TAMING THE MASS TORT MONSTER

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    TAMING     THE MASS TORT
              MONSTER




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             MARTI[N F. CONNOR




                Daren Bakst
                Mark G. Ellis
                  Editors
                              PREFACE
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        On the turn of a dime, a prosperousbusinesscan find itself choosing
     between bankruptcy protection or settling a meritless tort claim.
     American consumersmust be protected from harmful products and
     compensatedsufficiently when the situation warrants such a result.
     Unfortunately, however, our civil justice system has been so skewed
     against defendantsthat only ambitious personal injury attorneys are
     being served, not the interests of justice. Mass torts, referring to
     incidents that,leadto multiple personalinjury claims, are the “golden
     geese” for the plaintiffs’ bar. A masstort systemmust be developed
     that adequatelyprotectsconsumerswith valid claims while placing the
     fair amount of liability on defendants.This desirable systemmight be
     a long way off, however, as contingent-fee lawyers fight hard in the
     political arenato maintain the status quo.
            In this issue of BRIEFLY. . ., author Martin Connor offers a
     practitioner’s analysis and perspective of the mass tort scenewhile
     also identifying new approaches to reforming the system. The
     monographarticulatesthe importancepolitics plays in maintaining the
     status quo. Contingent-fee lawyers arewell organizedandundeniably
c    have been successful in protecting the system that they desperately
     want to maintain. While tort reform has been important to many
     national companiesand organizations,there are but limited resources
     being expended in this fight. To further exacerbate the problem,
     popular culture often makesthe plaintiffs’ bar look like the champion
     of good while businessis the greedy and unfeeling “bad guy,” content
    to play the role of Goliath. As the author details throughout the
    monograph, the mass tort system is deeply flawed and only new
    solutions will fix the problems.
        This monograph, like all others published by the National Legal
    Center, is presentedto encouragegreater understanding of a legal
    issue.It is not intendedto influence current or potential legislation but
    to enlighten its readersthrough the thought, experience, and know-
    ledge of others. The views expressedin this monograph are those of
    the author and do not necessarilyreflect the opinion of the advisors,
    officers, or directors of the National Legal Center. The publication is
    presentedpurely as an educational public service.
                                          r
c                                             Ernest B. Hueter, President
                                              National Legal Center
                          TABLE OF CONTENTS

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    PREFACE
    ERNEST B. HUETER . . . . . , . . . . , . . . . . . . . . Inside Front Cover

    TAMING THE MASS TORT MONSTER
    MARTIN F. CONNOR

    INTRODUCTION........................................                         1
    THE MASS TORT MONSTER ...............................                        3
        The Coming of the Monster ...........................                    3
        Wherethe Monster Feeds ............................                      6
        TheJudicial Response...............................                      8
    THE MASS TORT INDUSTRY .............................       10
        Mass Tort Lawyers: From Cowboy to Organization Man . . 10
        Media-Manufactured h4assTorts .....................    12
        Selling the MmssTort. ..............................                    13
        The Heart of the Matter .............................                   14
        The k&s Tort Political Machine .....................                    15
        How the Public ViewsMass Torts .....................                    17
    SEARCHWGFORSOLUTIONS.............................                           18
L       Mass Torts and the Scholars .........................                   18
        Mass Torts and the Lobbyists ........................                   20
           Punitive DamagesReform .......................                       21
           Class Action Reform ............................                     23
        The Banknrptcy Alternative ..........................                   28
    NEW DIRECTIONSFORMASS TORT REFORM ................                          28
        Preliminary Comments .............................                      28
        Fix the AsbestosLitigation ..........................                   31
        Correct the Risk/Reward Imbalance ...................                   35
        Make Regulatory Compliance Matter ..................                    40
    CONCLUSION ........................................                         45
    A PERSONALEPILOGUE .. *...i .........................                      46

