The Influence of Mass Toxic Tort Litigation on Class Action Rules Reform
INTRODUCTION
Mass toxic torts litigation is a phenomenon that, since its serious emergence in the United States in the 1980s, has both characterized popular conceptions of class action practice and flavored the broader debate over national tort reform. Demonstrative litigation such as In re Agent Orange Product Liability Litigation and In re Three Mile Island Litigation2 are flagship toxic exposure cases involving class action proceedings on behalf of thousands of individuals claiming damages for chronic exposure to a variety of harmful substances released into the environment.
This Note advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct “rounds” of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitudes towards the certification of mass toxic torts have influenced the reform debate in radically different ways: initially by providing the catalyst for efforts to reform Rule 23, then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes, and ultimately as an explanation for the comparatively modest reforms presently before Congress. The common theme throughout the three “Rounds” of reform is that the trends and developments in mass toxic tort litigation have determined the pace and substantive outcome of class action rule reform in the United States. The fact that Rule 23 remains standing, in what is effectively its original 1966 format, supports a central contention of this Note, namely that any meaningful change to class action practice designed to accommodate the legal and ethical challenges posed by aggregate toxic exposure claims lies in the collective hands of Congress.
Part II of this Note provides a working definition of the mass toxic tort by examining the key characteristics of this species of litigation, including a discussion of the scientific difficulties associated with establishing causation in such litigation and the procedural tensions arising out of the emergence of multiple-incident mass toxic torts.
Part III examines the early proliferation of mass toxic torts in the 1980s and the volume pressures that motivated litigants and ultimately the courts to bring such claims as class actions. The subsequent calls for class action rule reform comprised “Round One” of the three-part reform contest that pitched mass toxic torts against the present procedural mechanisms for bringing aggregate claims.
Part IV outlines the emergence of the future-claimants mass toxic tort class action, plunging the Advisory Committee into a headlong consideration of the ethical and legal implications of determining “futures” in the context of a settlement-only class action. Accordingly, “Round Two” of the continuing battle between mass toxic torts and Rule 23 is characterized by a concern that such claims should be curbed in light of their controversial application in toxic exposure cases and the unanticipated effects of rule reform on settled areas of practice outside the mass toxic tort context.
Part V considers the current proposals to reform Rule 23 that were submitted by the United States Supreme Court to Congress on March 27, 2003. Although the proposals are largely procedural as opposed to substantive in nature, they arguably present a host of potential unintended consequences that, although ventilated before the Advisory Committee, have not deterred the adoption of the proposals by the Supreme Court.
Part VI analyzes current proposals and suggests that, in the context of the history of class action rule reform, “Round Three” is likely to result in rejection of the amendments to Rule 23. The present amendments unmistakably present opportunities for unintended consequences affecting class action practice outside of the mass toxic tort context. More importantly - perhaps fatally to the success of the proposals - they do not squarely address the myriad of potential legal and ethical issues emerging from the mass toxic tort phenomenon. That is a task beyond the limited capacity of rule reform, and the time is ripe for congressional intervention to deal with these aspects of the mass toxic tort phenomenon. The present attempt to deal administratively with the resilient flows of asbestos litigation by embracing a national privately-financed trust may be a product of the lessons learned from three protracted rounds of class action rule reform and the growing exigency of congressional intervention.
Mass toxic torts litigation is a phenomenon that, since its serious emergence in the United States in the 1980s, has both characterized popular conceptions of class action practice and flavored the broader debate over national tort reform. Demonstrative litigation such as In re Agent Orange Product Liability Litigation and In re Three Mile Island Litigation2 are flagship toxic exposure cases involving class action proceedings on behalf of thousands of individuals claiming damages for chronic exposure to a variety of harmful substances released into the environment.
This Note advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct “rounds” of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitudes towards the certification of mass toxic torts have influenced the reform debate in radically different ways: initially by providing the catalyst for efforts to reform Rule 23, then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes, and ultimately as an explanation for the comparatively modest reforms presently before Congress. The common theme throughout the three “Rounds” of reform is that the trends and developments in mass toxic tort litigation have determined the pace and substantive outcome of class action rule reform in the United States. The fact that Rule 23 remains standing, in what is effectively its original 1966 format, supports a central contention of this Note, namely that any meaningful change to class action practice designed to accommodate the legal and ethical challenges posed by aggregate toxic exposure claims lies in the collective hands of Congress.
Part II of this Note provides a working definition of the mass toxic tort by examining the key characteristics of this species of litigation, including a discussion of the scientific difficulties associated with establishing causation in such litigation and the procedural tensions arising out of the emergence of multiple-incident mass toxic torts.
Part III examines the early proliferation of mass toxic torts in the 1980s and the volume pressures that motivated litigants and ultimately the courts to bring such claims as class actions. The subsequent calls for class action rule reform comprised “Round One” of the three-part reform contest that pitched mass toxic torts against the present procedural mechanisms for bringing aggregate claims.
Part IV outlines the emergence of the future-claimants mass toxic tort class action, plunging the Advisory Committee into a headlong consideration of the ethical and legal implications of determining “futures” in the context of a settlement-only class action. Accordingly, “Round Two” of the continuing battle between mass toxic torts and Rule 23 is characterized by a concern that such claims should be curbed in light of their controversial application in toxic exposure cases and the unanticipated effects of rule reform on settled areas of practice outside the mass toxic tort context.
Part V considers the current proposals to reform Rule 23 that were submitted by the United States Supreme Court to Congress on March 27, 2003. Although the proposals are largely procedural as opposed to substantive in nature, they arguably present a host of potential unintended consequences that, although ventilated before the Advisory Committee, have not deterred the adoption of the proposals by the Supreme Court.
Part VI analyzes current proposals and suggests that, in the context of the history of class action rule reform, “Round Three” is likely to result in rejection of the amendments to Rule 23. The present amendments unmistakably present opportunities for unintended consequences affecting class action practice outside of the mass toxic tort context. More importantly - perhaps fatally to the success of the proposals - they do not squarely address the myriad of potential legal and ethical issues emerging from the mass toxic tort phenomenon. That is a task beyond the limited capacity of rule reform, and the time is ripe for congressional intervention to deal with these aspects of the mass toxic tort phenomenon. The present attempt to deal administratively with the resilient flows of asbestos litigation by embracing a national privately-financed trust may be a product of the lessons learned from three protracted rounds of class action rule reform and the growing exigency of congressional intervention.
