Individual Action and Collective Responsibility: The Dilemma of Mass Tort Reform
During the past two decades we have witnessed a series of large-scale accidents almost unprecedented in their frequency and scope: the collapse of the Buffalo Creek dam; the MGM Grand Hotel fire; the fall of the skywalk at the Hyatt Hotel in Kansas City; the asbestos "crisis"; thousands of tort claims for injuries allegedly caused by such drugs as Bendectin and DES; suits by servicemen and their families for damages resulting from diseases allegedly caused by exposure to Agent Orange in Vietnam; and other disasters so noteworthy that the names of the places they occurred have come to signify the events themselves - Love Canal, Three Mile Island, Bhopal. Injuries on this scale occurred in the past, although less often and usually with less impact; however, only recently has the legal system become preoccupied with mass injuries and the problems posed by the litigation they engender.
Notwithstanding the burgeoning legal literature on the subject, basic issues remain unresolved. Are "mass" torts qualitatively different from "traditional" accidents, or are they only quantitatively different? What are the legal characteristics of mass torts? Are the legal issues posed by mass torts independent of each other or are they connected in a way that clarifies the concept of a mass tort itself? Without answers to these questions, the search for solutions to the perceived problems of mass tort litigation is doomed to be without direction.
I maintain that the "mass tort" is not a single, unitary phenomenon, but a name given to a series of very different kinds of accidents posing a cluster of different legal problems. The only obvious link between all these accidents is the large number of people injured in each. As a consequence, proposals to solve "the" mass tort problem ultimately target only individual features of the cluster of issues that characterize mass tort litigation, and leave the other features untouched. Much of the tort reform legislation enacted state-by-state during the past two years reflects this ad hoc approach.