Chapter

Regulating Development Indirectly

in Mass Torts in a World of Settlement

Published by University of Chicago Press

Published in print October 2007 | ISBN: 9780226567600
Published online March 2013 | e-ISBN: 9780226567624 | DOI: http://dx.doi.org/10.7208/chicago/9780226567624.003.0003
Regulating Development Indirectly

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This chapter draws a conceptual connection between two developments previously seen as separate by scholars: the Supreme Court's landmark 1993 evidentiary decision in Daubert v. Merrell Dow Pharmaceuticals, Inc, and the ongoing controversy over whether certification of nationwide class actions in the mass tort area exerts inappropriate pressure upon defendants to settle. Both Daubert and Rhone-Poulenc Rorer, Inc. raise serious concerns of institutional capacity and legitimacy when seen as vehicles to regulate the development of mass tort litigation. The silicone gel breast implant litigation shows one avenue for amplification: inaccurate information provided by lawsuits at the immature stage. The Court's decision in Daubert undoubtedly focused the attention of both judges and lawyers on the importance of scrutiny for expert testimony. Both Daubert and Rhone-Poulenc regulated the transition from a litigation stage focused on the exploration of claim merit to one directed predominantly toward comprehensive settlement.

Keywords: mass tort; Daubert; Rhone-Poulenc Rorer; Supreme Court; institutional capacity; legitimacy; tort litigation; settlement

Chapter.  10884 words.  Illustrated.

Subjects: Company and Commercial Law

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