This Article seeks to advance the use of mass tort class actions and proposes that they are not only appropriate, but desirable, when evaluated against the backdrop of substantive tort law policies. Moreover, the substantive goals of tort law as applied in the mass tort context support the conclusion that the individualized case-by-case adjudication standard, as applied through our adversary system as it is presently constituted, fails to further the search for fairness as well as truth in the mass tort context, and therefore, does not achieve the fairness or justice that we seek through our judicial process.
The guiding principle of this Article's thesis is that the judiciary, as well as other opponents of the mass tort class action, has an unnecessarily "proceduralist" perspective on the class action tool, with an inordinate fear of the "mass" side of the equation. That fear stems from the proceduralist's concern with the traditional right to individualized, case-by-case adjudication and the judicial system's perceived need to maintain and insure its integrity only through that traditional adversary system. This Article proposes that the proper definition of the mass tort class action requires a greater focus on the "tort" side of the "mass tort" equation. The proceduralist view is concerned with the generic effect of a particular procedure on the fairness and efficiency of the judicial system, not with its effect on the underlying substantive rule in issue. Torts theorists, on the other hand, focus on the effect of application of the rule in issue on behavioral, cultural, political, societal, and other goals on which the rule is founded. At bottom, the procedure enables the substance; it gives purpose and promise to the goals the substance seeks to accomplish. To enable the goals of the tort responsibility rules to operate in the context of the mass produced harms of the Twentieth and Twenty-First Centuries, the class action, or some reform of the adversary system as it is currently constituted, must be available.
Rule 23 of the Federal Rules of Civil Procedure, permitting class actions, forms the basis for this Article's analysis of the mass tort class action. This Article focuses on litigation and not settlement classes because tort responsibility rules are likely to be fully evaluated in public litigation and not through private settlement. Even though a significant number of civil actions are settled, situations often exist where settlement only comes after determinations by the judicial system of responsibility-the asbestos and Dalkon Shield litigation history speaks loudly on this point. The resolution of liability by virtue of the limited issue class, as attempted in Castano v. The American Tobacco Company and In re Rhone-Poulenc Rorer, Inc., is, therefore, an important component of effectuating tort responsibility values. Defendants often fear litigation class actions precisely because the extent of the harm caused by the allegedly tortious conduct is so great. When one institutional defendant is opposed by one individual claimant, the extent of the defendant's failed responsibility can be masked in many ways-behind the victim's own contributory fault or lack of causation or the fact-quagmire of proximate cause. When an entire industry is opposed by substantially all those harmed by the defendants' failure of responsibility, that industry cannot so easily hide its irresponsibility behind individual causation and defenses that shift the focus from the defendants' irresponsibility. Defendants might be expected to staunchly oppose class actions on liability—the individualized adjudication model provides them with as many chances to escape responsibility as there are victims.
This Article proceeds, then, to advance the use of the litigation class action. Part I describes the goals of the device and provides a historical background on the use and underuse of class actions in mass torts cases. Then, Part II explores the recent court of appeals and trial court cases dealing with class certification in mass tort cases and identifies the rationales given for those holdings, both for and against certification, though most of those cases are against certification. Part III responds to the criticisms of mass tort class actions and identifies and explains the important reasons that support class action certification in the mass tort context. This Part argues that the appropriate use of the mass tort class action is consistent both with the goals of judicial system integrity and fairness to litigants-goals so often identified as reasons to deny class action certification. Part IV explains why the goals of tort law can be effectively pursued in mass tort cases through judicial aggregation methods like the class action. Further, in response to the proceduralists concern about judicial integrity, Part V explores some basic tenets of the concept of judicial integrity and concludes that any loss of judicial integrity resulting from mass tort class actions comes not from the use of the class action method, but rather, from the unreasonable and unnecessary rejection of the class action method resulting from an overly aggressive commitment to the individualized litigation model. Part V proposes the increased use of the limited issue class action as a way to balance the substantive tort and procedural integrity concerns.
Mary J. Davis, Toward the Proper Role for Mass Tort Class Actions, 77 Or. L. Rev. 157 (1998).