    ABOUT THE AUTHOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

    THE MISSION OF THl3
    NATIONAL LEGAL CENTER . . . . . . . . . . . Inside Back Cover

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             TAMING              THE MASS TORT
L                               MONSTER
                              MARTIN F. CONNOR




       This issue of Briefly addressesthe mass tort phenomenon that
    bedevils American industry. Its message, in a nutshell, is that all
    aspectsof this problem have beenstudied and debatedadnauseamfor
    two decadesbut precious little has been done to improve the situation
    in which defendantsfind themselves.Federal class action rules have
    beentweaked. There have beenrandomly enacted,and mostly ineffec-
    tive, state limitations on punitive damageawards. There has been no
    organizedeffort to addressthe problem that lies at the root of the mass
    tort explosion: a perverse risk/reward system that extravagantly
    compensatesentrepreneurial contingent-fee lawyers while forcing
    defendantsinto desperate“bet the company” scenarios.There hasbeen
    no organized effort to address the fact that, in the words of one
c   respected academic commentator, “compensation [of mass tort
    claimants] through the tort system is broken-seriously, irreparably,
    and incontrovertibly.”
       Everything comesdown ultimately, therefore, to the politics of mass
    tort reform. Champions of the status quo are now America’s most
    powerful special interest.’ Contingent-fee lawyers have no more
    important issue and are willing to makewhatever investmentis needed


        ‘It is both humorousand sadto hearAmerican corporationsroutinely damnedas
    “special interests.”(For a recent example, seeJudgeAbner Mikva’s Op-Ed in the
    N. I’. Timesof Aug. 30, 2000.) Theseorganizationsare, after all, the basic building
    blocks of our economy. Their ultimate “interest” is their own and our national
                               is
    prosperity.Their success a good thing for American citizens, consumers,      workers
    and investors.They do, of course,occasionallyget things wrong, either by chance,
                                               or,
    innocentmistake, culpablecarelessness in the worst cases,                    This
                                                                  recklessness. is,
    after ail, to be expected;it is not companiesthat make decisions,but fallible human
    beings.The demonimtion of business,      however,hasbeenthe work of the true special
    interests,notably contingent-fee lawyers and consumerists,   who have little trouble
    equating their own self-interest (whether its rewards come in cash or in ego-
c   gratification) with the public interest.

                                                                                     1
        TAMING THE MASS TORT MONSTER

        of time and money. They are superbly organized. They have been
c       particularly alert to the fact that tort reform begins, and must therefore
        be headedoff, at the ballot box. They have also learnedthat a friendly
         statejudiciary trumps the legislature every time.
           Those who should be advocating change,on the other hand, face a
        dizzying array of issues:taxes, trade, telecommunications,healthcare,
        employment, the environment, and so on. Mass tort reform, or any
        kind of tort reform, is seldom high on a company’s public affairs
        agenda, despite its lawyers’ urging. Tort reform, for national com-
        panies and the national trade associationsand advocacy groups they
        sponsor, generally has consisted of unplanned reactions to locally
        createdopportunities. Modest resourceshave beenspreadover far too
        many bases,usually without long-term commitment. There has been
        reluctance in many quartersto becomeinvolved in judicial or legisla-
        tive elections in order to advance the tort reform cause. It is no
        exaggeration,then, to say that since a string of legislative successes  in
        the late 198Os,during the so-called “insurance crisis” of that period,
        there has been more “sound and fury” than effective action.
           What follows is no attempt to add to the masstort “literature.” There
        will be no pretensehere at legal scholarship. This is a public affairs
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        practitioner’s survey and assessmentof the mass tort scene and
        preliminary sketch of new directions in which an effective mass-tort
        reform program might move. Whatever merit the specific suggestions
        may have, the underlying messageis that nothing will changewithout
        commitment to a long-term program that is very tightly targeted at
        reshapingcurrent mechanismsfor compensatingindividuals injured by
        mass-marketedproducts. The emphasis, moreover, must be on new
        directions. Neither the traditional tort reform agendanor the scattershot
        approachto its implementation has beenequal to;the challenge of the
        Mass Tort Monster.
           Lest there be any misunderstanding,it must also be emphasizedat
        the outset that the merits of any particular mass tort claim, past or
        pending, are not at issue here. Claims must be judged on their facts.
        Some mass tort claims will have merit; others will not. Deserving
        individuals should be fully and fairly compensated.What is at issue
        here is aprocess for masstort claims resolution that is, in very basic
        respects,corrupt.

