Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices.

• Author: Kimmett, Charles T.

Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices. By Jack B. Weinstein. Evanston: Northwestern University Press, 1995. Pp. xvii, 367. $35.00.

I

The rapid rise in the number of mass tort claims over the past twenty years has put a great strain on our legal system. Unlike a simple tort, in which there is a single, identifiable wrongdoer and a definite injury, mass torts often involve multiple exposures to harm, multiple and unidentifiable wrongdoers, and latent injuries. These mass torts have taken a heavy toll on corporate defendants. Litigation over silicone breast implants--a recent, notable mass tort action--has attracted over 400,000 potential claimants(1) some consolidating their claims into a class action and others opting to pursue their claims individually.(2) Dow Corning, the leading national manufacturer of breast implants, filed for Chapter 11 bankruptcy protection after the collapse of a proposed $4.25 billion settlement.(3) In so doing, Dow Corning joins asbestos manufacturer Johns Manville Corporation and Dalkon Shield contraceptive manufacturer A.H. Robins on the list of formerly profitable corporate defendants who have succumbed to Chapter 11 in the face of voluminous mass tort claims.(4)

While large mass tort judgments against corporate defendants have resulted in conservative agitation for tort reform,(5) Judge Jack Weinstein finds tort law to be deficient from the victim's point of view as well. Judge Weinstein's judicial experience includes presiding over some of the most notable mass tort trials in U.S. legal history.(6) His ad hoc "communitarian"(7) solutions to the problems he faces have resulted in appellate reversal frequently enough to earn him the nickname "Reversible Jack."(8) In Individual Justice in Mass Tort Litigation, Weinstein advocates expansive revisions of legal and ethical rules in an effort to better serve the interests of individual claimants in the mass tort context. Most significantly, Weinstein calls for a legislative initiative that would eliminate the need for victims to rely on tort law for compensation, or, in the alternative, the protection of the victim community through the use of courts, equitable powers. Weinstein's proposals, though well intentioned, fall short of a realistic solution to the problems presented by mass torts. Specifically, his proposed legislative initiative lacks a realistic source of funding, and his reforms in the name of the individual actually do more to serve the interest of the community.

II

In response to the legal system's inability to handle mass torts,-Judge Weinstein calls for a broad compensatory legal framework that would dispose of most tort litigation. His plan includes creating a national health care system and extending Social Security disability benefits to all persons. These reforms would give victims a means of recovery independent of tort law (pp. 4-5, 120). Weinstein advocates making protection available through first-party insurance or worker fringe benefits (p. 33). Government regulatory agencies would be strengthened to monitor corporations adequately, thereby deterring tortious behavior and effectively "serv[ing] as the first and main line of defence" (p. 32). Weinstein also proposes enacting a uniform national tort law to replace the many different state tort laws (pp. 4, 21, 146) and creating a National Disaster Court to handle any "substantial" mass tort accidents (p. 34).

Critics may be quick to label Weinstein's proposals big-government solutions. His fundamental premise, however, seems sound: In the absence of guaranteed health care, tort law is the primary means of redress for many of the injured. Victims without medical insurance must sue in order to purchase the care that they need. This reliance on tort law creates...