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

Article excerpt

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. I was familiar with the statistical data showing a sharp decline in asbestos litigation and with the seeming collapse of silica litigation when it was revealed that physicians who had diagnosed asbestos disease among asbestos claimants had diagnosed silicosis in the same individuals in support of the latter's silica-related lawsuits. But I have long been persuaded that mass tort litigation is the product of a complex set of socio-legal factors-mass marketing, advances in medical technology, regulatory failure, mass culture, the economics of civil litigation, changes in the composition of the plaintiffs' bar,24 and more recently, the rise of the Internet-and, in the face of the continuing strength of these phenomena I found it difficult to believe that mass toxic tort litigation has collapsed.

To better understand the current situation of mass toxic tort litigation and its likely future, I reviewed federal civil case statistics and the docket of the Judicial Panel on Multidistrict Litigation, searched the Web for indicators of plaintiff and defense firm activity related to mass product litigation, reviewed litigation-related documents, and spoke informally with plaintiff and defense lawyers among my acquaintances who have extensive experience in the mass litigation field. Based on this research, I conclude, along with Frankel, that mass toxic tort litigation has entered a new era in its life cycle. But rumors of the death of mass toxic tort litigation are-as Mark Twain famously proclaimed of rumors of his death-much exaggerated. Mass toxic tort litigation was never the homogeneous, all-successful, ever monstrous phenomenon those who are currently declaring it dead seem to believe. Some potential mass toxic torts died on the vine, when defendants prevailed on key motions or anticipated scientific evidence of causation failed to materialize or the damages associated with injuries or illnesses associated with exposure to a product turned out to be too modest to support the expense of pursuing a mass litigation. Other litigation yielded substantial settlements, but no mass toxic tort cases have ever matched the scale of asbestos.25 The surge of asbestos litigation in the late 1990s and early 200Os and the run-away settlement of the fen-phen diet drug litigation26 may well have fed a perception of a mass product liability litigation monster that is now revealed to be more bogey man than real. But the success of some defendants in cabining their litigation risk to hundreds of millions of dollars rather than billions and the example of Merck's "litigate every case" strategy for the Vioxx litigation-a strategy whose success is still unproven-equally well may be feeding an inaccurate perception that mass toxic torts are fading away.

As Frankel wrote, however, change is afoot. Mass toxic tort exposure may no longer represent a "bet the company" risk for defendants and, if so, the balance of power between defendants and plaintiff attorneys will tilt back again in favor of defendants, where it was firmly lodged in the early era of tobacco and asbestos litigation.27 Plaintiff firms may find fewer easy wins in mass personal injury litigation, which may lead them to pick more carefully lawsuits to invest in-or encourage them to extend their litigation efforts to include securities and consumer fraud allegations. The fat lady has not sung her last aria-but at the moment she is singing a different rune.

In this article I present empirical data on the current status of mass product defect litigation, compare recent to historical trends and suggest what the future may hold. Part II begins by defining "mass toxic tort litigation." Part III summarizes the status of mass toxic tort litigation from the early 1960s through the late 1990s, presents quantitative and qualitative data on recent mass toxic tort litigation, and discusses differences between past and present. Part IV considers the changing dynamics of mass tort litigation and the effect of executive, legislative and judicial policies on these dynamics and the implications of these changes for the future.

II. MASS TOXIC TORT LITIGATION DEFINED

"Mass tort" is not a formal legal designation but a term of art that has come to describe a large number of tort claims arising out of the same factual circumstances and alleging the same or similar injuries. Initially, scholars and practitioners used the term to refer exclusively to personal injury or property damage claims: the quintessential mass tort was the litigation resulting from a catastrophic accident, such as a bridge collapse or hotel fire. By the 1980s the term was being used to refer to claims arising out of exposure to asbestos, Agent Orange, and use of pharmaceutical products-giving rise to the term "mass toxic tort."28 With the growth of "economic torts"-lawsuits grounded in contract or alleging statutory violations but seeking tort-like damages-the term "mass tort" has been defined more broadly to include also cases that only allege financial harm, not personal injury or property damage. Other mass torts include litigation seeking reparations for past human rights abuses29 and litigation seeking changes in public policy.30 Often, commentators sweep securities class actionslitigation that long predates the rise of mass personal injury litigation-under the mass tort litigation umbrella as well.31