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        2
                                                                       F.
                                                                  MARTIN CONNOR

                                THE MASSTORTMONSTER

        The Coming of the Monster

            The explosion of mass personal injury claims that began in the
         1980sand continues unabatedto this day was a byproduct of the mass
        marketing of consumerproducts that startedperhapswith Henry Ford
        but took off in the” 1950s and 1960s with the advent of television
        advertising. An unsafe product, once introduced into a massmarket,
        can harm countless consumersover a long period of time. Mass tort
        claiming was inevitable.
            What was not inevitable was the litigation debaclethat followed. It
        has beena product, pure and simple, ofjudicial and legislative inertia,
        aided and abetted by a sensation-seekingmedia and a financially
        motivated contingent-fee bar.
            What are sometimes referred to as “dispersed” mass tort actions
        involve multiple occurrences, over an extended period of time, of
        personal injuries that have a common cause. They typically allege
        harms causedby unreasonablydangerousproducts or environmental
L       contaminants. They entail an indefinite and perhaps indeterminable
        number of individual claims for a variety of injuries, ranging from
        trilling to fatal or, with increasing frequency, simply a concern that
        such injuries will occur in the future. Causationis always an issue:(1)
        whether the product or substanceis harmful at all and, if so, what
        harms it may cause (general causation); (2) whether, given general
        causation, a particular claimant’s injury is attributable to the product
        or substance.  (specific or individual causation). These are the “mass
        tort actions” we are concernedwith here.*
            Despite similarities, there is a difference between “single-accident
        masstorts” and “dispersed masstorts.” The former arise from single
        events,like explosions, building collapses,catastrophicfires, oil spills
        or plane crashes.They involve a known number of claimants who are
        injured or killed within a short time in a common accident having a
        single, determinablecause.They seldom involve complex legal issues.
        The buccaneersof the plaintiffs’ bar race to every disaster site. There.
    !

          “The shorthandexpression “masstort” will be usedhereto refer to dispersedmass
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        personal-injuryclaims asopposedto single-accidentand economic-damages    claims.

                                                                                     3
    TAMING THE MASS TORT MONSTER

    is plunder to be had. But mass accident litigation is rarely the
    bankruptcy-threatening extravaganzathat dispersedmasstort actions
    are.
       As is the casewith so many common law developments,it is hard
    to pinpoint the precise moment at which the Mass Tort Monster
    appearedon the scene.And it is certainly difficult to predict whether,
    or when, the Monster will ever be tamed.
       The first truly noteworthy mass tort litigation was the fifteen
    hundred or so MER/29 cases brought against the Wm. Merrell
    Company in the 1960s. The King Kong of mass tort litigation,
    asbestos,was born in the mid-1970s and continues to grow. It was
    accompanied by another notorious Monster of the period, Agent
    Orange. But it is also noteworthy, as Mark Hermamr has pointed out,
    that no lawsuits followed the 1977 FDA ban on saccharin despite a
    host of media scarestories. ‘No lawsuits were filed seekingto recover
    for bladder cancer caused by saccharin. Zero lawsuits were filed
    seeking medical monitoring expenses.Zero lawsuits were filed to
    recover for plaintiffs’ fears that they might get sick in the future.” Ah,
    how times have changed!It is easy to imagine the litigation imbroglio
L   that will follow a saccharinban today.
       In the 198Os, with the experiencegained in the asbestoscases,and
    funded in part by the huge fees garneredthere, the contingent-fee bar
    embarkedon mass tort litigation on a grand scale. A random sample
    of high-profile, mass-tort cases since then might include DDT,
    Bendectin, DES, swine flu vaccine, Copper-7, PCBs, the Dalkon
    Shield, Shiley heart valves, heart catheters, pickup-truck fuel tanks,
                                                         .
    blood products, silicone breast implants, pedrcle screws, penile
    implants, intraocular lenses, tobacco products, lead pigment, latex,
    dietary supplements, fen-phen, Rezulin, L-tryptophan, Duract,
    Parlodel, Synthroid, Propulsid and so forth almost ad injinitum.
       The most recent mass tort action, at this writing, was brought on
    September18,2000, when plaintiffs’ lawyers filsedsuits in California
    and New Jersey, alleging that Ritalin’s maker, Novartis, conspired
    with the American Psychiatric Association to create a disease,
    Attention Deficit Disorder, and to hype Ritalin as its remedy. (Ritalin


