Life After Amchem: The Class Struggle Continues, page 14

Life After Amchem (continued)

Page 14

Thus, state courts recognized early -- and have steadfastly remembered -- what the federal courts appear frequently to forget: that modern society increasingly pits mortal humans of limited means against large corporations of multi-national influence and perpetual existence. Unassisted by procedures that allow individuals to effectively aggregate their claims and try to resolve common issues in a unitary fashion, the battle remains fatally unequal. Justice cannot result from unequal access to the mechanisms of justice. Justice cannot result from procedures that are priced beyond the reach of individuals. Justice -- including the right to an individual jury trial -- is a cruel joke to those who will be worn down and worn out, in pocketbook and in spirit, by the endless pitched battles of a war of attrition funded by corporate defendants who can afford to spend millions for a defense and not a penny for compensation.⁵³

Why am I talking about consumer law in a mass tort symposium? Because we are all consumers. The products that injure us, as well as the products whose virtues are misrepresented, or for which we are overcharged, are predominantly mass-produced, mass-marketed, and fungible. This is true in the area of pharmaceutical and medical devices, the two main arenas in which the controversies of mass tort litigation -- with the notable exception of the asbestos disaster -- have been waged. We no longer take a prescription devised by our family doctor to the local druggist who concocts and dispenses it. The medical devices with which we are implanted are no longer the custom-designed, handcrafted prostheses of the polio era. Drugs are mass-marketed not just to doctors, but directly to the public in full-page advertisements that run in People, Time, and other general interest magazines. Direct advertising of mass-produced pharmaceuticals may soon make the "learned intermediary" doctrine obsolete.⁵⁴ Over 18 million prescriptions for the popular "Fen-Phen" diet drug combination were written in 1996.⁵⁵ Between one and two million American women have been implanted with mass-produced breast implants.⁵⁶ When one size is touted as fitting all, and all are urged to become one size, it is little wonder that the first juncture at which manufacturer defendants recall the individuality of their customers is when they invoke it to oppose class certification.

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NOTES

⁵³ Of course, the federal courts were far from silent on this topic. Over 55 years ago, the Seventh Circuit held that

[t]o permit the defendants to contest liability with each claimant in a single, separate suit, would, in many cases give defendants an advantage which would be almost equivalent to closing the door of justice to all small claimants. This is what we think the class suit practice was to prevent.

Weeks v. Bareco Oil Co., 125 F.2d 84, 90 (7th Cir. 1941).

⁵⁴ The "learned intermediary" doctrine provides that a drug manufacturer is relieved of tort liability if adequate warning of the potential hazards of the product is given to the physician. See Jeffrey E. Grell, Restatement (Third) of Torts, Section 8(D): Back to the Future of the Learned Intermediary Doctrine, 19 HAMLINE L. REV. 349 (1996).

⁵⁵ See Jane E. Brody, Obesity Drugs: Weighing the Risks to Health Against the Small Victories, N.Y. TIMES, Sept. 3, 1997, at C1; Fen-Phen Study Sparks Concern: Experts Address Some of the More Common Questions, ORANGE COUNTY REG., July 16, 1997, at E1.

⁵⁶ See John Schwartz, Breast Implants Require Later Surgery, Study Finds; Follow-up Procedures Reported for Limited Problems, WASH. POST, Mar. 6, 1996, at A3. No one is sure of the precise number because none of the manufacturers kept track of who—or how many—received these devices.