Ethical Issues of Mass Tort Litigation: Philosophy & Principles in Settlements

The Mass Tort Litigation Institute

Presentation by Sybil Shainwald, Esq., November 6, 1998

 

In an increasingly complex society where technological and scientific advances abound, mass tort litigation is becoming an increasingly commonplace phenomenon.  One of the greatest challenges presented in any mass tort litigation is to devise a mechanism to ensure that thousands—or even millions—of individuals alleging injury from a single product receive compensation in a fair and efficient manner.  Clearly, there is a delicate balance to be struck in attempting to resolve numerous tort claims while at the same time preserving justice for the individual plaintiff. 

 

Mass torts present problems that are not usually encountered by lawyers representing individual clients.  Conflicts of interest, attorneys’ fees and insufficient communication among class members and class counsel loom large as issues. (See Swanzey, G.C.).  According to Heather Johnson, the civil justice system has “fared poorly” in resolving mass product liability claims effectively. (#1).  Many so-called “mass tort” cases remain unresolved for many years, including actions instituted against the manufacturers of diethylstilbestrol or DES which have been “lingering” in the courts for over thirteen years. (#2).  Women injured by the Dalkon Shield IUD some twenty (20) years ago have still not received full compensation from the Trust.  Justice delayed is indeed justice denied in such cases.

 

Devices and Methods Utilized in Mass Tort Settlements

How in an era of mass tort litigation can the balancing of individual justice be preserved and these complex litigations be managed?  Some examples of the methods used to manage mass tort litigation are class action Multidistrict Litigation (“MDL”) proceeding. (#3)  In the state courts we have state-wide consolidations of large numbers of cases that are assigned to a single state court judge for pre-trial proceedings. (#4).

 

The “Settlement Class Action” is essentially a lawsuit that is certified as a class for the stated purpose of settling large numbers of claims, as opposed to being a vehicle by which claims are to be litigated up through a trial.  We saw this device used in the silicone breast implant litigation pending before U.S. District Court Judge Same C. Pointer, Jr. in the Northern District of Alabama. (#5).

 

Recently, questions about the “efficacy and fairness” of class actions have arisen, with parties on both sides having differing points of view as to the value and use of the class action device. (#6).  Proponents of the device argue on the one hand that the class action should be expanded to provide a more effective procedural took with which to administer justice in the context of a mass tort litigation. (#7).  On the other hand, other express concern that the class action settlement has basically become an engine for lawyers’ fees with very little of it having to do with achieving justice. (#8). 

 

----------------------------------------------------------------------------------------------------------------------------------------------------------

 

#1) See Johnson, H.M.at 2329

 

#2) Id. at 2329

 

#3) See e.el, In re Silicone Gel Breast Implant Product Liability Litigation, No. CV 92-P10000-S (MDL -926) (N.D. Ala.) and In re Diet Drugs (Phenteremine/Fenfluramine/Desfenfluramine) Products Liability Litigation, No. 98-20027 (MDL-1203) (E.D. Pa.

 

#4) See e.g., In re: New York State Silicone Breast Implant Litigation, No. 500,000/93 (Sup. Ct., NY Co.); In re: New York Diet Drug Litigation, No. 700,000/98 (Sup. Ct., NY Co.); In re: New York City DES Litigation, No. 4,000/90 (Sup. Ct.  NY Co.

 

#5) See Lindsey, et al. v. Dow Corning Corporation, et al., No. CV 94-P-11558-S (N.D. Ala. 1994) (Order No. 15 granting preliminary approval to settlement agreement, conditionally certifying settlement class, approving notice, and scheduling fairness hearing

 

#6) See Saltzburg, S.A.

 

#7) See, e.g., Johnson, H.M., encouraging the increased use of the action “settlement class” as the most efficient means to resolve most mass torts involving injurious exposure

 

#8) See Saltzburg, S.A. at 1657; see also comments elicited from panel Roundtable Discussion, The Future of Class Action Mass Torts, 66 Fordham L. Rev. 1657 (1998)