Litigate the Torts, Not the Mass: A Modest Proposal for Reforming How Mass Torts are Adjudicated

January 1, 0001
O'Melveny partners John Beisner and Jessica Miller have authored a monograph proposing an innovative approach to changing the way in which mass tort cases are litigated. "Litigate the Torts, Not the Mass: A Modest Proposal for Reforming How Mass Torts are Adjudicated," was released last week by its publisher, the Washington Legal Foundation.

Mass torts present a challenge to the US court system because there is no standardized approach for dealing with the overwhelming number of cases that arise when products are recalled or a financial scandal is uncovered. Typically, a federal court is assigned by the Judicial Panel on Multidistrict Litigation to coordinate the onslaught of litigation, but without any guidelines for managing the caseload, that court is forced to find some way of efficiently resolving the litigation. Plaintiffs' counsel often pressure the court to deal with the mountain of cases by cutting due process corners or applying pressure for an early global settlement.

Citing specific examples from the product liability and pharmaceutical industry litigation, the monograph explores the current treatment of mass torts and proposes four simple procedural reforms that could improve the way mass torts are handled by US courts. Beisner and Miller suggest:

Expanding the diversity jurisdiction of federal courts to enable further concentration of claims before a minimal number of tribunals;
Adopting standardized winnowing procedures to arrive more quickly at an understanding of the size and nature of the legitimate claims pool;
Eliminating class action tolling of limitations periods to provide clearer guidance to the parties about when all viable claims must be filed; and
Revising ethical rules to account for the unique problems posed by mass tort settlements.

The monograph features a foreword by Richard A. Nagareda, Professor of Law & Director of the Cecil D. Bransetter Litigation & Dispute Resolution Program at Vanderbilt University Law School.