Aggregative Valuation of Mass Tort Claims
To date, Agent Orange, Dalkon Shield, and asbestos are the only cases in which there was simply no choice but to employ special claim processes. However, partly by osmosis, and partly because of the sense that gains could be had from employing special claim processes even when doing so was not an undeniable necessity, similar approaches have been adopted in a number of the smaller mass tort cases as well. Although there is much to be said for engaging in such experimentation, the time has come for a more conscious examination of the premises that lie behind the adoption of special procedures for processing mass tort claims. In our view, these premises are controversial and debatable. Accordingly, the move from employing special procedures when doing so is necessary to employing them whenever feasible is too important to escape careful analysis. In the following discussion, we analyze some of the obstacles to settlement of mass tort claims, and we propose a new mechanism-aggregative valuation of claims at trial-to help transform the process of adjudicating and settling mass tort claims.