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in asbestos litigation, aggregating cases in response to perceived problems causes an identifiable
problem: the presence of a large proportion of asbestos claims in which the plaintiffs
have no physical impairment. Were the cases handled individually, he asserts, nonimpairment
cases could be screened out on the merits, preventing the one problem he
concedes has arisen.
Along similar lines, lawyers have argued that class certification in mass torts cases may
complicate legal processes, not streamline them, and create, not resolve, mass filings.7
They contend that courts can effectively approach mass torts by using conventional procedures
such as strictly applying joinder rules, limiting consolidations and coordinations
to discovery and pretrial issues, weeding out non-meritorious claims through aggressive
use of summary judgment and other devices for scrutinizing the merits, using ADR procedures,
and, in the end, trying cases.8 The resulting pattern of jury verdicts “‘will reflect
a consensus, or at least a pooling of judgment, of many different tribunals.’”9
While not asserting a lack of problems, other commentators have observed the evolution
of a mass torts system by a gradual trial-and-error approach through common-law
policymaking. The system that has emerged “has made some functional adaptations while
retaining certain features that . . . many . . . view as dysfunctional.”10 Examples of judicial
managerial adaptations include “novel claims aggregation techniques, statistically-derived
outcomes, . . . more systematic alternative dispute resolution efforts, and coordinated
federal state court proceedings.”11 In the absence of legislative action, judges, attorneys,
and litigants have created a system that responds ad hoc to problems as they emerge
through litigation.
7. See Barry F. McNeil & Beth L. Fancsali, Mass Torts and Class Actions: Facing Increased Scrutiny, 167
F.R.D. 483, 490 (1996) (“class certification encourages litigation by claimants who otherwise would not participate
in the legal process”); see generally Ronald D. Krist, Wide View of Tort Reform, 24 Pepp. L. Rev. 889
(1997) (challenging the empirical premises of tort reform and arguing that mass tort litigation has served as
the watchdog of safety).
8. McNeil & Fancsali, supra note 7, at 486, 503–07.
9. Id. at 506–07 & n.143 (quoting Wadleigh v. Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1299–1300 (7th
Cir. 1995).
10. Peter H. Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 Cornell L. Rev. 941, 988 (1995).
11. Id. at 956–57 (footnotes omitted).
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Appendix C: Mass Torts Problems & Proposals
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