What distinguishes mass litigation of all sorts from high-volume "cookie cutter" personal injury and property damage cases such as automobile accident and "slip and fall" lawsuits is that the latter are pursued individually, while the former are collected together and litigated en masse. Plaintiff attorneys who specialize in mass toxic tort litigation typically represent hundreds or thousands of claimants in the same litigation.32 Aggregation allows plaintiff law firms, which operate on a contingency fee basis, to spread the costs and risks of litigation. The result over time has been to lower the risks of bringing factually and legally complex lawsuits against large corporations with huge litigation war chests.33 Since the facts and law of a mass toxic tort litigation34 are the same or similar across all of the claims a litigation comprises, the marginal cost to the plaintiff law firm of representing an additional individual plaintiff is relatively small. If the firm represents all of its clients on individual contingency fee contracts, however, the marginal benefits of taking on additional clients can be quite substantial. As a result, mass toxic tort litigations tend to expand over time, as individual claims that would be too small-or too questionable-to prosecute become viable by virtue of their inclusion in the aggregate.35

By means of a variety of procedural devices, most of the claims associated with a mass toxic tort litigation are funneled into one or a few courts, with the result that one or a few judges preside over all or a large fraction of the cases. These judges manage the cases collectively, and may issue decisions that dispose of all or a large fraction of the claims that constitute the mass litigation. From a judicial standpoint, aggregating cases and deciding issues across-the-board rather than on a claim-by-claim basis permits large efficiency gains. But experience has shown that judicial encouragement of aggregation contributes to the expansion of mass toxic tort litigation.3

Defendants' perspective on mass toxic tort aggregation is conflicted. On the one hand, by reducing plaintiff law firms' costs and risks, aggregation tends to increase defendants' liability exposure, perhaps creating a "bet the company" risk that may drive business decision-makers to settle litigation that they believe is fundamentally non-meritorious. On the other hand, aggregation may drive down the costs of defense (by comparison with defending claims one at a time) and enhance opportunities for settlement that the defendant perceives as advantageous. Aggregation may also offer a vehicle for achieving closure, not only taking claims off the table but also taking the circumstances that created the litigation off the newspapers' front pages, allowing the defendant corporation to focus its energies on its business rather than its legal woes and allowing Wall Street analysts to factor the cost of the litigation into their calculations and to focus on other aspects of the corporation's performance.37

The most obvious and best known vehicle for claims aggregation is the class action. But what distinguishes mass toxic tort litigation procedurally from virtually all other forms of mass tort litigation, such as securities, anti-trust, consumer fraud, reparations, and social policy torts, is that plaintiff and defense attorneys in mass toxic torts have not relied exclusively on class actions to aggregate cases; indeed, through most of the last half-century courts have held that class certification is generally not appropriate for mass personal injury claims in which individual differences among claimants arguably outweigh factual and legal commonalities.38 In the federal courts, under 28 U.S.C. §1407 (the "multi-district litigation" statute), mass tort claims can be collected and transferred to a single judge for pre-trial management; although formally intended only to streamline the pretrial process, multi-districting usually leads to some sort of aggregative disposition.39 Similar procedures are available in a number of state courts. In addition, judges assigned a large number of like claims that are filed within a single court can consolidate formally the claims for some or all purposes, or can issue case management orders that treat cases collectively. Federal and state judges can cooperate informally to manage federal and state lawsuits collectively.40 Because mass toxic tort litigation does not depend on class certification, statutory changes in class action doctrine as well as changes in class action rules do not have the same potential to stop mass toxic tort litigation in its tracks as do other forms of mass litigation that are characterized by small value claims and therefore are not financially viable unless granted class certification.

