| The purpose of this study is to determine how courts have responded to the difficulties posed by mass numbers of latent injury cases. 'Toxic torts,' as they are often called, occur amidst disputed scientific and economic evidence and also consume large amounts of the legal system's resources. Participants may respond by streamlining and consolidating numbers of factually similar cases.; The study examines three legal innovations crafted during the period 1980-1988 that were designed to facilitate the treatment of three different types of personal injury suits. The first instance of mass injury involves Bendectin, an antinausea drug given to pregnant women. A judge responded to hundreds of claims of resulting harm by using the legal process to determine whether or not the drug caused birth defects. The second instance involves thousands of injuries caused allegedly by the Dalkon Shield, an intra-uterine birth control device. The manufacturer of the Shield is using federal bankruptcy laws to craft a compensation plan for women unable to bear children because of infections associated with the product's use. The third instance involves harms related to asbestos, linked strongly to cancer and respiratory illnesses. A group of manufacturers and insurers have developed a private institution for adjudicating asbestos claims outside of the formal courts. The origins, assumptions and operation of each legal response are presented in case studies. These reforms are discussed in the context of regulatory, legislative and administrative action pertaining to consumer and occupational toxic exposures.; One of the central findings was that plaintiffs' attorneys played a key role in determining the success or failure of an initiative. Because the American legal system generally eschews coercion in the mobilization, structuring and dismissal of personal injury cases, innovators must induce private attorneys to cooperate voluntarily in the new order. Innovations which lack the proper incentives will fail to meet initial expectations.; Another important finding was that the tension between centralized and decentralized resolution of cases mirrors an ongoing debate in tort theory. Whether tort promotes social goals or merely resolves individual disputes is an unresolved yet important issue in both the theory and practice of law. (Abstract shortened with permission of author.)... |
