Abstract

This article uses one of the high profile mass tort cases of recent decades, the complex silicone gel-filled breast implant products liability litigation, to evaluate summary adjudication measures. Recognizing that not all claims filed are complex tort claims (just the most interesting ones), where commercial claims present the opportunity for use of summary proceedings, those will be discussed as well, particularly regarding mechanisms by which security for a creditor-plaintiffs claim can be obtained prior to a favorable verdict.

While preparing this Report, it became clear that the author has a particular view of what constitutes a "summary adjudication" procedure, but that others, with different backgrounds and experiences, may have an entirely different view. For example, alternative dispute resolution mechanisms like arbitration and mediation, so popular in this country, are not "summary adjudication" procedures to many because they do not "adjudicate," in a judicial sense, the rights and obligations of the parties; they, instead, resolve the dispute without a legal imprimatur on the result. Similarly, many trial-annexed procedures like summary jury trials and discovery hearings are not adjudications because they are mechanisms which enable the parties to prepare and evaluate the claims, not dispose of them, though they do impact the ultimate disposition of the claims. A full and complete report, however, needs to include a broad range of summary procedures that not only adjudicate the rights and obligations of the parties, but that also significantly affect the relative positions of the parties in other critical, though tangential, ways. Consequently, this Report explains a broad range of available procedures that either (1) affect a party's rights prior to a full-blown adjudication by jury trial, including obtaining preliminary orders which affect a party's conduct or which provide security for payment of any ultimate judgment that might be awarded; (2) provide a strategic advantage that significantly affects the rights involved in the dispute, through pre-trial investigation and discovery; or (3) summarily disposes of the claim as a final determination of the legal rights and obligations involved.

Consistent with this definition of the summary proceedings to be explored, the article will proceed as follows. Part I will set out the mass tort framework for discussing the procedures and explain briefly the typical full-blown trial process by which to compare the summary proceedings to be explained. Part II will elaborate upon the pre-claim, or provisional, mechanisms by which claimants can obtain either (1) security for the claims in issue or (2) prevent another party, typically a defendant, from engaging in conduct which is the subject of the claim. Part III will discuss the pre- and post-filing mechanisms by which parties obtain information to aid in prosecuting their claims and defenses and thereby obtain a possible strategic advantage at later adjudication proceedings. Part IV discusses post-filing procedures used to test the legal sufficiency of the plaintiff’s claims. These are the "Rule 12(b) motions" found in the Federal Rules of Civil Procedure (the "Federal Rules") which govern the civil process in all United States federal courts. Finally, the summary judgment proceeding under Rule 56 of the Federal Rules, which tests the legal basis of plaintiff’s claims after full development of the facts has taken place through pre-trial discovery, is discussed in Part V. Additional non-traditional mechanisms to manage the claims process are discussed in Part VI.

Document Type

Article

Publication Date

1998

Notes/Citation Information

American Journal of Comparative Law, Vol. 46, Supplement (1998), pp. 229-259

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