Robert H. Klonoff
| Chapter 11, Part I (Mass Torts) |
§ 11.2 Mass Torts in the Mid-1980s |
§ 11.2 Mass Torts in the Mid-1980s
In the mid-1980s, the explosion of asbestos suits, as well as the highly
publicized Agent Orange litigation, led to a major shift in attitude among
many federal courts in favor of certifying mass tort cases. One landmark
ruling was Jenkins v. Raymark Industries, 782 F.2d 468 (5th Cir.1986).
In that case, the Fifth Circuit upheld the certification under Rule 23(b)(3)
of hundreds of claims involving asbestos-related personal injuries. The
court noted the prior reluctance of courts to certify mass tort cases
but stated that, in light of the 5,000 pending asbestos cases in that
circuit, "[n]ecessity moves us to change and invent."
In certifying the class under Rule 23(b)(3), the district court found
that the "state of the art" defense - that the dangerous nature of asbestos
could not reasonably have been known at the time asbestos was placed on
the market - predominated over any individual issues. As a result, the
district court permitted the consolidation of approximately 900 cases
pending in its district into a class of plaintiffs under Rule 23(b)(3).
The Fifth Circuit approved this certification, finding that the predominance
and superiority requirements were satisfied. The Fifth Circuit noted that
the district court's "plan is clearly superior to the alternative
of repeating, hundreds of times over, the litigation of the state of the
art issues with, as [the] experienced [district court] judge says, 'days
of the same witnesses, exhibits and issues from trial to trial.'"
Other significant appellate court rulings upholding class certification
during the mid-1980s included the Agent Orange and School Asbestos
cases. In re School Asbestos Litig.,789 F.2d 996 (3d Cir.), cert.
denied, 479 U.S. 852 (1986); In re "Agent Orange" Prods. Liab. Litig.,
818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004 (1988).
In School Asbestos, the Third Circuit upheld the certification
under Rule 23(b)(3) of a class action by school districts in several states
seeking recovery of the costs of testing and removing asbestos from school
buildings. In so doing, the court noted that "the trend has been for courts
to be more receptive to use of the class action in mass tort litigation."
In Agent Orange, the Second Circuit upheld the certification of
a class of former military members and their families seeking damages
for injuries caused by exposure to the herbicide Agent Orange.
This receptiveness by appellate courts led plaintiffs throughout the
country to bring a variety of mass tort class actions: cases involving
toxic spills, pharmaceutical products, and medical devices, among others.
In 1989, certification of a class action in the Dalkon Shield litigation
was approved by a federal appellate court (albeit in the settlement context).
In re A.H. Robins Co., 880 F.2d 709 (4th Cir.1989). This case was
significant because, as noted above, a different appellate court had overturned
an order certifying a class in the Dalkon Shield litigation seven years
earlier.
As part of this shift in favor of certifying mass tort cases, a number
of prominent federal district court judges took leading roles in resolving
thousands of Agent Orange, asbestos, and Dalkon Shield cases.
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