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Appendix C
Mass Torts Problems & Proposals
A report to the Mass Torts Working Group
Thomas E. Willging
Federal Judicial Center
January 1999
This report was undertaken at the request of the Mass Torts Working Group and is
in furtherance of the Center’s statutory mission to conduct and stimulate research
and development for the improvement of judicial administration. This work has
been reviewed by Center staff and publication signifies that it is regarded as responsible
and valuable. The analyses, conclusions, and views expressed are those of the
author and not necessarily those of the Federal Judicial Center.
The author is grateful for the capable and substantial research assistance provided
by Rebecca Spiro of Georgetown University Law Center and by Brian Lang of Ohio
State University School of Law and for comments from Joe Cecil, Molly Treadway
Johnson, and Marie Cordisco Leary on an earlier draft. Chief Bankruptcy Judge
David S. Kennedy (W.D. Tenn.) provided insightful and invaluable comments on
an earlier draft of the bankruptcy section.
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Appendix C: Mass Torts Problems & Proposals
Contents
Introduction, 1
I. Problems, 2
A. Overview, 2
B. Are there any problems?, 3
C. Unintended effects of solutions, 5
D. Idealized criteria, 6
E. Problems, 8
1. Defining mass torts, 8
2. Volume of litigation: mass production and marketing, 9
3. Scientific uncertainty, 10
4. Economic incentives: attorneys’ fees, 11
5. Costs and delays, 12
6. Burden on the courts, 14
7. Dispersal of cases in federal and state courts, 15
8. Outcome fairness and consistency , 16
9. Procedural fairness, 17
10. Latent diseases and future claimants , 18
11. Claiming rates , 19
12. Limited, uncertain funding, 20
13. No exit, 20
14. Institutional limitations, 21
F. Summary, 21
II. Proposals to address mass torts problems, 22
A. Case-management proposals, 22
1. Aggregation, 22
a. Background, 23
b. When and whether to aggregate?, 25
c. Aggregation—Settlement classes after Amchem, 31
d. Litigation class actions after Amchem, 37
e. Judicial role in reviewing mass torts class settlements, 37
f. Aggregation proposals, 39
i. Mass exposure in risk-based torts. , 39
ii. Statistical sampling in mature mass torts., 43
2. Use of court-appointed experts, 55
3. State-federal cooperation , 57
a. Voluntary innovations, 58
b. State-federal legislative proposal, 59
4. Alternative dispute resolution , 60
a. Background, 60
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Appendix C: Mass Torts Problems & Proposals
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