New Beisner/Miller Monograph Is Compelling Reading
John Beisner and Jessica Miller have published an excellent new monograph with the Washington Legal Foundation entitled: "LITIGATE THE TORTS, NOT THE MASS: A Modest Proposal for Reforming How Mass Torts Are Adjudicated." They, along with Professor Richard Nagareda of Vanderbilt Law School, do a great job of describing the difficulties presented by mass torts: because personal injury cases generally are not aggregable into class actions, there are tremendous problems coordinating hundreds (or even thousands) of state and federal tort cases for discovery and trial, as well as effectively buying global peace if (and when) the time comes to actually settle them.
Beisner and Miller propose the following solutions:
1. Require only minimal diversity for federal jurisdiction over mass torts in which there is an MDL proceeding.
2. Improve case management by: (a) expanding the use of fact sheets, (b) requiring all claimants to comply with Lone Pine orders, (c) advancing discovery on randomly-selected subsets of individual claims and then having single-plaintiff bellwether trials, and (d) imposing fee-shifting on counsel who file meritless or fraudulent claims.
3. Effectively eliminate American Pipe tolling of statutes of limitations in mass tort cases.
4. Promote global resolution of cases by: (a) loosening Rule 23's certification requirements for settlement classes, (b) clarifying the ethics rules to make it clear that settlement provisions encouraging client participation and discouraging cherry-picking do not conflict with the attorney's ethical obligations, and (c) mandating pre-suit disclosures by plaintiffs' counsel of the potential conflicts that may arise from representing multiple plaintiffs.
