Mass Remedies For Mass Torts

ONE of the unfortunate byproducts of modern life, with all its ``miracles of science,'' is the presence of toxins and other hidden dangers that can silently wreak damage on people (and the environment).

These dangers have given rise to something previously unknown in legal history: the mass tort - injury to thousands of unknowing and scattered victims, sometimes with harm that appears only after many years. Mass torts have spawned a wholly new kind of huge and immensely complex litigation.

(Another kind of mass tort, such as a plane crash or industrial accident, also can involve many people; but it is a single event in which injury occurs immediately and the facts are similar for all the victims. The resulting litigation can be logistically complicated, but often the legal issues are straightforward.)

The grim roll call of products alleged to have caused mass torts - and which more than allegedly caused mass litigation - is familiar: Agent Orange, the Dalkon Shield, artificial-heart valves, various prescription drugs, silicone gel breast implants - and the grandfather of them all, asbestos.

During the decades when asbestos was widely used as a fire-retardant in buildings, brake linings, and warships, millions of workers were exposed to it. In the 1960s, it become publicly known that asbestos fibers are a potential health hazard. Starting in 1973, lawsuits came in blizzards.

In a 1993 law-journal article, Christopher Edley (now a Clinton administration official) and Paul Weiler, both professors at the Harvard Law School, wrote, ``The asbestos crisis is ... a Dickensian tale about the limitations of the traditional legal process.'' Some facts:

* More than 100,000 asbestos lawsuits are pending, and at least that many new suits could still be filed.

* Forty to 60 percent of suits are filed by people who do not have an asbestos-related disease. These suits clog court dockets, and many of these claimants actually recover money in ``batch settlements,'' reducing funds available for ill claimants.

* Asbestos litigation drove 18 corporations into bankruptcy, and dozens more face enormous liability exposure.

* More than $7 billion has already been spent on asbestos claims, of which 60 percent has gone to lawyer fees and legal costs.

Professors Edley and Weiler call on Congress to enact legislation that would take the ``asbestos crisis'' out of the tort system and compensate victims through an administrative process that will be free from the ``pathologies'' of lawyer-driven mass-tort litigation. They say the continuing desire of some plaintiffs and lawyers to punish companies for actions taken decades ago is an ``out-of-date morality play,'' and the focus now should be on fair compensation of victims.

In the absence of such a law, Edley and Weiler favor judicial activism to establish a similar no-fault, regulated recovery procedure through court-approved class-action settlements.

In Philadelphia today, a federal district-court judge will conduct a fairness hearing on a proposed settlement between 20 asbestos companies and lawyers representing plaintiffs. If the settlement is approved, the companies will establish a $1 billion fund, administered by the Center for Claims Resolution, from which all future claims against the companies will be paid.

A similar structure was used to settle the Agent Orange litigation, and last week the leading makers of silicone gel breast implants announced a settlement along such lines.

Some opponents of the proposed asbestos settlement call it a ``cram down'' that unfairly deprives victims of their day in court, provides inadequate compensation, and is too soft on the alleged corporate malefactors. If the deal is approved, it will probably face further legal challenges.

But to proponents like Edley, Weiler, and others, such arrangements are a sensible and equitable way to assist victims of mass torts and to ease the crushing load that mass-tort litigation has imposed on the nation's judicial system.

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