Class Actions and Other Multi-Party Litigation in a Nutshell

Robert H. Klonoff

§ 11.4 Responses to Judicial Skepticism
It would be a serious mistake to view such decisions as Rhone-Poulenc, Castano, Amchem, and Ortiz, as the end of aggregate mass tort lawsuits. Mass tort class actions—and lawsuits that function similarly to class actions—have continued to be filed, and many of those cases have been successful.

First, some federal courts continue to be receptive to mass tort class actions. One such example is a nationwide class action against a pharmaceutical company. In re Copley Pharmaceutical, Inc., 161 F.R.D. 456 (D.Wyo.1995). Furthermore, a number of federal circuits have not yet weighed in on whether they will endorse the approaches taken by the Fifth and Seventh Circuits in Castano and Rhone-Poulenc.

Second, federal setbacks have stimulated a focus on state court alternatives. Although some state courts have looked with skepticism upon mass tort class actions, plaintiffs have generally found more receptive audiences in state courts than in federal courts. See pp. 154-155, supra.

Third, theories have been advanced in both state and federal court that purport to resolve some of the manageability problems in mass tort cases. One prime example accepted by some courts is the socalled "medical monitoring" claim, under which plaintiffs exposed to a toxic substance allege that they should receive periodic medical observation at the defendant's expense, even when they have exhibited no physical symptoms. See pp. 51-52 and 68, supra. Plaintiffs asserting medical monitoring claims have argued that such claims eliminate the need to prove individualized injuries and damages. As a related matter, litigants have asserted tort theories premised not upon current injuries but upon fear of future disease or increased risk of future damages. Still other litigants have attempted to overcome issues of individual proof by arguing for the elimination of certain traditional tort elements, such as the reliance requirement in certain fraud cases. In addition, plaintiffs have argued that individualized damages issues can be minimized through statistical proof. See pp. 227-230, infra.

Litigants have also devised a variety of surrogates for class treatment. One highly publicized example involves cost-recoupment suits filed against the tobacco and firearms industries by government entities (or, in the case of tobacco, by private entities, such as health insurers) for medical costs allegedly resulting from tobacco- and firearm-related injuries.

These efforts, taken together, reveal that large mass tort cases are not going to disappear any time soon.

Copyright © 1999 West Group