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Class Actions and Mass Tort Litigation Aggregative Justice in a


									Class Actions and Mass Tort Litigation:
Aggregative Justice in a Global Context

     Professor Linda S. Mullenix
      University of Trento, Italy
 Introduction to Mass Tort Litigation

 What is a mass tort litigation?
 What are the characteristics of mass tort
 When did mass tort litigation first develop as
  a litigation problem?
 Why do mass torts present a problem for the
  judicial system?
 What are the problems of mass tort litigation?
 What possible solutions?
The Paradigmatic Original Mass Torts

 Dalkon Shield Litigation
     Morton Mintz, At Any Cost: Corporate Greed,
      Women, and the Dalkon Shield (1985)
 Asbestos Litigation
     Paul Brodeur, Outrageous Misconduct: The
      Asbestos Industry on Trial (1985)
 Agent Orange Litigation
     Peter Schuck, Agent Orange on Trial: Mass
      Toxic Disasters in the Courts (1986)
Other Mass Torts since 1980s
 Pharmaceuticals (drugs):
     DES (pregancy drugs)
    Bendectin (thalidomide)(pregnancy drug
    Phen-fen (diet drugs)
    Baycol (statins for cholesterol)
    Vioxx (joint pain)
 Medical Devices:
    Breast implants
    Pacemaker leads
    Hip replacements
 Environmental pollution:
    Three Mile Island nuclear disaster
    Love Canal pollution
 Structural building collapses
Characteristics of Mass Tort Litigation

 Product involved?
 Defendant?
 Time period?
 Type of injury?
 Nature of Claimants (users)?
 Number of Potential Claimants?
 Location of Claimants?
 Problems with litigation? Defenses?
 Method of resolution?
Dalkon Shield: Characteristics as a Mass Tort

  Product involved?
     IUD (contraceptive medical device)
  Defendant?
     A.H. Robins (manufacturer; only defendant)
  Time period?
     1971 (on market) to mid-1970s (off market)
     U.S. sales halted in 1974
     Finite pool of claimants
  Type of injury?
     PID (pelvic inflammatory disease/death/sterility)
     No latent or longterm injury
Dalkon Shield: Characteristics as a Mass Tort

 Nature of Claimants (users)?
    all women
 Number of Potential Claimants?
    4.5 million in 80 countries
    2.86 million in U.S.
           15,000 lawsuits filed by 1985
           Estimates of 90,000 injured women
      1.7 million abroad
Dalkon Shield: Characteristics as a Mass Tort

   Location of Claimants?
      All over the world
      Dispersed throughout United States

   Problems with litigation? Defenses?
      Defense strategy: aggressive investigation of women
       claimants’ personal lives
      Strategy to have women drop lawsuits

   Method of resolution?
     A.H. Robins bankruptcy
Asbestos: Characteristics as a Mass Tort

 Product involved?
    Asbestos insulation products

 Defendant?
    Multiple defendants
    Asbestos miners
    Asbestos manufacturers (40-50 companies)

 Time period?
    Early 20th century forward (decades)/focus on 1940s
     through 1990s
Asbestos: Characteristics as a Mass Tort

 Type of injury?
    Asbestos exposure diseases (at least six types):
       Lung cancers

       Asbestosis

       mesothelioma

    Both current illness and latent long-term injury

 Nature of Claimants (users)?
    Refinery workers
    Shipyard workers
    Any industrial worker exposed to asbestos
    School buildings
Asbestos: Characteristics as a Mass Tort

 Number of Potential Claimants?
    1970s-1980: 50,000 claimants
    1990s: 0ver 100,000 claimants
    2007: hundreds of thousands of claimants

 Location of Claimants?
    Throughout U.S. (every state)

 Problems with litigation? Defenses?
    All defenses eventually fail

 Method of resolution?
   Bankrupcty; class litigation; group settlements
Agent Orange: Characteristics as a Mass Tort

  Product involved?
     “Agent Orange” herbicide defoliant
     Used during Vietnam War

  Defendant?
     Dow Chemical Company; seven corporate defendants
     United States government

  Time period?
     Vietnam War (1960s through 1974)
     First lawsuit, 1978
Agent Orange: Characteristics as a Mass Tort

