Mass Torts—Maturation of Law and Practice

Mass tort litigation has been with us for about fifty years. This is dating the start from the MER/29 litigation in 1964. This field of law and practice has grown year after year, and it shows no sign of abating. At the same time, it can be said that this area of law and procedure has reached a mature stage; the practice is fairly standardized and earlier experiments have either become the model or have been abandoned. The term “mass tort litigation” (MTL), as used in this article, confines itself to product liability personal injury cases involving similar injuries from exposure to the same product and resulting in multiple claimants. “Multiple” may be as small as a hundred, but may also amount to 50,000, 100,000, or more. Thus, excluded from direct examination in this paper are consumer economic suits, often commenced in a class action format, and toxic tort lawsuits dealing with localized pollution. Mass tort litigation is as much a procedural topic as a substantive one. While there are some law issues specific to mass tort litigation, the greater area of development has been in the adaptation or invention of procedural mechanisms to the management of the cases in their organization, their development, and their disposition. The three phases just listed—organization, development, and disposition–form the three main sections of this article

Diseases of Obscure Etiology: Legal Aspects

The purpose of this note is to gather and analyze legal cases which have involved diseases characterized by the courts or medical witnesses as being of obscure etiology or in which the role of trauma is uncertain. Basic to this discussion is an understanding of the concepts of causation, precipitation and aggravation as they are used both legally and medically

The Expanding Liability of the Product Supplier: A Primer

Through the use of the question and answer format in this article, I hope to cover the main areas where product liability is expanding, both as to the imposition of liability and the admissibility of proof. This format is suggested by the type of questions which have been put to me when I have lectured on the subject. I practice as plaintiff\u27s counsel, and my answers are inevitably shaped in that light. Indeed, it is the plaintiff, through product litigation, that is causing the expansion in this area of the law. The thirty topics which are covered are divided into the following parts: strict liability, negligence, other forms of liability and parties, and proof. A good deal of space is devoted to the proof topics, since much of the expansion of the law in recent years has been little more than an expansion of the type of proof which courts will accept. In turn, that expansion of proof has given juries more leeway in determining the outcome, guided by only the broadest definitions of liabilit

Risk-Utility Analysis in the Failure to Warn Context

Elsewhere in this Symposium issue, Professor Mark Geistfeld presents an argument favoring the application of risk-utility analysis to the duty to warn doctrine encompassed by the Restatement (Third) of Torts. In addition, the comments and the reporters\u27 notes to the Restatement (Third) suggest altering the traditional duty to warn if the warning would cause information overload, if the danger is open and obvious, or if the danger applies to only a small percentage of potential customers. In response to Geistfeld and the Restatement (Third) comments and notes, Rheingold and Feinglass assert that applying a risk-utility analysis or altering the duty to warn in certain cases undermines the doctrine and does not reflect the application of the doctrine by the courts. Instead, Rheingold and Feinglass argue that the traditional duty to warn doctrine should remain the focus of the Restatement (Third). The authors point to the text of the Restatement (Third); the potential difficulties in determining the utility of a warning or the social cost of information overload ; the minimal cost of providing a warning even in marginal cases; and the competency of juries to apply the traditional doctrine

Honk against homophobia : rethinking relations between media and sexual minorities

The theory of “symbolic annihilation” or “symbolic violence” has been used in academic literature to describe the way in which sexual minorities have been ignored, trivialized, or condemned by the media. This article aims to de-center research from issues of media representation to consider the capacity for minority groups to proactively use new media and its various avenues for interactivity, social networking, and feedback to fight social exclusion. This work suggests that new media has become a space in which the nominally marginal in society may acquire “social artillery”—a term used to describe how sexual minorities utilize their expanding and more readily accessible social connections in digital space to combat instances of homophobia. The research draws on the results of an inquiry into the relation between media and a regional youth social justice group in Australia tackling homophobia. The research demonstrates that the group is becoming increasingly adept and comfortable with using a cross-section of media platforms to fulfill their own objectives, rather than seeing themselves as passive subjects of media representation. This article argues that this sets an example for other socially excluded groups looking to renegotiate their relation with the media in regional areas