Resolving the Class Action Crisis: Mass Tort Litigation as Network
I finally got around to creating an ssrn author page, and have posted my article, Resolving the Class Action Crisis: Mass Tort Litigation as Network, 2005 Utah L. Rev. 863 (2005). Here’s the abstract:
In the last few decades, mass tortlitigation has wrestled with widespread, multijurisdictional problemsthat have greatly stressed the caseloads of courts. Certifying fortrial multiple-incident, product-liability class actions for personalinjuries has promised the resolution of expansive problems. But asappellate courts have increasingly held, these actions are notappropriate for class treatment because they involve numerousindividualized issues that require unmanageable individualizedadjudication. Without a perceived workable alternative, many trialcourts have continued to try radical class action trial plans thatviolate state substantive law and federal constitutional law, but whichbring tremendous pressure to settle upon defendants who fear they maynot be able to obtain appellate review. Attempting to defuse thiscrisis, Congress recently passed the Class Action Fairness Act of 2005,greatly expanding federal jurisdiction for class actions. Once classactions are removed to federal court, however, the Act still providesno alternative for federal courts to the Hobson’s choice framed byplaintiffs’ counsel: certify a class, or be inundated with thousands ofunmanageable, wasteful, and repetitive individual cases.
Butthat is a false dichotomy. This article argues that the alternative tomass tort class actions is not such isolated repetitive litigation, butinstead an expansive set of litigation networks of counsel, judges, andclients, using recent advances in information technology, that providemuch of the efficiency promised by class actions without violatingstate substantive or federal constitutional law. As an example, thearticle discusses the functioning of litigation networks in the ongoinglitigation concerning phenylpropanolamine (PPA), an ingredient in coughand cold remedies and appetite suppressants that has been alleged tocause stroke. By sharing information, pooling resources, developingspecialized expertise, and coordinating strategy, these networks notonly reduce the costs and improve the representation of individuallitigation, but also develop accurate claim values for settlement ofnumerous cases and allow for improved case management over time throughpragmatic experimentation. The article concludes that mass tortlitigation networks provide a fruitful alternative to impermissibleproduct-liability class actions for personal injuries, and that judgesshould deny requests to certify such class actions and insteadencourage and assist in the creation and functioning of litigationnetworks.
BGS