 Type of injury?
    Various diseases; “Agent Orange” syndrome
    Cancers, birth defects, genetic defects
 Nature of Claimants (users)?
    Vietnam War veterans (2.4 million veterans)
    Wives (spouses) of Vietnam veterans
    Children of Vietnam veterans
    15,000 claimants in 600 actions filed 1970s-1980s
 Number of Potential Claimants?
    Finite?
    Expanded?
Agent Orange: Characteristics as a Mass Tort

   Location of Claimants?
      Throughout U.S., New Zealand, Australia

   Problems with litigation? Defenses?
      Government sovereign immunity
      Corporate military contractor defense
      Weak science to show causal link to illness

   Method of resolution?
     Class action settlement
     Agent Orange Fund

 What similarities exist among these three
  seminal or original mass tort litigations?
 What differences are there among these
  three examples?
 Is bankrupcty an appropriate method for a
  defendant to resolve mass tort liability?
 Is there a “paradigm” mass tort litigation?
Additional Mass Tort Litigation Concepts

 Distinction between “mass accident” and
  “mass tort” litigation
 Mass accident cases:
     Single site
     Single event
     Small numbers of claimants (few hundred at
     Easy to resolve
     Examples: airplane crashes, train wrecks;
      building collapses
Additional Mass Tort Litigation Concepts

 Mass Tort Cases:
     Geographic dispersion (claimants in multiple
      places or jurisdictions)
     Temporal dispersion (multiple claimants over
      long time periods)
     Very large numbers of claimants (thousands,
      hundreds of thousands, millions)
     Complex scientific and causation issues
     Examples: asbestos, drugs, medical devices
Additional Mass Tort Litigation Concepts

 Concept of Life-Cycle of Mass Tort Litigation:
 Nascent or immature mass tort litigation
    Litigation may or may not turn into a mass tort
 Evolving mass tort litigation
    Increasing cases filed
    Plaintiffs win more victories; defendants lose
    Courts aggregate cases
 Mature mass tort litigation
    Defendants lose most cases
    Scientific evidence is mature
    Settlement values established through verdicts or toher
Problems with Complex Mass Torts

 Large numbers of individual cases clog courts
 Repeat litigation of common issues (duplicative
 Great expense factor in litigating dispersed claims in
  many different forums
 Inefficient use of resources
      Attorneys, corporate officers, judicial officers
 Inconsistent judgments from multiple courts
 Delay of justice for persons in need of compensation
 Brings judicial system into disrepute
Working Definitions of Mass Torts

 American Law Institute (1991):
 Salient defining characteristics of a mass
  (1) Numerous victims who have filed or might
      file damage claims against the same
  (2) Claims arising from a single event or
      transaction, or from a series of similar events
      or transactions spread over time;
Working Definitions of Mass Torts

  (3) Questions of law and fact that are complex
      and expensive to litigate and adjudicate –
      frequently questions that are scientific and
      technological in nature;
  (4) Important issues of law and fact which are
      identical or common to all or substantial
      subgroups of the claims;
  (5) Injuries that are widely dispersed over time,
      territory, and jurisdiction;
Working Definitions of Mass Torts

  (6) Causal indeterminacy – especially in cases
      involving toxic substance exposure– that
      precludes use of conventional procedures to
      determine and standards to measure any
      causal connection between the plaintiff’s
      injury and the defendant’s tortious conduct;
  (7) Disease and other injuries from long delayed
      latent risks, especially in cases involving
      toxic substance exposure

 How is this paradigm of mass tort litigation
  different than “ordinary” litigation?
 What is the traditional model of Anglo-
  American litigation?
 What is a bi-polar lawsuit?
 What is the “public interest law” model?
 Is mass tort litigation a new kind of “public
  interest law”?
Litigation Models

 Abram Chayes, The Role of the Judge in
  Public Law Litigation, Harv. L. Rev. (1976)
 Description of traditional civil case:
  (1)    Lawsuit is bipolar;
  (2)    Litigation is retrospective
  (3)    Right and remedy are interdependent
  (4)    Lawsuit is self-contained episode
  (5)    Process is party-initiated and party-
Litigation Models

 Prof. Chayes description of new public law
  (1) Process is sprawling and amorphous
  (2) Litigation subject to change over course of
  (3) Process is suffused and intermixed with
      negotiating and mediating
  (4) Judge is dominant figure ir organizing and
      guiding the case
  (5) Ongoing judicial involvement in remedies
Final Question

 Is mass tort litigation the “public interest” law
 of the late twentieth and twenty-first

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