By Brent M. Rosenthal

If asbestos litigation is the “mother” of all mass tort litigation, as more than one commentator has suggested, then the state of Texas could fairly be described as the mother’s birthplace. It is widely acknowledged that asbestos litigation effectively began with the Fifth Circuit’s “seminal and wide-ranging opinion in Borel v. Fibreboard Paper Products Corp.,” which affirmed a jury verdict in an asbestos case tried in a Beaumont, Texas federal court. In the decades following Borel, Texas trial and appellate courts arguably played the preeminent role, not only in shaping the substantive law applicable to cases involving injuries caused by asbestos and other industrial toxic substances, but also in developing and honing procedural tools for managing asbestos litigation and other types of mass torts. Initially, the Texas federal courts, led by the Fifth Circuit and Judge Robert Parker of the United States District Court for the Eastern District of Texas, took the lead in creating this law. These courts issued comprehensive and often controversial opinions on such issues as the availability of damages for risk and fear of future injury, recovery of punitive damages by successive litigants for the same course of wrongful conduct, the use of the doctrine of collateral estoppel and extrapolation techniques to decide purportedly common issues and streamline the litigation, and the availability of the class action device to produce a global resolution of mass tort claims.

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Recommended Citation
Brent M. Rosenthal, Toxic Torts and Mass Torts, 66 SMU L. Rev. 1203 (2013)