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Georgetown Law Journal



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Dalkon Shield, Bjork-Shiley, Anchem, mass tort litigation, settlement, class action


In the past decade, settlement class actions have become increasingly popular in mass tort litigation, having been used successfully in cases such as the Dalkon Shield litigation, the Bjork-Shiley heart valve litigation, and the orthopedic bone screw litigation. Although the Supreme Court's opinion in Amchem has engendered some confusion over the continued viability of mass tort settlement class actions, it appears that such settlements remain a dominant approach to resolving mass tort lawsuits. With increasing frequency, plaintiffs and defendants come to court holding hands, and courts must launch their own vigorous inquiries into the merits of the parties' proffered settlement. In the world of mass tort litigation, at least, we have sneaked away from the traditional U.S. adversarial model of justice, and towards the inquisitorial model common in the civil law countries of continental Europe and, to a lesser extent, Latin America. We have turned toward inquisitorial justice not by design, but by necessity and ad hoc innovation. In what appears to be a moment of significance in the episodic evolution of the adjudicatory process, some judges have turned to devices that, despite short-term resistance, may gain widespread acceptance with time. Using a comparative perspective, this article examines two salutary trends in modem mass tort litigation: the use of court-appointed scientific experts and the use of settlement class actions with a vigorous inquiry into the merits of the settlement. Part I looks at court-appointed scientific experts, noting the growing use of such experts in mass tort cases, despite most judges' reluctance to use such experts. Part II addresses settlement class actions, which offer an appealing path out of the morass of inefficient and inconsistent mass tort litigation, but which raise troubling fairness issues, and thus should be permitted only if the court vigorously inquires into the merits of the settlement. Part III examines the similarities between these judicial devices and the inquisitorial justice model, then considers the barriers of judicial culture and structure that hinder U.S. judges from making regular and effective use of such inquisitorial tools. Although court-appointed experts and well-scrutinized settlement class actions can help courts reach just and efficient mass tort resolutions, their inquisitorial nature renders widespread and effective adoption in this country unlikely in the short term. Nevertheless, these recent trends in mass tort litigation may hint at an evolution toward greater use of inquisitorial tools within the context of the U.S. adversary system. Thus, while Part IV considers the possibility of legislative solutions to mass torts, it concludes with skepticism regarding the prospect of congressional intervention in this arena, and with hope that courts may adapt to make more effective use of less familiar approaches.