RETHINKING ENDS AND MEANS IN MASS TORT: PROBABILISTIC CAUSATION AND RISK-BASED MASS TORT CLAIMS AFTER FAIRCHILD V. GLENHAVEN FUNERAL SERVICES

Abstract

The authors review the obstacles facing plaintiffs involved in mass tort litigation. Their work reveals the evolutionary nature of tort law by which early defendant successes are later overcome by a shift in the law in the plaintiff's favour. One such 'plaintiff friendly' decision, that of the House of Lords in Fairchild v. Glenhaven Funeral Services Ltd., is the focus of this inquiry. The authors speculate on the future of such risk-based analysis in furtherance of the policy objectives of efficiency, compensation, deterrence and morality.