Development in the Procedural Means for Resolution of Mass Tort Litigation in the United States

Abstract

Any understanding of the American judicial system’s views about mass tort litigation must appreciate that the judicial system’s attitudes have changed over time. The receptivity of American courts to innovative procedures, as well as the expansion of evidentiary and substantive tort law, has varied over the past twenty five years. In addition, any appreciation of the problems of mass tort litigation must take into account the structure of the American legal system, which includes independent federal and state court systems. Mass tort litigation in the United States has been additionally complicated by the intersection of the dual-court system of federal and state courts, with overlapping and concurrent jurisdiction.

This paper is divided into three parts. Part I sets forth a general discussion of the time-frame in which mass tort litigation developed in the United States and the ways in which the American legal system has adjusted to this new litigation phenomenon. The second section canvasses the variety of procedural means for possibly resolving mass tort litigation. This discussion is intertwined with the temporal framework suggested in Part I. The past portion of the paper contains some concluding remarks concerning the development of procedural means for resolving mass tort litigation in the United States, as these procedural means have evolved over three decades. These remarks also reflect on the possible consequences of the World Trade Center Victims’ Compensation fund for resolution of mass tort claims in the future.

Keywords: mass tort litigation, United States mass tort litigation, Rule 23, comparative procedure, class actions, multidistrict litigation, settlement class, World Trade Center Victims' Compensation Fund