       ‘Mark Hemann, From Saccharinto BreastImplants: Mass Torts, Thenand Now,
c   LITIGATION 50 (Fall 1999).

    4
                                                       MARTINF.CONNOR


c   has been used in the treatment of millions of patients for over 40
    years.) The casesseekbillions of dollars in damagesand, according to
    the lawyers, will be followed by suits on behalf of consumersin other
    states. The lawyers are led by Richard Scruggs of Pascagoula,
    Mississippi, notorious for helping negotiatethe 1998tobacco industry
    settlementwhile earning his law firm an estimated$1 billion fee. Other
    lawyers involved in the Ritalin suits are members of the “Castano
    Group,” a network of plaintiffs’ lawyers who have filed suits against
    the tobacco industry on behalf of smokers.
       The mass tort de jour at this time, however, is the Bridgestone/
    Firestone AT/ATX radial tire affair. It plainly offers “the greatest
    happinessto the greatestnumber” of contingent-feetlawyers. The tire
    recall was announcedon August 9. Three weeks later, on August 3 1,
    the Wall Street Journal reported:

      Besides more than 100 suits for personal injuries, the recall is
      spawning a growing number of class-action suits, seeking to
      representmillions of Firestone-tire purchasers.The class-action
      lawyers say Firestone’s recall and tire-replacement policies don’t
t     go far enough to compensate consumers for the damage and
      inconveniencethey have suffered. Plaintiffs’ lawyers estimate20
      to 50 suits seekingclass-actionstatusagainstFirestonehave been
      tiled to date.Already, someplaintiffs’ lawyers haveapplied to the
      U.S. multidistrict-litigation WL] panel to consolidatethe cases;
      the judicial panel is expected to take up the issueat a hearing in
      November, and possibly sooner. The betting among lawyers is
      that the litigation will end up in federal court in Nashville,
      Tennessee,   near Firestone headquarters.

       This is the typical birthing of a Mass Tort Monster. The problem has
    been identified. The recall of 6.5 million tires is under way. The cost
    will be enormous.Bridgestone has lost half its market value. Whether
    its U.S. Firestone operation even has a future is unclear. The National
    Highway Traffic Safety Administration (NHTSA) and its regulatory
    processesare under intense congressionalscrutiny that undoubtedly
    will lead to an upgrading of incident reporting. The pressreports that
    a Texas lawsuit brought by the mother of a young woman killed when
    one of her Ford Explorer’s tires lost its tread was a prime factor in
c
c   bringing the problem to the public’s attention. If true, that is
    commendable.But nothing else that happensin the courts will make                       _
    tires safer or “send a message” (in the popular words of plaintiffs’
    lawyers) that Bridgestone and Ford have not already received. All that
    is guaranteedis that many lawyers will soonbe wealthier than they are
    today.4

        Wherethe Monster Feeds

         What feeds the Monster? Mass tort litigation has many sources.

