It seems that about once each year, a product with widespread
national use suddenly appears to be more harmful than helpful. That,
of course, usually breeds a plethora of lawsuits across the country.
The latest mass tort is the diet drug regimen known as Fen/phen,
combination of drugs that in some instances apparently can produce
very serious heart and lung problems. This situation has spawned
thousands of suits across the country. It will follow, I believe, a
predictable pattern based on the history of such events.
In the last decade we have had asbestos, breast implants,
Norplant, pedicle screws, J-wires, and the grand daddy of all mass
torts -- tobacco -- to name a few. Due to the multiplicity of these
cases, which frequently number in the hundreds of thousands, the
federal courts have developed a way to minimize the impact of these
cases on the court system. The primary vehicle is multi-district
litigation (MDL). This procedure requires that one federal judge be
appointed to oversee all federal cases in the country.
Cases filed in Oklahoma and all other federal courts are literally
transferred, file folder and all contents, to the supervising judge.
The judge then appoints a group of lawyers to the plaintiffs and
defendants steering committees. These committees usually consist of
the leading plaintiff's lawyers who were first active in the cases
and the defense lawyers representing the manufacturers.
These lawyers are responsible for all discovery. They depose
defendant officers, employees, and experts, and obtain all defense
studies and documents. At the conclusion of all discovery, the
evidence is made available to all plaintiffs' lawyers for use in
their individual cases when they are returned to the original
This evidence is usually admitted by the MDL judge, and may be
introduced in individual cases merely by identification as MDL
discovery items. Another vehicle for mass cases is the class action,
which may require an article of its own. Recent federal court
decisions have made it much more difficult to obtain national class
certification. More often federal judges are finding that
commonality of all necessary issues are rarely present.
Therefore, the most prevalent current use of class action suits is
for settlement purposes. Often a primary goal of the MDL steering
committee is to effect a national settlement. If terms can be agreed
on, a settlement class can be certified. …