INTRODUCTION.

• Author: SCIRICA, ANTHONY J.

Arguably the most vexing issue in modern civil litigation is the problem of personal injury mass torts--the accumulation of thousands (even millions) of claims through class actions or through aggregation in grouping individual lawsuits. Especially problematic are personal injury suits that are truly national in scope, implicating primarily state law, involving unresolved issues of causation and the possibility of latent injury. In many cases, these claims compete for a limited fund or insufficient assets and may threaten the financial stability of the defendants. Multiple individual filings threaten prompt adjudication of legitimate claims. Unreasonable delay, limited funds, and disparate verdicts on liability and damages raise serious questions of fairness. But aggregation has its price. It threatens individual consideration of cases and undermines the traditional lawyer/client relationship. Which prompts the question--how much aggregation, at what point in the litigation, and for what purpose?

In November 1999, the University of Pennsylvania Law School sponsored a Mass Torts Symposium to discuss these and other issues. The Symposium drew on and continued the work of the Judicial Conference's Mass Torts Working Group.(1) Symposium participants--including federal and state judges, litigators and corporate general counsel, academicians, and public interest lawyers--deliberated on federal/state issues, the problems of claims that may be made in the future, certification, settlement and closure of national mass tort actions, the unique problems of bankruptcy, and the costs and benefits of mass tort litigation.

Not all mass claims are problematic. Since the 1966 revision of Rule 23, the federal legal system has, to a greater or lesser degree, satisfactorily accommodated class actions in antitrust, securities, consumer fraud, and employment discrimination. The adoption of the Multidistrict Litigation ("MDL") statute(2) and the discerning and resourceful actions of the MDL panel and transferee judges have permitted the fair and expeditious resolution of many mass claims.

When over time serious mass claim problems were perceived, Congress and the Supreme Court Rules Committees responded with changes in substantive and procedural law.(3) In securities fraud, for example, Congress responded to perceived abuses of strike suits in private securities actions by amending both substantive and procedural law. The principal procedural changes raised the bar in bringing suit and gave parties with the highest stakes an opportunity to control the outcome of the litigation.(4) The principal substantive change provided a safe harbor for forward-looking statements.(5)

Similarly, the Judicial Conference Rules Committees responded to the risk of improvident and largely unreviewable class certification decisions by amending Rule 23. Granting or denying class certification is the defining moment in many class actions, for it may sound the death knell of the litigation or create irresistible pressure to settle. Accordingly, Rule 23 was amended to provide for an interlocutory appeal by permission of the court of appeals,(6) In addition, the amendment will facilitate development of the law on class certification.(7)

Personal injury mass torts, however, are another matter,(8) They have proved less amenable to similar substantive and procedural solutions. In some mass torts--like asbestos--delay and extraordinary transactions costs (approaching two-thirds of recovered damages)(9) diminish the value of legitimate claims. Ten years ago, Judge Robert Parker pointedly described one impact of the massive asbestos litigation: "Four hundred and forty-eight members of the class have died waiting for their cases to be heard."(10) Judge Parker...