    l    New technologies and materials have been aud will continue to be
         a primary source. Keep an eye particularly on the new biogenetic
         technologies. They promise great economia, environmental and
         health benefits but will also entail real or fancied health risks.
         Almost certainly they will be a breeding ground for future masstort
         litigation.
    l    Any new product that requires hazard and safety testing during its
         development is and ever will be a potential: subject of mass tort
c        litigation. There are practical and technical limits to hazard and
         safety testing. There are trade-offs that often must be made in
         designing a product. (Safety versus fuel economy in vehicle design
         is an obvious example.) Moreover, once a product is on the market,
         it takes time to develop the information neededto assessa newly
         alleged cause/effect relationship and, in such cases,as the breast
         implant litigation illustrates, litigation often outracesscience.
    l    Pharmaceutical products are uniquely positioned to be targets of
         masstort litigation. As the insert in any drug packageconfirms, they
         inevitably have potentially harmful side efI?ects.The Mass Tort
         Monster is undeterred by the fact that they are on the market
         becausetheir benefits outweigh theserisks.


       “‘Theonly peoplein thewhole tire fiasco seemhappy arethe personal
                                                 who                            injury
    lawyers, who are looking forward to more huge fees.But they say little about why
                                            out                     of
    they kept almost two dozenfatal crashes of a federal database safety problems
    for yearsevenasthey quietly filed multimillion-dollar iaw+its againstFirestoneand

c   sometimes
    at 1.
               Ford aswell.” “Week in Review,” N.Y. TIMES, Sept. 17,2000, Section4,


    6


                                                                                   -.-_-
                                                        &fARTIN   F. CONNOR

c   l   Individuals have beenschooledby the media and the contingent-fee
        bar to assert,and sincerely believe, “I have been exposed,therefore
        I am harmed.” Mass personal-injury litigation :inevitably follows
        whether or not there is any demonstrable causal relationship
        between exposure and adverse effect and-with increasing
        frequency-whether or not there is any evidenceof injury.
    l   Perhapsthe most pervasive source of masstort claiming, however,
                                  of
        is the relentless‘message the media and contingent-fee bar that
        every human ill and ailment, every ache and pain, must have a
        specific external cause that can be identified and attributed to a
        financially responsibleparty.

      One very illuminating illustration ofthis last point has beengrowing
                        of
    popular acceptance “newly recognized” catchall diseases. most The
    popular today appearsto be “multiple chemical sensitivity” (MCS),
    sometimes also called chemical hypersensitivity, total allergy
    sensitivity, environmental illness or sick building syndrome.

        MCS, we are told by one “public advocacy” organization, “is
c       marked by multipie symptomsin multiple organ slystems    (usually
        the neurological, immune, respiratory, skin, gastrointestinal and/
        or musculoskeletal)that recur chronically in responseto multiple
        chemical exposures.

        “MCS usually starts with either an acute or chronic toxic
                                                               to
        exposure, after which this initial sensitivity broadens, include
        many other chemicalsandcommon irritants (pesticides,perfumes
        andother scentedproducts,fuels, food additives, carpets,building
        materials, etc.).

        “MCS symptomscommonly include difficulty breathing, sleeping
        and/or concentrating,memory loss, migraines, nausea,abdominal
        pain, chronic fatigue, aching joints and muscles, and irritated
        eyes, nose, ears, throat and/or skin. In addition, some with MCS
        show impaired balanceand increasedsensitivity not just to odors
        but also to loud noises,bright lights, touch, extremesof heat and
        cold, and electromagneticfields.”

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         THE
    TAMING MASSTORT MONSER


c     MCS Web sites list over a hundred symptoms that are supposedly
    indicative of MCS! And multiple chemical sensitivity necessarily
    implies multiple potential defendants.Is it surprising that these sites
    typically have links to lawyers’ websites?
      There are no limits to the Mass Tort Monster’s appetite. A
    professionalperiodical recently singled out “dental unit water contami-
    nation,” whatever that may be, as the next great masstort! There is no
    end in sight.