III. TRENDS IN TOXIC TORT LITIGATION

Mass toxic tort litigation captured attention in the 1980s not because there was a lot of such litigation, but rather because the litigation posed new challenges for parties, their lawyers, and the judges who presided over the cases.41

As mass torts evolved through the 1990s, their scale, as measured by the number of claimants, the amount of damages paid in settlement, and the amount of fees earned by plaintiff attorneys, garnered an increasing share of the attention paid them. The few cases that involved hundreds of thousands of claimants and billions of dollars-such as asbestos and silicone gel breast implants and fenphen-became emblematic of the mass toxic tort phenomenon, while the cases in which defendants prevailed or were successful in limiting the litigation to a more modest scale attracted less attention. Today's mix of plaintiff and defense successes and small, moderate and very large scale litigation looks remarkably similar to the profile of mass toxic torts in the 1990s and early 2000s.

A. Mass Toxic Torts Past

Product liability lawsuits, the pool of cases that spawn mass toxic torts, entered an explosive growth period in the mid 1970s. From 1976 to 1986, annual federal product liability filings increased 270 percent.42 Much of this growth in product liability litigation was attributable to asbestos litigation. But pharmaceutical companies also saw a dramatic growth in cases filed against them. During this period, 72 percent of all federal product liability cases filed against pharmaceutical companies targeted five major defendants, reflecting a surge of mass tort suits, most notably litigation associated with the Dalkon Shield intra-uterine contraceptive device and Bendectin, an anti-nausea drug that was alleged to cause birth defects.43 After 1986 however, annual federal product liability filings declined gradually, at least through 1991.44

Motions for multi-districting under 28 U.S.C. § 1407 offer another measure of the growth of mass litigation (albeit limited to the federal courts). During the 1970s and 1980s combined, a total of 36 motions to multi-district product liability lawsuits were received by the JPMDL, accounting for 5 percent of multi-district motions for all case types. During the 1990s, by contrast, the panel received fifty-four motions to multi-district product liability cases, accounting for more than 10 percent of all motions.45 Whereas in the 1980s the JPMDL granted motions in only 35 percent of product liability cases, in the 1990s the JPMDL granted motions in 72 percent of product liability cases. 46

When my Rand colleague Mark Peterson and I studied mass toxic torts in the early 1990s, we interviewed leading mass tort plaintiff and defense attorneys to identify significant mass personal injury litigations that had occurred beginning in the 1960s. We found eighteen litigations that met our criteria of numerosity, commonality, and interdependence of case values,47 including four that arose out of catastrophic accidents (three fires and one building collapse); seven that arose out of use of pharmaceutical products or medical devices; two involving food products or diet supplements; four that arose out of exposure to toxic substances, including asbestos; and one that arose out of exposure to electro-magnetic radiation. All of the catastrophic accident cases and two other litigations were local or regional; however, fifteen of the eighteen litigations proceeded wholly or substantially in federal courts.

The 1993 Rand report identified cases prosecuted as mass litigation-putative mass torts-but not all such cases succeeded: the mass litigation alleging birth defects linked with Bendectin failed entirely, and two other putative mass torts, the lead paint litigation and EMR litigation, have yet to succeed as mass cases. (The idea that tobacco lawsuits might succeed as mass litigation was then in its infancy.) Agent Orange and asbestos were by far the largest litigations we investigated, at the time numbering more than 200,000 claims each, with the Dalkon Shield litigation trailing somewhat behind them; the full scale of the silicone gel implant litigation was not yet apparent.48

