The Reexamination Clause: Exploring Bifurcation in Mass Tort Litigation

THE rise of mass tort cases has stretched judicial ingenuity and resources to their limits. Dockets across the country are flooded with claims against manufacturers of goods, like cigarettes and asbestos, that carry the capacity to cause mass injury. Resolving these cases individually could take decades, and prevailing plaintiffs often receive pennies for every dollar spent on litigation and transaction costs. In response, many district courts have separated a particular issue or issues for class treatment under Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure, while leaving individual issues for individual trials before different juries. This procedure, known as bifurcation,1 can streamline a case because resolution of a common issue (e.g., general causation) often eliminates the need for further proceedings. Accordingly, bifurcation has been described as "one of the sharpest instruments available to trial courts managing mass tort litigation" and "one of the most necessary and natural in [trial judges'] arsenal of tools required for the shaping of these types of cases for efficient adjudication."3