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There is no justification for displacing state tort law by adopting a new federal law of torts in order to facilitate mass tort class actions in federal court. Tort law law has traditionally and properly been the province of state law. The principal problem of mass tort litigation for the federal government is the congestion in the federal district courts caused by the avalanche of state tort claims that have found their way there. This has occurred for reasons not attributable to the federal government. Specifically, state legislatures and state supreme court justices have expanded available claims and remedies under state tort law to include, for example, medical monitoring claims, fear of cancer claims, and emotional distress claims. While some of these new state tort claims may be controversial and add to the burden on the docket of federal courts, this is not a sufficient reason for federal tort law to be enacted to displace these state claims. Any change in the federal rules of procedure by itself will not assure the fair and orderly adjudication of mass tort claims, given the reality that the federal courts are not the only forum where mass tort claims are litigated. A more viable proposal would be to expand the role of federal courts in coordinating pretrial activities in mass tort cases while remanding cases to their original state or federal court for trial. In short, the proper response is to facilitate the consolidation of factually related claims for pretrial discovery in an appropriate venue, but then try those tort claims in state and federal court in the traditional manner.

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GWU Legal Studies Research Paper No. 2012-149, GWU Law School Public Law Research Paper No. 2012-149

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