    TheJudicial Response

        Thejudiciary first respondedto the new wave of consumerpersonal-
     injury actions, in the 196Os,by fashioning the law of strict product
     liability. This body of law was intended, of course, for conventional
    one-on-one litigation, conductedunder then-current procedural rules,
    and in its earliest formulation clearly contemplated only traumatic
     injuries caused by defectively manufactured products. But then, in
    subsequent              the
                  decades, courts attemptedto usethesesameprocedural
    and substantivemeasuresto resolve the hundreds,thousandsor tens of
L   thousandsof claims that erupt in a masstort context. The courts were
    ignoring, of course,the biblical admonition that one doesnot put new
    wine in old wineskins. It doesnot work.
        In masstort litigation, independentadjudication of individual claims
    on their merits becomesnear impossible. Yet the American judicial
    system is geared toward individualized justice. The clash of adver-
    saries as a meansof ascertaining the truth is perhapsthe most deeply
    rooted principle in Anglo-American law. Each party is afforded a due
    process right to “appear and be heard.“And the emphasis of this
    adversarysystem is upon resolving private disputes: policy making is
    to be left to the legislature.
        The flip side of individualized justice is the presenceof a neutral
    decision-maker.Judgestraditionally havebeenseenaspassivearbiters
    of conflicting private interestswho rule on questionsof law. Neutrality
    in judges always has beenregardedas a good thing.
        Mass torts do not tit comfortably within this system. The adversary
    system’s approach to individualized justice is impractical when
    thousandsof claims must be dealt with quickly and efficiently. Courts

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    8
                                                        h’&RTIN   F. CONNOR

c    become active managersand watchdogs, disregarding the traditional
     norms of judicial passivity and neutrality.
        It is not surprising, therefore, that a tendency soon grew to litigate
     and settle masstort casesby devicesthat are themselvesuntraditional
     but provide some ability to deal with large groups of similarly situated
     parties: the class action, caseconsolidation and bankruptcy.
        By the end of the 198Os,formal aggregative procedures such as
     centralization of multidistrict litigation, classactions andconsolidation
    were being commonly usedto resolve the massivenumbers of claims
    that would otherwise have sat in courts’ backlogs.
        From a mass tort claimant’s perspective, this developmentmeans
    that today, as a practical matter, the only options are between being
     buried in a contingent-fee lawyer’s “inventory” (a very telling
     expression)or being one of thousandsof membersof a class.
        From a defendant’s perspective,the effects of aggregationhavebeen
    even more severe.It is hard to imagine a greater threat to corporate
    health or survival than facing hundreds or thousands of claims in a
    single proceeding. In these circumstances,mass tort litigation draws
     its strength from raw numbers,not from evidenceor science.
t       “If plaintiffs’ lawyers can create enough paralllel litigation,” we
    recently read in Fortune magazine, “if they can scare thousandsof
    clients into filing lawsuits, then the strength or weaknessof the actual
    caseswill be renderednearly irrelevant. The sheervolume of lawsuits
    will force companiesto plead for mercy.”
        New wine requires new wineskins, not patcheson the old ones.We
    need substantiverules and procedural mechanismsthat permit indivi-
    duals who have been injured in fact by an unreasonably dangerous
    mass-marketedproduct or environmental hazard to be compensated
    fairly, expeditiously and at minimum expense.That does not happen
    today. It is contrary to the Mass Tort Monster’s interest.




