This course examines problems in complex mass tort litigation that emerged during the 1980s and now have become a permanent part of the litigation landscape. Initially, the course surveys the paradigmatic mass tort cases such as those involving the Dalkon Shield, Agent Orange and asbestos litigation to understand and define the peculiar problems arising in the context of mass tort litigation, as opposed to simple two-party tort litigation. During the course we also will examine other mass tort cases involving mass disasters such as Bhopal, Three Mile Island, the Hyatt-Regency Skywalk collapse and the Dupont Plaza Hotel fire; and mass products liability litigation involving bendectin, DES, the silicon breast implant litigation, defective heart valve litigation, repetitive stress injury litigation.
The course is divided into five parts. In the first section we deal with jurisprudential issues, including the debate between proponents of aggregative procedure versus litigant autonomy. In an economic framework, we examine the problem of balancing justice, cost, and delay as these values relate to economic efficiency and sound judicial administration. Finally, this portion of the course examines special ethical dilemmas in mass tort litigation.
The second portion of the course canvasses procedural problems entailed in mass tort litigation, including the failures and successes of federal and state procedural rules to adequately handle these massive cases through the class action rule, consolidation, MDL procedure, and preclusion doctrine. The third section of the course examines how mass tort litigation has challenged and transformed existing substantive tort law doctrines, including problems of indeterminate plaintiffs, indeterminate defendants, joint liability, causation and use of scientific evidence, and aggregate damages. The fourth part of the course canvasses the intricate choice-of-law complications involved in federal diversity mass tort cases, as well as "horizontal" choice-of-law problems involved in state-based mass tort cases. Finally, the last portion of the course addresses alternative methods of resolving mass tort litigation, including administrative approaches, claims facilities, latent injury registries, bankruptcy and trust mechanisms, and settlement classes.
Throughout the course, reference will be made to various reform proposals for resolving mass tort litigation that have been suggested during the last decade, including the recommendations of the ABA Mass Tort Commission, the American Law Institute's Project on Complex Litigation, the Supreme Court Reaveley Commission, and pending federal legislation.
Course materials: The casebook will be Linda S. Mullenix, MASS TORT LITIGATION; CASES AND MATERIALS (2d ed. 2008)(Thomson West).
Prerequisites: Civil Procedure; Torts.