In the areas of toxic tort and mass tort litigation, the 2009 to 2010 Survey period was notable not for landmark judicial decisions or landscape-changing legislation, but for the emergence of new mass torts of enormous potential scope and significance. In late 2009 and early 2010, the Toyota Motor Corporation recalled several of its models based on suspicions that defective design of the floor mats or the gas pedals in the vehicles created a risk of sudden, unintended acceleration. The revelations prompted a deluge of suits in Texas state and federal courts and elsewhere by Toyota owners alleging economic harm from diminution of their vehicles’ value attributable to the defects. In April 2010, an offshore oil rig leased by BP Exploration and Production Inc. (formerly known as British Petroleum) exploded in the Gulf of Mexico, resulting in the deaths of eleven rig workers and an unprecedented environmental catastrophe in the Gulf. The plaintiffs who filed suit included commercial fisherman, hotel owners, recreational sportsmen, and even restaurant owners and travel agents in distant locations. Although BP promptly established a $20 billion fund intended to compensate victims of the spill outside the tort system, the Gulf oil spill of 2010 will unquestionably spawn litigation that will present many novel legal issues and may take years to resolve.
During the Survey period, the Texas Supreme Court did not issue any opinions specifically addressing mass tort and toxic tort litigation. The Texas intermediate appellate courts continued to show skepticism toward claims of asbestos-related injury and demanded factual predicate for discovery in toxic tort cases. After a few eventful years and with enormously significant litigation on the horizon, the Survey period could fairly be described as the calm before the storm.
Brent M. Rosenthal, Toxic Torts and Mass Torts, 64 SMU L. Rev. 583 (2011)