Mass Tort Litigation

The fourth edition of this casebook reflects the rapidly changing legal landscape of mass tort litigation. This new edition also reflects the wisdom gained from teaching the text over many years and incorporates changes that hopefully render the subject of mass tort litigation more comprehensible to students.

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This fourth edition to the casebook reflects the rapidly changing legal landscape of mass tort litigation. This new edition also reflects the wisdom gained from teaching the text over many years and incorporates changes that hopefully render the subject of mass tort litigation more comprehensible to students. Consequently, this new casebook edition reorganizes the chapters—and the content of many chapters—to provide both a chronological as well as thematic approach to understanding the landscape of evolving mass tort litigation. The passage of time has also suggested that some decisional law is of subsidiary importance. In addition, some materials in the third edition redundantly explored mass tort concepts presented elsewhere in the text. These ancillary or redundant cases have been excised from this new edition. This new fourth edition integrates recent decisions setting forth new concepts in mass tort litigation in the revised text.

The introductory chapters have been reorganized to introduce students to the seminal cases in mass tort litigation and the jurisprudential debate that undergirds all policy debates about the wisdom of aggregating tort claims into group litigation. The following chapters have consolidated all the materials relating to ethical issues in mass tort litigation including client solicitation, the "first plaintiff" problem, adequacy of representation, fiduciary duties, and the aggregate settlement rule in class and non-class contexts. The chapter sets forth two substantial decisions where attorneys have been sanctioned for various professional misconduct in the settlement of MDL non-class aggregate litigation. The materials on class certification have been revised to focus on the recent departure of the timing of class certification from previous practice of back-end judicial class certification to courts' new role in provisionally certifying a mass tort settlement class at the front end of litigation. New chapters have been added addressing recent developments, as indicated below.

What's New in the Fourth Edition

This new fourth edition includes the 2018 amended Rule 23, with its extensive amendment of the Rule 23(e) settlement provisions. The chapter on modern decisional law relating to settlement classes after the Supreme Court's decisions in Amchem Prods. v. Windsor and Ortiz v. Fibreboard has added an excerpt from a 2020 Northern District of California decision, In re: Roundup Prods. Liab. Litig., to prompt a discussion of the role of "provisional certification" of settlement classes under modern practice.

An entirely new chapter has been added dealing with the "negotiation class", including the Sixth Circuit's repudiation of Judge Aaron Polster's certification in In re: National Prescription Opiate Litigation (6th Cir. 2020). Included is an excerpt from Judge Karen Nelson Moore's dissenting opinion focusing on the legitimacy of the negotiation class as a logical development of the settlement class concept, authorized by the class action rule's text and history of class litigation.

The chapter on innovative approaches to mass tort litigation has added a new subchapter presenting the emerging mass tort litigation theory of public nuisance. It includes an excerpt from the Oklahoma Supreme Court's decision in Hunter v. Johnson & Johnson (2021), rejecting the use of a public nuisance theory in Oklahoma state litigation over opioid harms. The Oklahoma Supreme Court decision does a capable job of setting forth the concept of mass torts as public nuisance. This decision might be contrasted with the national opiate MDL, also predicated on public nuisance theories, as resulting in harms to governmental entities. These materials afford a good opportunity to discuss emerging theories to support mass tort claims and relief; they can be used as a springboard to explore use of the public nuisance approach in other possible mass torts, such as gun violence and resulting injuries.

A new subchapter on MDL litigation has been added that explores the role of Lone Pine orders in resolving MDL litigation. This subchapter focuses on the Third Circuit's decision in Hamer v. Livanova v. Deutschland Gmbh (3d Cir. 2021), discussing a claimant's non-compliance with an MDL Lone Pine order in MDL litigation resulting from injuries from open heart surgery. The decision affords a good opportunity to explore the role of Lone Pine orders in resolving MDL mass tort litigation and the authority of an MDL judge to issue such orders.