Skip to main content
Building a Better Mousetrap: A New Approach to Trying Mass Tort Cases
Texas Tech Law Review (1998)
  • Richard O. Faulk
For many years, both state and federal courts have struggled with the extraordinarily difficult problems raised by mass tort litigation. In an effort to resolve these controversies, the courts have resorted to increasingly creative procedures -- with mixed results. Courts have tried class certification in various forms, consolidation on a "controversy by controversy" basis or on the basis of "common issues," and bellwether trials with smaller groups of plaintiffs selected by varying procedures. These creative techniques have been employed in the interest of achieving results and ending the controversies expeditiously. Unfortunately, in pursuing those goals, each technique has collided, in one way or another, with the constitutional requirements of due process. As a result, no single solution has emerged as the "tool of choice" for resolving mass tort controversies. More often than not, such controversies have been managed through protracted proceedings, resulting in lengthy delays and massive settlements prompted by the general uncertainties of litigation, including the specter of collateral estoppel raised if defendants lost early trials of "test cases." Recently, the Fifth Circuit in In re Chevron U.S.A., Inc. faced yet another innovative trial plan -- the concept of a bellwether trial in which certain dispositive issues would be tried on behalf of all remaining plaintiffs in a "unitary" format. Once again, as it did many times during the protracted asbestos controversy, the Fifth Circuit found that a creative plan adopted by a district court to expedite mass tort resolutions was inappropriate and granted a writ of mandamus to correct the error. In the process of doing so, however, the Fifth Circuit, for the first time in American jurisprudence, decided what procedural safeguards are necessary for such a trial to have a dispositive effect. Specifically, the Fifth Circuit held that, under appropriate circumstances, a trial court may try a bellwether trial of properly selected "representative" plaintiffs and use the results of that trial to resolve common issues alleged by the remaining mass of plaintiffs. Although the Fifth Circuit did not say that a trial court must use such a format to resolve mass tort cases, and did not even decide that the format was necessarily appropriate in the Chevron case, it generally recognized the viability and utility of such a plan, provided, of course, that the plan's structure satisfies the requirements of due process. This article traces the origins of the Chevron mandamus controversy, analyzes the Fifth Circuit's opinions, including the special concurrence by Judge Jones, and evaluates the impact and significance of the Court's ruling on mass tort litigation generally. The article addresses some of the thorny problems raised by Judge Jones' concurrence and discusses the circumstances under which a bellwether "unitary" trial may or may not be effective to resolve particular mass tort controversies.
  • mass torts,
  • trial,
  • bellwether,
  • complex litigation
Publication Date
Citation Information
Richard O. Faulk. "Building a Better Mousetrap: A New Approach to Trying Mass Tort Cases" Texas Tech Law Review Vol. 29 Iss. 3 (1998)
Available at: