Mass Torts in a World of Settlement

By Richard A. Nagareda | Go to book overview

INTRODUCTION

When lawyers first encounter the subject of torts in law school, the cases they study typically involve bizarre, idiosyncratic events. The word “tort” derives from the Latin torquere, meaning to twist. A tort literally involves a twisting—an injuring—of another that the law empowers the injured person to straighten out by way of a lawsuit.1 In one famous case read by generations of lawyers, a passenger attempts to board a moving train. A railway employee comes forward to assist but knocks a package that happens to contain fireworks from the passenger's arms. An explosion results, dislodging from the other end of the railway platform some heavy scales that fall and injure Helen Palsgraf.2 In another tort classic, George Kendall raises a stick in an effort to separate two fighting dogs and inadvertently pokes the eye of George Brown, a bystander.3 In a third case, waitress Gladys Escola suffers lacerations to her hand from an exploding Coca-Cola bottle.4 These are the stories that have long introduced new lawyers to the law of torts.

The settings of these cases are extraordinary. But their essential structure is both simple and typical of tort litigation as traditionally conceived. A single, identified plaintiff with some sort of physical impairment sues the specific defendant she believes to have wrongfully caused that malady. “Mass torts” diverge from traditional tort litigation, grounded in what Oliver Wendell Holmes described as “isolated, ungeneralized wrongs.”5 The mass tort phenomenon is all too familiar in recent decades, not only to lawyers but also to the public at large. Examples include the claims of industrial workers who inhaled high concentrations of asbestos fibers on the job; soldiers exposed to Agent Orange during the Vietnam War; women who received silicone gel breast implants; dieters who consumed the drug

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