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

Questions What is a mass tort litigation? What are the characteristics of mass tort litigation? 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 20 th 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

Questions 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 most) 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 settlements

Problems with Complex Mass Torts Large numbers of individual cases clog courts Repeat litigation of common issues (duplicative litigation) 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 tort: (1) Numerous victims who have filed or might file damage claims against the same defendant(s); (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

Questions 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- controlled

Litigation Models Prof. Chayes description of new public law model: (1) Process is sprawling and amorphous (2) Litigation subject to change over course of litigation (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 centuries?

Fine