Five years later, the Federal Judicial Center (FJC) undertook a similar descriptive study of mass tort litigation,49 at the request of the Mass Torts Working Group that had been appointed by Chief Justice Rehnquist.50 Like Rand, the FJC identified significant mass torts by talking with key participants in the litigation. Like the Rand study, the FJC included personal injury litigation arising out of catastrophic accidents, use of pharmaceutical products and medical devices, food products and diet supplements and exposure to toxic substances.51 The FJC identified more product-related mass personal injury litigations than Rand had52 (thirty-three compared to thirteen), including a dozen or so that appear to have arisen in the five years after the Rand study was completed. The combined results of the two studies included thirty-five product-related mass personal injury litigations that arose between 1960 and the late 1990s (see Table 1). Most of the cases involved thousands of potential claims, many involved tens of thousands and a few (such as asbestos and silicone breast implant litigation) involved several hundred thousand.

Half (seventeen) of the mass personal injury litigations identified by the studies were consolidated and transferred to a single federal court under the multi-district statute. Only one-third (twelve) were resolved wholly or to a significant degree by a class action settlement, although class certification was sought and denied (or granted but then vacated by appellate action) in a larger number, and in two instances class actions settled a small fraction of cases (asbestos) or related litigation (Dalkon Shield). But about two-thirds (twenty-two) of the mass litigations resulted in aggregate settlements, including both class and non-class global settlements that were intended to resolve all current claims against the defendant(s) (and sometimes future claims as well), and more limited group settlements that resolved all current (and sometimes future) claims represented by one or a few law firms. Some aggregate settlements set a price tag or "cap" on the total amount that the defendant(s) would pay to resolve the litigation, without specifying how the settlement funds would be allocated among claimants; others established an administrative process or schedule for valuing claims. Some of the latter settlements capped the total amount the defendant(s) would be obligated to pay, while others did not.84 The characteristics of settlements varied to some degree with the procedure used to reach a settlement: class action rules and bankruptcy law both require that judges review and approve settlements and bankruptcy law sets certain requirements for how debtor corporations allocate their assets in bankruptcy; in contrast, judges do not generally review settlements reached in other procedural contexts.85

When cases resulted in aggregate settlements, defendants usually paid tens of millions of dollars, and sometimes hundreds of millions or even billions. But in other instances, mass tort litigation collapsed when juries ruled in favor of defendants (as in Bendectin), defendants negotiated settlements with a leading plaintiff attorney and other plaintiff law firms proved not ready or not up for the challenge of pursuing the litigation (as in Copper-7),86 appellate courts vacated class action certification (penile implants, Felbatol), or MDL judges remanded cases back to district courts for individual treatment (latex gloves). One case, litigation alleging injuries due to electro-magnetic radiation, never really got started (although in the early 1990s some analysts thought it might be "the next mass tort"), and litigation alleging injuries due to swine flu vaccine was preempted when the Congress adopted an administrative compensation program as the sole source of remedy. In sum, although the number of putative mass toxic torts grew in the 1990s, plaintiffs were not always successful in obtaining large-scale settlements; in some instances, the litigation devolved into more traditional individual litigation and in other instances it ended after suffering procedural, evidentiary or substantive legal defeats.

B. Mass Toxic Torts Present

Since 1999, there have been no attempts similar to Rand's and the FJC's to systematically identify significant mass toxic tort litigations and investigate their procedural characteristics or substantive outcomes. But a review of federal product liability filings and MDL activity suggests that mass product liability litigation is still very much alive.

From 1997-2005 (the last year of data available) federal civil filings generally and tort filings in particular have been quite volatile, rising and falling from year to year (see Figures 1 & 2). Over the entire nine year period, the total number of civil cases filed in federal courts annually decreased about five percent, but the number of tort filings was up almost twenty percent.

