Academic journal article The Review of Litigation

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

Academic journal article The Review of Litigation

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

Article excerpt


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. …

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