MDL DRANO: RULE 23-BASED SOLUTIONS TO MASS TORT BUILDUP

It has been taken as gospel, over the past quarter century, that class action procedures are unavailable in mass tort cases. This Article examines two distinct challenges to that assumption—one resting on Rule 23(c)(4)’s issue class procedure and the other on an innovation advanced by Francis McGove...

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Bibliographic Details
Published inLaw and contemporary problems Vol. 84; no. 2; p. 121
Main Authors Gilles, Myriam, Friedman, Gary
Format Journal Article
LanguageEnglish
Published Durham Duke University, School of Law 22.03.2021
Duke University School of Law
Subjects
Arbitration
Attorneys
Autonomy
Claimants
Class action lawsuits
Contingent fees
Court decisions
Factual issues
Injuries
Innovations
Laws, regulations and rules
Liability
Litigation
Mass tort suits
Multidistrict litigation
Resting
Rules
Settlements & damages
State courts
Teams
Tort
Torts
Trials
Victims
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Summary:It has been taken as gospel, over the past quarter century, that class action procedures are unavailable in mass tort cases. This Article examines two distinct challenges to that assumption—one resting on Rule 23(c)(4)’s issue class procedure and the other on an innovation advanced by Francis McGovern, in whose honor this Article and symposium are dedicated. First, Rule 23(c)(4) issue-classing provides multidistrict litigation (MDL) courts with a uniquely potent tool for streamlining mass tort litigation while respecting the autonomy of individual claimants.1 The object of the (c)(4) trial is a judicial declaration that resolves disputed issues regarding the defendant’s conduct that are common across claimants. In the typical mass tort case, where liability turns on hotly disputed factual issues and the parties’ bargaining positions are polarized accordingly, it stands to reason that a unitary and binding determination of the defendant’s wrongdoing will help drive resolution. The issue judgment likewise enables the individual tort victim to press her damages case in a subsequent independent proceeding. Whether in state court, arbitration, or wherever venue may lie, the individual plaintiff will have the option of trying her damages case without an extensive team of lawyers, investigators and experts. The issue class judgment thus creates access to a manageable individual trial, where a single victim may be well represented by a single generalist injury lawyer working on a contingent fee basis.
ISSN:0023-9186
1945-2322