About Mass Torts
The Rise of Mass Torts
One of the predominant themes in civil litigation over the last 50 years is the rise of mass tort litigation. To get a sense of the scale of mass tort litigation in the United States, it is helpful to consider the main means of aggregating tort suits—federal coordination through the Judicial Panel on Multidistrict Litigation (“JPML”). Between October 1, 2019, and September 30, 2020, 231,495 cases were consolidated through JPML proceedings. As of April 15, 2019, there were 462,142 active products liability cases consolidated into 68 separate multidistrict litigation proceedings, which constituted between 92% and 95% of all active MDL filings.[1] At the same time, these numbers can be deceptive, since a large percentage of these cases were included in a single MDL, the 3M Combat Arms Earplugs litigation.[2] There are also consolidations at the state level, with California, New Jersey, Texas, New York, Pennsylvania, and others having procedural mechanisms that mirror federal multidistrict litigation. Although state-level statistics are limited, it is likely that the number of state-level proceedings approach those at the federal level.
Introducing Mass Torts
These pages provide an overview of the law of mass torts—products liability cases that are consolidated by the hundreds or thousands for pretrial or trial purposes. These consolidations usually involve drugs or medical devices but can also involve large-scale toxic exposures and mass disasters. You will find a discussion of the main issues that arise in mass tort litigation, both in general terms and in the specific context of mass torts, where there is often a “mass effect” that alters the doctrine and sometimes smooths out its rougher edges. There are also extended discussions of recent decisions where courts addressed the topic. Finally, I will attempt to distill the various threads of the doctrine and restate the law on that topic.
As of October 15, 2020, there were 59 coordinated product liability proceedings pending in federal court. There were also dozens of similar proceedings in state courts. Since each mass tort regularly involves some or all of the topics covered by this project during its lifespan (often multiple times), the issue will be one of selection rather than scarcity.
[1] The increase in mass tort case numbers has been attributed to a number of factors. One suggestion, raised in the 1970s by Judge Gerhard Gesel of the U.S. District Court for the District of Columbia, was that public and private institutions were no longer serving the social need for redress of grievances as they had in the past. See Victor E. Schwartz et al., Guide to Multistate Litigation § 1.1 (1985 & Supp. 2021). I explore this explanation further in Patrick A. Luff, Risk Regulation and Regulatory Litigation, 64 Rutgers L. Rev. 173 (2011). See also generally Robert A. Kagan, Adversarial Legalism.
[2] In re Combat Arms Earplug Products Liability Litigation, MDL No. 2885.