For federal product liability filings, however, the picture was dramatically different: they almost quadrupled over the nine-year period (see Figure 3, "all other products"). Whereas in past years, large numbers of asbestos cases inflated the total numbers of federal product liability cases filed annually, in this most recent period asbestos-related product filings followed a dramatically different course than other product liability cases.89 Because many product liability filings are not part of a mass litigation and because a large fraction of tort cases are filed in state courts (for which comparable data are not available), the substantial increase in product liability filings shown in Figure 3 does not offer direct evidence that mass toxic tort litigation is growing but it does suggest that the pool of cases from which mass toxic tort litigation arises is likely growing rather than shrinking.

MDL docket data and data on class action activity in product liability cases offer more direct evidence of trends in mass torts. If mass toxic tort litigation were collapsing, we might expect this to be reflected in a decreased number of motions for multi-districting or a decreased number of motions granted and cases consolidated and transferred. As noted previously, the number of motions for multidistricting filed in product liability cases increased dramatically in the 1990s, by comparison with the two previous decades. But the number filed in this decade has actually outpaced the number of MDL motions filed during the 1990s (see Figure 4).91

Moreover, the Judicial Panel on Multi-Districting granted a larger fraction of motions in product liability cases in the 2000s than in the past,93 with the result that more product liability cases have been consolidated and transferred under the multi-district statute in the past seven years than in the entire previous decade (see Figures 5 & 6).

Studies by the Federal Judicial Center suggest that mass tort class action activity may have continued as well, at least through 2005. In a study conducted after the U.S. Supreme Court handed down its decisions in Amchem and Ortiz,95 which were widely thought to sound the death knell for mass tort class actions, Willging and Niemic found that the number of annual mass tort (personal injury and property damage) class action filings in the federal courts declined in the year the Court handed down its decision in Amchem but increased after Ortiz was decided. By 2001 the number of mass tort class action filings had almost doubled, by comparison with the year Amchem was decided.96 More recently, in a study of the effects of the Class Action Fairness Act (CAFA), Willging and Lee reported that the number of annual federal class action filings in mass tort cases (personal injury and property damage) had remained about the same from 2001 through 2005.97

The idea that mass toxic tort litigation has collapsed-or at least retreated from its "Wild West" days98-appears in part to have been stimulated by a sharp decline in asbestos lawsuits since 2002 (see Figure 7). But the dynamics of asbestos litigation in the past decade have more to do with its special characteristics-a mass private and public regulatory failure resulting in millions of workers exposed to an injurious product over a long period of time, a pool of potential defendants numbering in the thousands, a judiciary so concerned about resolving the litigation that it was willing to adopt unconventional strategies that had the unintended consequence of attracting more litigation, and a multi-year effort first to resolve the litigation through a class action that would bind future claimants and then, when that failed, an effort to pass federal legislation that would have removed asbestos claims from the courts entirely99-than with the dynamics of mass toxic torts generally.100 And the apparent collapse of silica injury litigation in the face of evidence of widespread fraud,101 often cited as another sign of the demise of mass toxic torts, has more to do with asbestos litigation than with mass toxic torts generally.102

In her December 2006 American Lawyer article, Frankel identified five recent mass personal injury litigations in addition to asbestos and silica in support of her argument that the "Wild West era" of mass tort litigation is over: Baycol, Meridia, Prempro, Rezulin, and Vioxx.104 In an article published the previous year headlined "A Line in the Sand," she discussed litigation over PPA in support of the same proposition.105 All of these litigations arose in the late 1990s or early 2000s. But Frankel did not discuss other mass personal injury litigation that was contemporaneous with the litigations she highlights, such as litigation arising out of the use of Ephedra, Guidant heart defibrillators, the Sulzer Inter-Op hip implant, and Zyprexa,106 all of which have been multi-districted.107

Table 2 summarizes key features of these mass toxic torts of the 2000s. Taken together they present a more mixed picture than Frankel suggests, arguably one that is consistent with the picture of mass torts in the 1980s and 1990s, rather than a sharp departure from that time period.

Two of the cases, Meridia and Rezulin, failed to take off as mass torts, in both instances after federal MDL transferee judges excluded key plaintiff expert testimony on causation and dismissed the claims before them on summary judgment.139 The PPA litigation yielded mixed outcomes. All of the major defendants-American Home Products, Bayer, Bristol-Meyers Squibb, and Novartis-adopted a "no global settlement strategy" and the litigation against all these companies appears to have dissipated. In June 2006, Bayer reported paying $53 Million to settle 349 PPA cases with 160 still pending against it. Novartis reported having settled all PPA cases against it in 2007; the total cost has not been reported but a defense lawyer whom Frankel interviewed asserted that the amounts paid were small. "Plaintiffs are coming in droves .... They're settling in packages for peanuts."140 Assuming the potential exposure in PPA litigation was huge, this mix of outcomes would seem to reflect a plaintiff attorney defeat. Three other cases, Baycol, and Sulzer Hip Implants, and Zyprexa have resulted in huge damage pay-outs. The Bayer Corporation has paid more than $1 billion to date to resolve litigation arising out of the use of Baycol. The Baycol litigation is widely viewed as a success for Bayer because their potential liability exposure was much greater.141 The conventional wisdom is that it was Bayer's refusal to negotiate a single "global settlement" that enabled Bayer to fend off many non-meritorious claims that would have driven the price of resolution much higher. Still, a $1 billion price tag for a defendant in product liability litigation arguably does not signify a massive defeat for plaintiff attorneys. Sulzer similarly paid about $1 billion to resolve litigation against it resulting from defective hip implants; it did agree to resolve the litigation in a class action settlement.142 Lilly resolved the Zyprexa litigation in what appear to be coordinated inventory settlements with fourteen plaintiff attorney firms, for a total of over $1 billion.143

Four of the cases are ongoing, and in at least three of these-Guidant, Prempro, and Vioxx-the ultimate outcomes are still uncertain. In the Ephedra litigation, many manufacturers have filed for Chapter 11 reorganization, preferring to resolve claims against them in bankruptcy proceedings. To date, plaintiffs have won at least $100 million in a series of aggregate settlements.144 The multidistrict litigation continues, with plaintiffs and defendants both having scored victories regarding admissibility of evidence,145 and litigation appears still to be ongoing in some state courts as well. The Guidant litigation, which comprises securities fraud litigation, shareholder derivative suits and consumer fraud cases as well as personal injury lawsuits-all of which were multi-districted and transferred to Judge Donovan Frank in the District of Minnesota in 2005146-has not yet progressed sufficiently to discern its outcomes. Some observers predict that as many as 5000 personal injury claims may eventually be filed against Guidant.147 Wyeth, having had the experience in the fen-phen litigation of a "global settlement" unraveling and resulting in an ultimate payout several times its original estimate,148 has adopted a "no global settlement" strategy in the Prempro litigation. As of August 18, 2006, Wyeth was reported to have 5000 Prempro cases pending against it. About 1800 are said to have been filed in the Philadelphia Court of Common Pleas.149 Through February 21 2007, juries had found for Wyeth in two cases and for plaintiffs in two cases; a Texas judge dismissed one complaint on summary judgment.150 In February 2007, a Philadelphia jury awarded $3 million in damages to a woman alleging her breast cancer was caused by Prempro, 51 suggesting the price of settling these cases ultimately may prove substantial. Merck, which many plaintiff and defense attorneys point to as having switched the course of mass tort litigation from settlement seeking to aggressive litigation, has had mixed success with its Vioxx litigation strategy so far. As of March 2007, Merck had won 10 trials (including some in so-called "plaintiff friendly" venues), lost five trials, and two cases had ended in mistrials.152 Through December 2006, Merck had reserved $858 million to cover Vioxx litigation.153 But its costs to defend the cases were reported to be approximately $1 million per day.154

