COMPLEX LITIGATION
Jump to full article: Law.com, 2008-04-14
Author: Linda S. Mullenix
Intro: The McLaughlin decision represents another chapter in the convoluted history of tobacco mass tort litigation. In addition, the McLaughlin decision represents another landmark reversal in Weinstein's controversial history as the judicial King of Mass Torts.
The McLaughlin decision is significant in several respects. In the narrowest reading, the 2d Circuit has curtailed the utility of civil racketeering claims as a basis for classwide mass tort relief.
In a conventional application of class action principles, the court held that too many individualized issues defeated the predominance requirement for certification of a civil Racketeer Influenced and Corrupt Organizations Act (RICO) claim. The court concluded that the proposed smokers' class suffered from "an insurmountable deficit of collective legal or factual questions." McLaughlin, 2008 WL 878627, at *1.
In a broader constitutional dimension, the 2d Circuit dealt a blow to aggregate fluid-damages models for economic harms, often asserted in class litigation. The court held that the fluid recovery Weinstein approved offended the Rules Enabling Act, 28 U.S.C. 2072(b), as well as the due process clause.
Significantly, the 2d Circuit issued a sweeping policy statement that "not every wrong can have a legal remedy, at least not without causing damage to the fabric of our laws."
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