Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
prompt fashion. See Samuel Issacharoff & John Fabian Witt, The Inevitability of Aggregate
Settlement, 57 VAND. L. REV. 1571 (2004).
stated:
Amchem and Ortiz dramatically changed the landscape for mass torts. As one author
The Amchem and Ortiz decisions effectively brought an end to attempts to use class
actions to craft broad global settlements of asbestos cases and to resolve future
asbestos claims where no injury was manifested or suit filed. Meanwhile, the
multidistrict litigation (MDL) mechanism has come to the fore as a possible way to
consolidate asbestos cases for pretrial resolution, whether by settlement or by
remand for trial. The 1968 Multidistrict Litigation Act created the Panel on
Multidistrict Litigation (Panel) with the power to transfer cases with “common
questions of fact” to a single federal judge “for coordinated or consolidated pretrial
proceedings.” “In contrast to the stringent rules that govern class actions, MDL is
a looser and more flexible structure allowing for transfer and consolidation based
on pragmatic considerations.” Also, unlike class actions where the named plaintiffs
are the only formal party and are in a fiduciary capacity to represent the absent class
members, every plaintiff in an MDL has taken the action to file suit. Thus the issue
of adequate representation of absent persons—including those who may not have
even known of the class action until notice is given upon settlement—is lessened in
MDLs.
Edward F. Sherman, The Evolution of Asbestos Litigation, 88 TUL. L. REV. 1021, 1031-33 (2014).
However, multi-district litigation (unlike a class action) cannot bind all parties in the relevant
class and thus does not prevent multiple trials arising out of the same mass tort. In an MDL, only
pre-trial proceedings are consolidated. The MDL is thus a far less efficient vehicle for quickly
settling a large number of cases, even if it may offer greater due process protections.
So what was the result? Aggregation has continued. But the aggregation we see after
Amchem and Ortiz is aggregation that happens, as Professor Howard Erichson has described it,
informally rather than formally. Howard M. Erichson, Informal Aggregation: Procedural and
Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381
(2000). Mass tort litigation no longer happens through Rule 23 class actions. But the economies
of scale, and the imperatives of coordination, mean that it still happens. Only now it happens
through the practices of lawyers who develop portfolios of thousands of claims. It happens
through networks of plaintiffs’ representatives who coordinate the actions of their claimants. And
where the Rule 23 aggregation happened under judicial supervision, informal aggregation after
Amchem and Ortiz happens entirely in private. See also Elizabeth Chamblee Burch, Monopolies
in Multidistrict Litigation, 70 VAND. L. REV. 67 (2017).
3. The Vioxx Settlement
A settlement involving the painkiller Vioxx highlights some of the challenges of litigating
mass torts without class actions. The drug was approved in 2000 and quickly became one of
pharmaceutical giant Merck’s popular products. Four years later, however, Merck pulled Vioxx
off the market when a study concluded that users had an increased chance of stroke or heart
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