Introduction

Rooted in English common law, the U.S. tort system was once considered the crown jewel of the U.S. legal system. It earned that status because it empowered individuals to hold powerful entities accountable. The jury system prevented even judges from abusing their powerful positions, and contingency fees enabled individual plaintiffs of limited means to sue even if they could not afford legal fees up front.

With doctrines such as strict liability and class actions, the U.S. tort system should serve as a tool to deter corporate wrongdoing. Instead, it is a corrupt business through which plaintiffs’ law firms enrich themselves. The result is a gross miscarriage of justice and a perfect storm overrunning much of corporate America.

Such an inequitable web of incentives has emerged that the Racketeer Influenced and Corrupt Organizations Act of 1970 may be the most effective remedy. The systemic flaws include the downside risks of taking a meritless case to trial versus settling; the increasing frequency of so-called nuclear verdicts; the advent of litigation funding as an “alternative asset class” (especially from abroad); ubiquitous advertising by plaintiffs; and questionable behavior by both plaintiffs’ lawyers and courts in certain jurisdictions.

Dynamics of the Tort System

The general dynamics of modern mass tort litigation involve a relatively small number of plaintiffs’ firms operating in select jurisdictions, repeatedly suing a growing number of corporate defendants across a spectrum of industries. This trend is consistent whether the subject matter is asbestos, opioids, talc, PFAS, or paraquat. In each case, a familiar playbook is used: volume-based filings, contingency-based fees, mass advertising, and strategic forum selection.

In asbestos litigation alone, 48% of filings in 2024 were concentrated in just three Illinois counties (KCIC’s 2024 Asbestos Report). The top five plaintiffs’ firms filed 51% of the complaints, with The Gori Law Firm alone responsible for 20% of the total. On average, 75 defendant corporations were named on the complaints, some of which named over 400 defendants. And more than 12,000 defendants in total  were named on asbestos complaints in 2024, over 2,000 of them for the first time.

Similar patterns are observed in consolidated proceedings, such as MDLs (Multi-District Litigations), where almost 200,000 pending cases reside. Nearly half of the pending cases are attributed to the top two MDL dockets: talcum powder and hernia mesh cases.

The majority of complaints are either dismissed for no value or settled prior to trial. Very few even start trial, and even fewer go to a verdict. Most plaintiffs, most of the time, retain counsel on a contingency fee basis agreeing to share a percentage of any settlements or awards, with the plaintiff’s counsel absorbing all litigation-related expenses.

The mitigating effect of paying the costs of litigation should have a dampening effect on the propensity of plaintiffs’ firms to file frivolous lawsuits and to name companies that have only a tenuous nexus to the injured plaintiff. However, litigation funding has emerged as an alternative asset class, and this influence of third-party litigation funders has significantly altered the calculus — by sharing the downside risks with plaintiffs’ law firms albeit at a reduction in the upside. The wash of plaintiff advertising over the airwaves in recent years reflects the abundance of private equity money chasing new plaintiffs to enroll with their partner law firms.

The Seven Deadly Sins of the Plaintiffs Bar

Today’s tort system does not operate in isolation. It is bolstered by a network of legal, financial, and procedural mechanisms that often create perverse incentives. These dynamics are not confined to a single industry or jurisdiction. They are embedded across mass tort litigation and should raise alarm bells for corporate stakeholders globally.

Below are seven systemic failings — "the Seven Deadly Sins" — that illustrate how the tort environment has evolved into a high-stakes business model. The first four of these sins are emblematic of the tort system while the remaining three stem from the related, but distinct, issues within the bankruptcy trust system.

1.     Over-Naming

In the tort system, plaintiffs’ firms name dozens, even hundreds, of defendants in lawsuits with no factual basis, simply to cast a wide net. This leads to excessive defense costs and reputational harm while encouraging copycat filings.

2.     Litigation Tourism and Judicial Hellholes

Mass tort filings cluster in jurisdictions favorable to plaintiffs due to outsized verdicts, judge bias, or lax evidentiary standards. Venue shopping distorts justice and compromises judicial independence.

3.     High Dismissal Rates with High Costs

Most defendants secure dismissals, often exceeding a rate of 50%. But dismissal only occurs after incurring thousands in legal fees. Even a perfect dismissal record offers no refuge from recurring legal costs.

4.     Litigation Funding Distortion

With third-party litigation funders removing the downside risk, the incentive to file speculative or marginal claims increases. Foreign capital, some of it from adversarial sources, fuels litigation against U.S. companies with little regulatory oversight.

5.     Trust Exploitation and Double Dipping

The same plaintiffs who sue in the tort system often file claims in the bankruptcy trust system without disclosure. Oversight boards for these trusts are typically composed of plaintiffs’ lawyers, enabling unchecked self-dealing.

6.     Incentivized Fraud and Minimal Oversight

Lower evidentiary standards in trusts may result in higher claim volumes. In 2024, more than 28,000 asbestos claims were filed with the Combustion Engineering trust. The majority were for non-malignant conditions, totaling 18,945 Category B claims. In contrast, KCIC counted only 3,931 claims that were filed in the tort system that year, with just 228 definitively categorized as non-malignant. Fraudulent behavior is incentivized and rarely penalized.

7.     Disproportionate Compensation

More money, in total, is paid out by the trusts to claimants with minor conditions than to those with serious diseases. To maintain trust solvency, scheduled values are eroded by low-payout percentages, undermining fairness.

Conclusion

Future articles will cover the seven deadly sins in greater detail. The behavior of plaintiffs’ lawyers is best understood through close examination of the incentives under which they operate. Likewise, the behavior of defendant corporations is best understood through the incentives under which they operate. Together, these systemic flaws pose a real and present danger to American businesses, innovation, and economic vitality.

The modern U.S. tort system is now more akin to game theory, or “the prisoner's dilemma”, in which the downside risk of being the last man standing at trial is enormous compared to the cost of a settlement. Rather than being a place where justice and the law are close siblings, the tort system has become one in which justice and the law can be more like distant cousins who aren’t on speaking terms. The U.S. tort system has lost its way.