Article by Francis E. McGovern
Global mass tort settlements are an endangered species. The recent passage of the Class Action Fairness Act relegates to posterity the state class action settlement that is national in scope. The Amchem and Ortiz cases make federal mass tort settlements difficult, and the “Fen-Phen” experience suggests that they may be impractical as well. The recent decisions of In re Combustion Engineering, Inc. and In re Congoleum Corp. do not bode well for prepackaged bankruptcy mass tort settlements.
Notwithstanding these impediments, there is still a significant demand for procedural vehicles for resolving personal injury mass torts. The American Law Institute has commenced a project on aggregate litigation that contains provisions devoted to nonclass aggregate settlements. The Class Action Fairness Act, itself, was amended to exclude the settlement of nonclass action cases involving personal injuries.
The suggestion here is that a new state statute, modeled after a combination of Rule 23 of the Federal Rules of Civil Procedure and § 524(g) of the Bankruptcy Code, has significant merit for filling the current vacuum in mass tort settlement devices. It would then be possible to settle a personal injury mass tort on a statewide basis without recourse to a class action. There would be finality, if only state by state.
About the Author
Francis E. McGovern. Professor of Law, Duke University School of Law. J.D. 1973, University of Virginia; B.A. 1967, Yale University.
Citation
80 Tul. L. Rev. 1809 (2006)