What Do We Talk About When We Talk About Mass Torts?

Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation’s Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to “reform” tort law throughout the 1980s. There was concern that Americans “egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being.” The RAND report argued that the real risk of a torts “explosion” came from the world of mass torts. The report’s authors presciently focused on asbestos and the Dalkon Shield litigation, citing these as examples of how mass latent injury suits represented a new challenge to the tort system. The study concluded that “[m]ass latent injury torts are the most volatile world of tort litigation. Costs, dynamic legal environment, and the uncomfortable fit between these cases and the tort system conspire to make the number, outcome, and future costs of these suits highly uncertain.”