An opportunity for mass tort reform.

• Author: Linder, Rex K.

The proliferation of mass tort litigation has placed a significant strain on our judicial system as well as our nation's business community. In what is sometimes called entrepreneurial litigation, plaintiffs' attorneys represent thousands, or millions, of clients who they have never met nor to whom they are directly accountable. Courts find themselves struggling to manage the caseloads that typically involve a multiplicity of complex issues. Business finds itself subject to a new regulatory effect impacting on their activities but not promulgated by the legislative branch or regulatory agencies.

As noted by Judge Paul V. Niemeyer, mass tort and class actions have created "de facto regulation of business."

Judicial Conference group's report

Congress, in response to increasing interest in mass torts, has conducted hearings. The topic also has received the attention of the Judicial Conference Civil Rules Advisory Committee. The recently released Report on Mass Tort Litigation prepared by the Judicial Conference Working Group on Mass Torts has been an important step in the direction of much needed reform.

The report highlights the strain that mass torts impose on our traditional adversary system. Other problems also are noted. Plaintiffs may encounter significant delay in recovery or be forced to compete for an inadequate pool of assets. Defendants may be forced to settle "weak claims rather than face the enormous risks posed by the aggregation of numerous claims." The report recognizes mass torts typically generate enormous attorneys' fees "which may cause the process to generate its own momentum."

Although there are formidable obstacles in resolving these complex problems, the report presents certain interesting ideas for further study. Some of the possible solutions include:

* opt in class actions for trial;

* limiting state court class actions to matters primarily affecting the forum state;

* transfer and consolidation...