C. The Past-Accurately Assessed-May Be a Good Predictor of the Future

Comparing recent mass toxic tort litigation to past history, I conclude that the "Wild West era" of mass tort litigation is more myth than reality: huge monetary settlements were rarely, if ever, easy pickings and global settlements sometimes really did serve defendants' interests well. A few litigations arising out of pharmaceutical products, medical devices or toxic exposure have produced billion dollar (or more) settlements: asbestos, Baycol, Dalkon Shield, Fen-Phen, Silicone Gel Breast Implants, Sulzer Hip Implants, and Zyprexa. But the billions paid out in asbestos are the result of a substantial public health catastrophe and accrued over more than three decades of litigation, and the settlements in the Dalkon Shield, Silicone Gel Breast Implant and Baycol litigation paid out far less than was once estimated as the cost of injuries associated with these products. The Sulzer Hip Implant settlement was perceived as saving the defendant from bankruptcy, and in Zyprexa, Lilly appears to have been seeking inventory settlements with plaintiff attorneys, rather than trying to avoid them. Only the fen-phen outcomes stand as a lesson in a runaway global settlement.

The "Wild West era" of asbestos litigation-the late 1990s and early 2000s-when non-impaired claims flooded the courts, now looks like an artifact of the aftermath of the failed global class action settlements that gave rise to Amchem and Ortiz and efforts of asbestos plaintiff attorneys and their clients to "get in under the wire" before Congress passed legislation removing asbestos injury claims from the courts. The Dalkon Shield and Silicone Gel Breast Implant litigations were creatures of the 1980s and 1990s (before the asbestos litigation explosion) but the Zyprexa litigation is today's story. Mass toxic tort litigation in the past and now is a mix of cases that fail to take off as mass torts, cases that are pursued and settled in aggregate form but for less than mega-amounts, and cases that impose significant costs on defendant corporations and allow mass tort plaintiff firms to take sizeable bundles of money to the bank.

Class actions, the "Frankenstein monster"155 of mass tort nightmares, have played only a modest role in toxic tort litigation, and then most often when defendants themselves sought to use the class action device to reach closure. If, as many have argued, obtaining class certification of mass torts has become more difficult-recall that class certification was considered inappropriate for mass torts until well into the 1990s-the record to date suggests that its relative unavailability will not preclude mass toxic torts from succeeding in the future.

IV. THE FUTURE OF MASS TOXIC TORT LITIGATION

Nascent mass torts may not be reflected in class action filings and multi-districting activities and some mass tort practitioners prefer state courts, for which detailed filing data are not available, to federal courts.156 Current JPMDL activity may give us a hint of the future, but may not reflect the variety of cases that plaintiff attorneys are seeking to shape into the mass torts of the future. The Web is a rich (although flawed) source of information on possible as well as current mass toxic torts. Information is provided by websites sponsored by plaintiff and defense law firms seeking clients, and by on-line media.157 Although most sites present lawyer-generated content, on some, consumers with real or imagined injuries chat with each other about products, their manufacturers, and lawyers.158 Many of these sites offer links to other relevant sites. In addition, "litigation groups" sponsored by the American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA), indicate the cases in which plaintiff attorneys are investing their resources.159 Product liability litigation reporters published by Mealey signal that there is a sufficiently large number of law firms interested in monitoring litigation developments to justify a report.160

Table 3 lists the products for which I found indicators that mass litigation was either already in progress or that plaintiff attorneys were attempting to develop.161 The information in Table 3 suggests that mass tort practice remains vibrant; firms of all sizes, with national, regional and local orientations are all seeking plaintiff clients for mass tort litigation or corporate clients to defend against these.

