Understanding Mass Personal Injury Litigation

A Socio-Legal Analysis

by Deborah R. Hensler, Mark A. Peterson

The 1980s was the era of mass personal injury litigation. Hundreds of thousands of people sued scores of corporations for losses due to injuries or diseases that they attributed to catastrophic events, pharmaceutical products, medical devices, or toxic substances. The civil justice system has not responded well to the challenge of handling mass torts, and many innovations have been proposed to improve processing of these cases. This article examines the broader context in which these innovations must function. The analysis suggests that current proposals for improving mass tort processing are not promising because they do not deal directly with the uncertainties that flow from the factual and legal complexity of the cases, do not address the inherent conflicts of interest between attorneys and their clients in mass tort cases, ignore the fact the asymmetric risks facing plaintiffs' attorneys and defendants drive the litigation forward, and do not offer clear solutions to issues associated with future claimants-those who may discover sometime in the future that they were harmed by exposure to the product.

Originally published in: Brooklyn Law Review, v. 59, no. 3, Fall 1993, pp. 961-1063.

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