Class Resolution of the Mass Tort Case: A Proposed Federal Procedure Act


Linda S Mullenix

64 Texas Law Review 1039


Federal courts consistently refuse to permit mass-tort litigation to proceed under Federal Rule of Civil Procedure 23. Unfortunately, this persistent refusal has proven costly, inexpedient, and unjust; and has impeded the resolution of contemporary mass-tort cases, including asbestos-related lawsuits, Dalkon Shield cases, DES cases, Agent Orange cases, and Bendectin litigation. Confronted with the realities of this growing, nationwide mass-tort litigation crisis, an increasing number of judges and commentators have urged a more flexible application of Rule 23 in the mass-tort context in order to better serve the interests of justice. Yet these judicial and scholarly pleas continue to fall on deaf appellate ears as the circuit courts persist in construing narrowly the Rule 23 class action procedure.

Clearly, the fault lies not in the courts or commentators, but in the requirements of Rule 23. Assuming, as many jurists and commentators agree, that the class action mechanism is superior to any other currently available method for adjudicating mass-tort claims, then either Rule 23 should be retailored to the mass-tort case, or Congress should enact a federal procedure act designed to accommodate the special problems of contemporary mass-tort litigation. A federal mass-tort procedure act clearly is the best solution. Amendment of Rule 23 would merely engraft a new set of requirements onto an already problematic statute, and would raise troublesome incorporation-by-reference issues. Moreover, amendments to Rule 23 could not address jurisdictional or notice concerns within the structure of the Rule. As a result, to modify Rule 23 successfully for mass-tort lawsuits would require amendment of other portions of the United States Code. A federal mass-tort procedure act could also include provisions concerning substantive liability and damages, such as those that have already been proposed in several pieces of federal legislation.

This Article proposes a federal mass-tort procedure act as the best approach for dealing with the nationwide litigation crisis engendered by mass-tort lawsuits. The proposed statute is based on three premises. First, a separate procedure statute can best achieve “economies of time, effort, expense, and promote uniformity of decisions as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Second, procedural reform must precede substantive reform if the fair resolution of mass-tort claims is to be accomplished. Modifying substantive tort principles is useless if procedural rules frustrate the litigation of mass-tort claims. A model statute could, however, incorporate substantive tort law principles. Finally, the model act is premised on the recognition that traditional “mass accident” cases, which the drafters of Rule 23 originally contemplated, differ significantly from contemporary “mass tort” lawsuits now crowding court dockets.

The proposed mass-tort procedure act is carefully crafted to encompass only truly nationwide mass-injury cases, rather than a single airplane crash in Texas or a multicar collision on the New Jersey Turnpike.This Article first describes the long-standing judicial prejudice against class action treatment of mass-tort litigation. It is then argued that this judicial resistance is justified both because mass-tort cases fail to comply with Rule 23 certification requirements, and because attempts to bend the existing Rule for use in suits to which it was not intended to apply are disingenuous, unprincipled, and largely futile.

This Article then explores certain matters to be considered in fashioning a model mass-tort procedure statute. Among the problems evaluated are defining the class action, jurisdiction, notice, individualization of claims and defenses, applicable law, res judicata effect of judgments, staying of state court proceedings, adequacy of representation, and mandatory settlement referral. A recommended legislative solution and an analysis of the merits of the proposal accompanies each problem.

The Appendix to this Article contains a draft mass-tort procedure act. The proposed act requires class action treatment of mass-injury litigation involving a minimum of one thousand potential claimants. Federal jurisdiction is based on a federal question rather than on diversity, with personal jurisdiction conferred through class member consent. State attorneys general acting in a parens patriae capacity would initiate mass-tort class actions and give notice to claimants in the best manner practicable, including nationwide mail service of process. Attorneys' fees and costs are taxed to the potential litigants in a manner designed to encourage class joinder, to discourage private litigation, and to have a minimal impact on the public treasury. All potential class members are required to elect either inclusion or exclusion from the class. Potential class members choosing exclusion are subject to a judicial determination concerning the merits of separate proceedings.

The proposed act authorizes the creation of limited issue classes and similar claim subclasses. In addition, the proposed act authorizes the creation and application of a federal common law of mass tort. In the alternative, a second proposed provision eliminates the federal common law of mass tort, and substitutes legislatively mandated substantive mass-tort liability and damage provisions. All class members are bound by the judgment of the court, whether favorable or not, but opt-out claimants are not precluded from asserting offensive collateral estoppel in subsequent lawsuits against an unsuccessful defendant. A judicial determination of any res judicata effect of a prior judgment, however, would focus on fairness to the relitigating defendant. The proposed act also authorizes federal courts to stay parallel, concurrent state court proceedings. Finally, the proposed act requires mandatory settlement referral prior to trial, preferably to retired federal judges.

Full Citation

Linda S. Mullenix, Class Resolution of the Mass Tort Case: A Proposed Federal Procedure Act, 64 Texas Law Review 1039 (1986).