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                                                                         9
    TAMING THE MASS TORT MONSTER


c                        THE MASS TORT INDUSTRY

    Mass Tort Lawyers: From Cowboy to Organization Man

        The critical factor that turned an emerging mass tort phenomenon
     into a Mass Tort Monster has been the growth of what has been well
     describedas a “mass tort industry.”
        Given the enormousfinancial stakesinvolved, the economic oppor-
     tunity mass tort litigation offers a contingent-fee lawyer is obvious.
     The organization and resourcesthat are neededto exploit it are very
     different, however, from what has been required for a traditional
     plaintiff practice.
        The asbestoslitigation was the schoolroom in which the contingent-
     fee bar learned what it would have to do to exljloit the opportunity
     masstort claiming presented.Fortunes were made in the early stages
     of this litigation through close cooperation of individual lawyers and
     law firms with local unions. Workplace exposures were the norm;
     claims were concentrated in a relatively few venues. With time,
    though, it became clear that the mass tort plaintiffs’ bar could most
L    efficiently and effectively deal with enormous volumes of widely
     dispersed claims by networking, pooling information and expertise,
    and sharing the financial investment thesecomplex casesrequired.
        The lessons were well learned. The result today is a highly
     integratedmasstort industry, most visibly and formally apparentin the
    tobacco litigation. The “Castano Group,” for example, is a vast, well-
    ended joint venture of contingent-fee lawyers organized to file
    tobacco class actions. Others are less formal but just as effective. The
    Association of Trial Lawyers of America (ATLA), the contingent-fee
    lawyers’ trade association, houses some 70 “Litigation Groups” in
    which experience and resources are pooled. In connection with
    ATLA’s 2000 annualmeeting there were postedmeetingsofLitigation
    Groups dealing with breast implants, diet products, firearms and
    ammunition, HMOs, laparascopy,lead pigment and steroids.
        Newspaper accounts of the BridgestonefFirestone AT/ATX tire
    litigation report the central role of the Attorneys Information Exchange
    Group (AIEG), a national federation, basedin Birmingham, Alabama,
    of contingent-fee lawyers who bring automobile and tire-defect cases.
    (The group itself actually participates in casesat times. For example,
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    10
                                                                    F.
                                                              MARTlN CONNOR

L   it filed an amicus brief in Geier,‘) Leading litigators against the tire
    industry, like Bruce Raster of Ocala, Florida, may like to describe
    themselves as “cowboys,” as he does, but they are actually
    quintessentialorganization men.
       One of the most striking, and seldom noted, features of this
    integrating processhas beenthe “syndication”’ of masstort cases,with
    “shares” of casesbeing peddled to other contingent-fee lawyers. The
    masstort casesof the 1980sproducedmulti-millionaire and billionaire
    lawyers who can be wealthier, when they band together, than
    companies they attack. Examples of such wealth are legion. Peter
    Angelos purchasedthe Baltimore Orioles for $173 million from the
    spoils of the asbestos litigation. John O’Quinn once joked that
    estimatesputting his income from breast implant settlementsat $13
    million a month were too low. The tobacco settlements,as we shall
    see,make these sums seempaltry.
       The common law barred outsiders from investing in lawsuits. It was
    concerned, quite properly it would seemtoday, with the distortions
    that might result from speculative investments in marginal or
    groundlesslawsuits. Most stateshave now relaxed that ban, however,
c   for fear that it kept,.meritoriouscasesout of the courts. The distancewe
    have come is well illustrated in an article in the WallStreet Journal of
    September15,2000.6
       We read there that a Las Vegas businessman,Perry Walton, has
    organized Resolution Settlement Corporation, which invests in
    lawsuits around the country in return for a sharein future settlements.
    “He charges clients as much as 15% per month in interest on their
    outstanding balances,“.according to the Journal. Through his Future
    SettlementFunding Corp., Mr. Walton, a onetime rock musician with
    no legal training, also conducts seminars for others who may want to
    enter this new market. The Journal reports that he has trained 400
    people in his business. Betting on lawsuits is, says the Journal, a
    “growth industry.”



