of claims, has become increasingly popular. The singular truth is that once there are enough claims, the focus necessarily shifts from defending the product to saving the company. It is often argued that the only rational approach is settlement. Leverage based on numbers of claims, as opposed to the strength of liability, is the key focus of plaintiffs' counsel. It becomes readily apparent then that the scope of potential mass tort litigation is boundless.

A single theory of liability or claim of injury will limit the number of potential plaintiffs. Therefore, plaintiffs' counsel identify many potential claims of injury. This increases the defendant's potential exposure by increasing the number of plaintiffs and spreads the cost of plaintiffs' counsel over many more claims. In the breast implant cases, for example, most plaintiffs initially focused on the alleged risk of breast cancer from silicone implants. …

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