Copyright (c) 1997 Baylor University
Baylor Law Review
COMMENT: Castano v. American Tobacco Co. and Beyond: The Propriety of Certifying Nationwide Mass-Tort Class Actions Under Federal Rule of Civil Procedure 23 When the Basis of the Suit Is a "Novel" Claim or Injury
49 Baylor L. Rev. 817
T. Dean Malone *
Mass-tort litigation has increased considerably over the last few years. 1 Because a mass-tort may prompt thousands of individual cases 2 and thereby result in extreme judicial management problems, some federal courts have encouraged the use of class actions to resolve such litigation. 3 However, courts have generally remained hesitant to certify large, product-based, mass-tort actions for class treatment. 4 Nevertheless, plaintiffs continue to use class actions to seek compensation for mass-torts. 5 Recently, plaintiffs have attempted to use class actions to recover for masstorts based on "novel," or new, claims or injuries. 6 One recent case, Castano v. American Tobacco Co., 7 provides a good basis for understanding some of the reasons why plaintiffs have chosen to do so.
Castano was the culmination of over forty years of products liability litigation against tobacco companies, during which time the tobacco companies never lost a case. 8 Thousands of tobacco company internal documents became available in 1994 9 and provided a basis for the assertion that tobacco is an addictive drug. 10 Plaintiffs' firms formed the Castano Plaintiffs' Legal Committee 11 and filed a nationwide class action against several tobacco companies to exploit this newly-found argument. 12 Instead of seeking damages due to smoking-related illnesses, as other plaintiffs had done, 13 the Castano plaintiffs sought compensation for the "economic losses [due to] the injury of nicotine addiction." 14 These losses included emotional distress and funds expended in efforts to stop smoking. 15
The approach in ...
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