Mass Torts and Class Actions: Facing Increased Scrutiny


The topic of mass torts and class actions is the subject of lively debate in academic, judicial and workshop circles.  The debate provokes extremes.  Some argue that, without certification, our judicial system cannot function.  These voices argue that mass tort actions are, by virtue of size alone, unmanageable outside the class context.  Others say with equal force that there is no crisis at all, and that those few instances of real paralysis or breakdown are the result, not the cause of certification.  For these critics, mass torts cannot be shoehorned into a Rule 23 setting, absent judicial contortion of the worst sort.
The subject is blessed with considerable work product.  Two major law reviews each conducted a recent symposium, and each devoted an entire issue to this area of law.  Within the last year and a half, the Sixth and Seventh Circuits addressed the subject and took the extraordinary step of granting mandamus to decertify mass tort classes.  The Sixth Circuit decertified a class consisting of between 15,000 and 120,000 purchasers of penile prostheses, stating that "the economies of scale achieved by class treatment are more than offset by the individualization of numerous issues relevant only a particular plaintiff."  The Seventh Circuit (Chief Judge Posner) concluded that a class of possibly 20,000 HIV-positive hemophiliacs could not withstand scrutiny under Rule 23(b)(3), because the order "so far exceed[ed] the permissible bounds of discretion in the management of federal litigations to compel us to intervene and order decertification.
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