Yet mass toxic tort practice is changing. One striking change is the number of plaintiff law firms now engaged in mass toxic tort litigation. When Peterson and I conducted our first study of mass toxic torts in the early 1990s, we could name at most a dozen plaintiff law firms that dominated the field, firms that had been involved in all or most of the major catastrophic injury, product defect and toxic exposure litigation of the 1980s. A systematic census of plaintiff firms actively engaged in mass tort practice today was beyond the scope of this project, but my review of case materials and on-line sources suggests that dozens of plaintiff firms have played at least some role in recent mass toxic torts-and scores more are seeking to do so in the future. On the defense side as well, the number of firms representing corporate clients in mass toxic tort litigation seems to have grown. As one lawyer I interviewed put it, mass tort defense work has become "commodified": firms compete for mass tort defense business and in at least some instances the work goes to lower-priced regional (and smaller) firms rather than to the national powerhouse firms that once dominated the mass tort litigation market.

The procedural progress of recent mass toxic torts suggests that judges may be changing their practices regarding this litigation as well. The post-Daubert era has given rise to stricter evidentiary decisions resulting in dismissals on summary judgment in some well-publicized cases. Over time, judges who once thought the sole way of clearing their dockets of mass tort cases was to press for global settlement may be learning that summary judgment and dismissals offer another-sometimes more appropriate-avenue for resolving mass claims. The routinization of federal-state coordination of mass tort litigation management-nowhere provided for in federal or state procedural rules-is eliminating or diminishing the leverage mass tort plaintiff attorneys could sometimes apply to nationwide federal litigation by obtaining favorable pretrial rulings or jury verdicts in state courts. The Class Action Fairness Act (CAFA) has made it less likely that mass tort plaintiff attorneys can achieve in state court nationwide class action certifications that defendants oppose. Pharmaceutical and medical device manufacturers have also been more successful in the past few years in using FDA approval of products and product labeling to preempt negligence claims.162

Together, these changes in the composition of the mass tort plaintiff and defense bars, judicial practices, and substantive law, appear to be diminishing the risk that mass toxic tort litigation poses for corporate defendants. Fewer cases appear to present "bet the company" risks, and fewer cases seemingly are perceived by defendants to present such risks. As Frankel argued, the mass toxic tort litigation playing field seems to be shifting back in the defendants' favor.

However, other changes in litigation dynamics may not favor defendants. Although defendants may be able more frequently to cabin the scale of mass personal injury and wrongful death litigation, the litigation has grown more tentacles. For example, Guidant (and its new parent Boston Scientific Corporation) not only faces personal injury litigation but also is the target of private securities litigation, ERISA litigation, and state attorneys' general litigation, all arising out of questions that have been raised about the marketing of its products.163 Merck faces similar litigation arising out of the Vioxx product recall and personal injury litigation.164 The federal MDL transferee judge declined to certify a class of injured plaintiffs in the Baycol litigation, but a state judge in the Philadelphia Court of Common Pleas certified a nationwide class action on behalf of "third party payors," public and private entities that sought reimbursement for the cost of the drugs that they had paid on behalf of their beneficiaries.165 When defendants do successfully head off largescale litigation through aggressive litigation, the price may be large verdicts in a few strong cases,166 which re-draw attention to the defendant's allegedly flawed product or questionable quality control or marketing practices. With the opportunities for huge gains from toxic tort litigation somewhat diminished, the powerhouse plaintiff firms that built the mass litigation system may turn their big guns elsewhere, towards other legal domains or even other legal systems.167 But smaller piecemeal settlements (such as those achieved to date in the Ephedra litigation168) may attract smaller law firms that find it increasingly uneconomical to litigate individual product liability suits, with the possible result that defendants will find themselves dealing with a cloud of angry gnats rather than a few giant killers. And in protracted litigation, the cost of sustained warfare may ultimately loom large, raising questions about the merits of a "no-settlement" strategy.

While the music has changed a bit, the fat lady hasn't sung yet. And this opera likely still has many acts to come.

[Author Affiliation]

Deborah R. Hensler*

[Author Affiliation]

* Judge John W. Ford Professor of Dispute Resolution, Stanford Law School.

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