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Mass torts are thousands of lawsuits
How class actions work
The class action rule lets a court aggregate claims so long as the law and the facts are common to all plaintiffs. If the court certifies the class, class counsel represents everybody who suffered that injury, and the class rep is there for everybody, like representative government.
How mass torts work
A mass tort is litigated as individual cases, just a lot of them. The system was built for one plaintiff suing one defendant, and it stretched to five plaintiffs in a car accident. The 3M Combat Arms litigation had 300,000 plaintiffs. Over 25 or 30 years, lawyers and judges developed shortcuts. Instead of interrogatories for each plaintiff, they created a plaintiff fact sheet of about 10 pages that holds the most important information.
Why one judge
Bellwether trials, where a dozen representative cases are tried, came out of the same problem. Filed all over the country, the cases are usually sent by a panel of seven judges, appointed by the Chief Justice, to a single federal judge. Putting them before one judge avoids inconsistent rulings from different circuits with different laws.
Why must class members share common questions?
Rule 23(a) requires that a class be so numerous that joining everyone is impractical, that members share legal or factual questions, that the representative's claims are typical, and that the representative can protect the others. In Wal-Mart Stores v. Dukes in 2011, the Supreme Court held that commonality requires a contention whose truth or falsity can be resolved for every class member in one stroke. Personal injury claims, which turn on each person's own exposure and medical history, often fail that test.
Why did Congress create a panel for scattered lawsuits?
In the early 1960s, a wave of antitrust suits over price-fixing by electrical equipment manufacturers landed in dozens of federal courts at once. Federal judges worked out an informal coordination plan, and the strain on the courts led Congress to pass 28 U.S.C. section 1407 in 1968. The statute created the Judicial Panel on Multidistrict Litigation, which can transfer cases with common facts to one district for pretrial proceedings. The panel's seven judges are named by the Chief Justice of the United States. Cases that do not settle are generally sent back to the courts where they were filed for trial.
How does a plaintiff fact sheet speed things up?
Every plaintiff answers the same set of questions about their injury, treatment, and exposure, which replaces separate discovery requests in thousands of cases. Defendants can then sort and test claims in bulk. Judges set the form and the deadline in a case management order. A plaintiff who never submits a sheet can face dismissal.
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