Volume 72, Number 1

April 1997

The Use of Mandamus to Vacate Mass Exposure Tort Class Certification Orders

Amy Schmidt Jones

In the early years following its adoption in 1966, courts and commentators generally regarded amended Rule 23 of the Federal Rules of Civil Procedure as an inappropriate device for mass tort litigation. This resistance stemmed from the conviction that plaintiffs seeking redress for serious personal injuries should maintain direct control over their claims and the perception that individualized issues of causation, liability, and choice of law rendered such suits too complex for unitary adjudication. With the onslaught of individual Agent Orange, asbestos, DES, and Bendectin cases in the 1980s, however, the “overwhelming need to create an orderly, efficient means for adjudicating hundreds or thousands of related claims” forced the courts to reconsider the feasibility of the mass exposure tort class action. The first successful certification of a mass exposure tort class action in 1984 ushered in a new era of class action litigation.