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The Crazy Quilt in the Courts

'Mass tort' cases feature products like asbestos, many plaintiffs, missing defendants, and shaky justice

As the plane taxied into takeoff position, the judge began to think about lawsuits. This, of course, was not an unusual use of his time, especially since the flight was taking him to a meeting of the Mass Torts Litigation Committee.

Sponsored by the federally supported State Justice Institute, this group - too loosely assembled to be called an organization - meets three or four times a year and gives the 20 state trial judges who belong an opportunity to discuss problems and compare solutions.

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Federal judges regularly assemble for this purpose; they even have a well-funded Federal Judicial Center to coordinate research, training, and informational convocations.

State judges, by contrast, have no organization - not even a format - that permit judges from, say, Massachusetts to exchange thoughts with judges from the West Coast on difficulties they all share. The National Judicial College offers superb topical instruction, but it was not designed to stimulate unified approaches to collective problems. The same is true of the superbly organized National Center for State Courts.

The Mass Torts Litigation Committee started in 1990 as the Asbestos Litigation Committee. The lump of lawsuits spawned by the long-term effects of industrial and commercial asbestos is still far from dissolution, and the spectrum of broad-gauge litigation has expanded beyond the courts' ability to service it fairly and efficiently.

A "tort" is wrongful conduct that harms someone - negligently causing an injury, for instance, or marketing a harmful product. A "mass" tort is wrongful conduct that harms large numbers of people through contact with a particular product: lead paint, silicone, or tobacco.

A useful paradigm?

The characteristic of a "mass tort" is that, although each injured person's story is of course in some ways unique, all individuals share a common experience: contact with or use of the substance that is said to have caused the injury.

As the judge was painfully aware, litigation involving any such collection of claims strains the judicial system terribly. Besides his regular general docket of 750 cases, he was responsible for all the 650 asbestos-related suits in his state; another judge managed the silicone-implant litigation. The "tobacco" suits did not yet require special handling because, so far, not many had come to actual trial. Indeed, few had even been filed, a recognition by the lawyers, perhaps, that so far, nationwide, plaintiffs had generally fared poorly.

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Lead-paint poisoning, oddly enough, did not afflict the courts the way the other mass torts did. In the latter the prospective defendants were a limited number of companies that had produced the offending product; the plaintiffs were people who had come in contact with the article soon after it left the manufacturer. A lead paint case, on the other hand, typically arose when a child chewed on a surface in a rented apartment that had been coated years before with paint from a manufacturer by now cloaked in anonymity, leaving only the landlord as a target for litigation.

This was not to suggest that someone injured by asbestos, for example, would always be able to find the correct defendant. In many cases - where exposure (perhaps during youthful employment in a shipyard) preceded the onset of toxic symptoms by several decades - tagging the correct defendant often proved impossible.

What it all really came to, therefore, was the systemic inability of the courts to deliver justice in cases of mass tort fairly, promptly, and inexpensively. A legal structure that took as its paradigm a simple suit against a single defendant for direct personal impingement on a single plaintiff's rights would in a very real sense choke on asbestos-type litigation.

'Fractionated liability'

The delay and the cost (67 cents of every dollar available to pay for asbestos injuries goes to legal fees and expenses) condemn the process. So does the unfairness of a fractionated liability, where damage awards in easy-damages states can drain a defendant's ability to meet judgments in stricter jurisdictions.

The problem exceeds the capacity of the trial courts, state and federal (which in this area have to apply state law). It is, the judge realized, a national dilemma, requiring a national solution. That solution would entail political considerations: Who should get redress? Who should contribute to the money pool (and how much)? What mechanism should ensure that relief is available exclusively to those who warrant it?

The only institution capable of dealing with these issues and creating a framework of justice was, the judge realized, Congress, which has generally shown a disinclination to confront the difficulties. Until the legislators began to address the question, the courts would have to continue their crazy-quilt methods. "Maybe," the judge thought, "I'll pick up some useful ideas at the meeting."

* Hiller B. Zobel sits on the Massachusetts Superior Court.

The problem exceeds trial courts' capacity. It requires a

national solution.

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