No one knows mass torts like Brooklyn federal district court judge Jack Weinstein. In more than 40 years on the bench, he has presided over pioneering asbestos, tobacco and gun cases, playing a huge role in shaping the progress of litigation involving products that harmed millions. But in a provocative article in the inaugural issue of the Cardozo Law Review's online companion journal, de novo, Weinstein expresses his fear that mass tort litigation will not bring justice to the injured because of the judiciary's disregard for his favored vehicle, the class action.
Weinstein's article reads a bit like a book outline, with the judge sharing his thoughts on eight notable cases, from Agent Orange through Zyprexa. Some of what he writes seems guaranteed to give conservatives fits. In the DES cases, for example, the judge argues that the courts had to engage in "pragmatic modification of substantive law and reasonable interpretation of procedural law" to secure the settlement that Weinstein thought was appropriate. (The Drug & Device Law blog, which brought Weinstein's article to our attention, wrote "omg" -- that's Oh My God! for those not fluent in teenspeak -- in response to this sentence.)
But mostly the article reads as an impassioned defense of the class action as the best means of adjudicating mass litigation. "The problem of individual justice in disputes involving large masses of people is endemic in a huge heterogeneous population such as ours, where most people claiming to be injured are not in direct contact with those they believe have caused them harm," Weinstein writes. The Agent Orange litigation, for example, "established that class actions were useful in very complex cases that often involve political as well as economic and scientific issues. When settled, they provide a method of sound utilization of available funds, with minimal transaction costs, to assist persons who believe they were, or are, injured; they permit defendants to limit their exposure and get on with their productive work without huge continuing litigations hanging over their heads."
Weinstein acknowledges, with deep regret, a fact that is obvious to anyone who has followed mass tort litigation for the last 10 years: The tide has turned decisively against class actions. He seems particularly irked by the reversal of class certification for those who claimed personal injuries against tobacco companies. "My theory was that when you have such large numbers, you can, through surveys and statistical projections, determine, with sufficient accuracy for these purposes, what the total damages were and then distribute them on a fair basis," he writes. "This approach would have at least caused the defendants to pay their fair share of the huge damages fraudulently caused by the producers. It would compensate the injured to some reasonable and rational degree."
Weinstein's most fervent defense of the class action mechanism comes at the end of the tobacco passage, when he writes about how the appeals court overturned his class certification in the light-cigarette pricing controls case. "In effect, the manufacturers have gotten off practically scot free with brilliant lawyering. The courts, including some of the best judges on the intermediate appellate and Supreme Court, have been strongly influenced by what is our traditional assumption: that each individual plaintiff is entitled to control his own case and that each defendant is entitled to defend against individual plaintiffs. That rationale had more force in the era of the horse and buggy. It is not convincing today, where decisions affecting the lives of millions or billions of people are made by faceless corporations and others in this and other countries. An individual one-to-one responsibility is impossible to ascertain and compensate for."
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.