Vol. 5 No. 6 (June, 1995) pp. 173-175

INDIVIDUAL JUSTICE IN MASS TORT LITIGATION: THE EFFECT OF CLASS ACTIONS, CONSOLIDATIONS, AND OTHER MULTIPARTY DEVICES by Jack B. Weinstein. Evanston, Illinois: Northwestern University Press, 1995. 367 pp. Cloth

Reviewed by Linda S. Mullenix, School of Law, University of Texas

For almost two decades Judge Jack B. Weinstein, senior federal judge in the Eastern District of New York, has presided over many of the landmark mass tort cases involving Agent Orange, DES, asbestos litigation, repetitive stress injury, and other environmental toxic torts. Not only has Judge Weinstein written numerous landmark decisions in these cases, but during this period he also has produced a prodigious body of academic literature describing and analyzing the problems relating to complex mass tort litigation. In INDIVIDUAL JUSTICE IN MASS TORT LITIGATION, Judge Weinstein has now synthesized these many articles into a comprehensive book that not only documents the most prominent features of mass tort litigation, but also embodies Judge Weinstein's particular views concerning the most fair and efficient resolution of these massive litigations.

To scholars already familiar with his previous articles on mass tort litigation, Judge Weinstein's compilation of those writings forges no new ground. But the book does a very fine job of explaining the phenomenon of mass tort litigation to non-legal academic audiences and to the general public. Judge Weinstein begins by describing his first judicial involvement in a proto-typical mass tort case in the early 1970s concerning children injured by defective blasting caps manufactured by many different manufacturers. This relatively simple case embodied many of the attributes of the future massive mass tort litigation that Judge Weinstein would handle in the 1980s and 1990s. In addition, Judge Weinstein's basic approach to supervising that case, as a managerial judge, also foreshadowed many of the innovative techniques he would implement on a larger scale in increasingly complex mass tort cases.

The blasting cap litigation involved problems relating to the ability of federal courts to join multiple injured claimants residing in different states in an aggregate litigation; problems relating to consolidation of multiple claimants with different individual injuries into one case; problems with identification of the multiple defendant manufacturers; problems with substantive tort law standards relating to causation and liability; and problems in determining the relevant applicable state law that applies to these claims. As Judge Weinstein documents, all these issues would resurface on a grander scale in the Agent Orange litigation, the asbestos cases, DES litigation, the repetitive stress injury cases, the LILCO atomic plant litigation, as well as other toxic tort cases on Judge Weinstein's docket in the last twenty years.

Judge Weinstein's book not only describes these various mass tort cases, but he describes the complicated jurisprudential, procedural, and substantive legal issues raised in attempts to resolve these cases in the state and federal court systems. At the jurisprudential level, Judge Weinstein identifies the inherent tension in all mass tort

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litigation between the traditional aspirations of individualized justice versus the systemic need for fair and efficient disposition of hundreds if not thousands of similar claims. At the procedural level, he describes the limitations of federal jurisdictional and procedural rules that inhibit the efficient joinder and consolidation of tort claims in a single federal court. In addition, judicially-fashioned rules such as preclusion doctrine have not functioned effectively to prevent relitigation of similar issues and claims in multiple, repetitive lawsuits. With regard to substantive tort law, Judge Weinstein documents how mass tort litigation has challenged and expanded theories of tort causation, liability, limitations, defenses, and remedies.

Against this descriptive backdrop surveying the various dimensions of novel problems raised by mass tort cases, Judge Weinstein weighs and assesses the efficacy of various reform proposals that have been advanced by organized law reform groups in the last decade, such as the American Bar Association, the American Law Institute, and Congress. Central to these reform initiatives is a proposed Congressional modification of the federal multidistrict litigation statute and that includes a scheme of federalized applicable law. Not only is Judge Weinstein somewhat doubtful about the ability of these reform proposals to effectively resolve mass tort cases, he further believes that it will be difficult to generate political support for them. Moreover, contrary to proponents of federal-state intersystem judicial cooperation, Judge Weinstein concludes that "[i]t seems improbable that, absent national legislation, voluntary cooperation among the state and national judicial systems can streamline disaster litigation."

Judge Weinstein's book is filled with his many different ideas and proposals for handling mass tort cases, largely drawn from in his extensive experience in supervising these massive mass tort litigations. Most of these proposals are anchored in the concept of enhanced managerial judging as well as a heightened sense of professional responsibility grounded in communitarian ethics. He endorses what he calls "administrative-procedural" approaches to mass tort cases, which involve consolidation of cases before a single judge, applying a single substantive applicable law, structuring attorney committees on both sides of the litigation, requesting and receiving prompt and effective scientific research on the underlying scientific issues, and supervising and determining attorney fees "using a relatively fixed and simple criteria for compensation. "

In addition, Judge Weinstein also endorses recourse to various alternative dispute resolution auspices in order to avoid litigation where possible, as litigants recently did in the Pfizer Heart Valve settlement and the Silicon Breast Implant settlement. He favors use of administrative models that use so-called "grid" claim valuation systems, with internal appeals to special masters or other judicial "surrogates."

Central to Judge Weinstein's proposals for more effective resolution of mass tort litigation is the role of the judge. Judge Weinstein, as he has extensively written in many articles, advocates a comprehensive role

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for the judge in both managing and structuring the litigation, supervising attorneys and attorney fees issues, and overseeing the attorney-client relationship. Judge Weinstein firmly believes that mass tort cases have dramatically changed and challenged the attorney-client relationship, and that professional responsibility rules modeled on the one-to-one professional relationship are woefully inadequate for modern mass tort cases involving thousands of claimants and future claimants (as in latent injury mass tort cases). Mass tort cases, Judge Weinstein argues, requires new ethical rules and heightened standards of professional conduct that include lawyers and judges assuming new roles as communicators and educators.

Judge Weinstein's book is an excellent introduction to the substantive and procedural legal issues involved in mass tort litigation as they have developed during the last twenty years. It also is an excellent, understandable explanation of the philosophical debate that has surfaced at the end of the twentieth century relating to the competing demands of individual justice and the larger societal need for a resolution of mass toxic torts, defective products liability litigation, and environmental disasters. Finally, Judge Weinstein's book correctly focuses on the difficult issues of professional responsibility that also have surfaced in these cases. As a major proponent of enhanced managerial judging in mass tort litigation, Judge Weinstein's actions and proposals are provocative flashpoints for both the academic and litigating communities.