       ‘Geier et al. v. American Honda,No. 98-1811.This is an auto airbagcasedecided
    by the U.S. SupremeCourt on May 5,200O.
       6ALas VegasLender TestsOddsin Court-And Forms on Industry WALL ST. J.,
c   Sept. 15,2OOQ, Al.at

                                                                                11
    TAMING THE Ii4.4ss TORT MONSTER

    Media-Manufactured M&w Torts

        In large measure,the masstort industry’s successhas been built on
     its symbiotic relationship with the massmedia.
        Americans are now routinely exposedto mass media stories that
     blithely claim causal connections between consumer injuries and
     product use or exposureand then proceedto castigate a businessand
     point out the potential for litigation.
        The proliferating “news magazine” programs, with their insatiable
     appetite for audience-grabbing stories, are obvious culprits. It is no
     great exaggeration, for example, to say that Connie Chung mothered
     the breast implant litigation and Ed Bradley fathered the Alar apple
     scare. Bradley told viewers that Alar was “the most potent cancer-
     causingagentin the food supply today.” A preposterousstatement.But
     “investigative reporters” of all media, both print and electronic,
     constantly feed the public thesesensationalstories.Discussing the Alar
     apple scare, a New York Times columnist suggestedthat one possible
     explanation of this phenomenon is that “The need for accuracy is
     inversely related to the scareworthinessof the story.”
c       Scary stories about claimed product hazardsare a staple of the mass
     media. “If a product is safe, that is not news. A story about that
     product will not sell advertising or boost ratings. Rather, news is made
     only by products that are dangerousand threaten the public health.
     [These] products are also precisely what plaintiffs and the lawyers who
    representthem need to vilify. . . . Trial lawyers and television have a
    common agenda.“”
        None of this happensby chance.It is unlikely that Ed Bradley or his
    CBS colleagues stumbled on Alar without outside assistance.Breast
    implant ‘tictims”did not spontaneouslyshow up for the TV cameras
    at rallies outside courthousesacross the country. Plaintiff law firms
    now routinely use public relations firms to get their messageto the
    public and to orchestrate’ events that then become news stories
    themselves.Mass torts are aproduct of massmarketing.
        The slownessof defendantcompaniesto recognize this unpleasant
    fact has contributed greatly to their woes. The head of one of the most



c     ‘Hermann,   supru 3, at 5 1.
                       note
                                                      MARTIN   F. CONNOR

c   notorious plaintiff PR firms tells friendly audiences that mass tort
    casesare tried-and won or lost-not in the court room but in the
    media. Or, as Wall Street Journal columnist Holman W. Jenkins, Jr.
    recently put it, “When a negative story gets lifted to pyrotechnical
    prominence, public relations is the only calculus that matters.“*

    SelIing the Mass Tort

       Members of the masstort industry do not wait for clients to come to
    them. They assiduouslyadvertisetheir availability to representspecific
    classesof claimants. They aggressivelyseekout claimants, particularly
    in the wake of a media “expose.”
       Like any industry, the mass tort industry has its wholesalers and
    retailers. The wholesalers prefer aggregatetreatment of claims. They
    race to file class action lawsuits. They must get to the head of the
    paradeif they are eventually to be namedlead counselor appointedto
    a steering committee. The retailers, on the other hand, rush out with
    their newspaperand television advertisements.Their goal is to build
    as large an inventory of claims as possible before others have picked
c   the field clean.
       Every available communicationschannel is used.A typical print ad
    of the masstort industry appearedon pageA5 of TheNew York Times,
    August 14,ZOOO.

    "ATTENTION
             HEARTBIJRNSUFFERERSWHOTOOKTHEPRESCRIPITON
    DRUG PROPULSID,” it screamsin giant type-size.

          “You may be eligible to file a claim against the
          medication’s manufacturer . . . . To fully explore your
          legal rights, you are invited to call the law firm of
          &            immediately. [The firm] is one of America’s
          foremost mass tort/product liability law firms and has
          achieved prominence in such national litigations as
          Asbestos,DES and Silicone Breast Implants . . . .




c     'WALL ST.J., Sept. 13,2000,atA27.

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