Mass Tort or Mass Confusion

Everything you to know about Mass Tort Litigation

Mass Tort or Class Action? How to tell the difference

Many people have heard of the term “class action” lawsuit when thinking of large groups of people affected by one common “bad guy” defendant, such as a negligent company that polluted drinking water or cigarette companies sued by cancer patients. But what is the difference between a class action and a mass tort, which also involves a large group of plaintiffs?

One of the most important distinctions between a class action and a mass tort is the way the group of injured persons, or “plaintiffs,” is treated. In a class action lawsuit, there is one large group of plaintiffs that is treated as a single class. The class is represented by one plaintiff, called the class representative, who stands in the place of all the other plaintiffs. There is typically only one trial, because all the plaintiffs have suffered similar injuries and the class representative is suing on behalf of all the other plaintiffs.

There are Federal Rules of Civil Procedure which detail certain requirements that a group must meet to qualify for a class action:

1. The class must be so large and numerous that joinder of all members is impracticable.
2. There must be questions or fact common to the entire class.
3. The claims or defenses of the representative parties must be typical of the claims or defenses of the entire class.
4. The representative parties must fairly and adequately protect the interests of the class.

Before filing a class action lawsuit, all potential members of the class must be notified and given an opportunity to decide whether they want to participate in the action, and whether they wish to hire an attorney of their own.

Mass tort claims involve very similar elements as class actions. In fact, a mass tort may meet almost all of the requirements for a class action claim, except for maybe one or two elements. For example, one of the most common ways to distinguish a mass tort is when the large group of plaintiffs have different or varying injuries. Instead of proceeding to one trial with the class representative, each plaintiff’s case is tried individually, with each plaintiff proving his or her own individual injuries. Because each plaintiff proceeds to trial on his own injuries, the recoveries for each plaintiff may not be the same and are often times much higher than the settlements obtained in a class action lawsuit.

Multidistrict Litigation: How to Handle a Mass Tort Lawsuit

Mass torts are also commonly referred to as “multidistrict litigation” because they involve a large number of plaintiffs from various different districts. Each plaintiff individually files their lawsuit and the court will consolidate all the cases into one multidistrict litigation (MDL) case. One of the purposes of consolidating all the cases into one is to streamline the process of gathering discovery evidence and handling pretrial proceedings. Instead of each plaintiff attorney conducting separate discovery to obtain information, all plaintiffs will typically file standardized forms such as “Plaintiff Fact Sheets” or “Plaintiff Profile Forms” to provide important details of their claim. Similarly, the defendant will also file a standardized form to provide information and documents to all plaintiffs.

Another important purpose in consolidating all of the cases into one MDL is to reduce the costs for all parties involved. Big name manufacturers and pharmaceutical companies have hundreds of thousands of dollars to spend defending lawsuits. Individual plaintiffs, on the other hand, are all too often unable to afford costly legal representation. By consolidating all the plaintiffs’ claims into one litigation, plaintiffs can cut costs associated with litigation, such as deposition fees, expert witness fees, medical experts, etc.

Mass Torts Equals Mass Settlements

As with class actions, settlements in mass tort claims are provided to all plaintiffs. Sometimes, the court will designate what’s called a Plaintiffs’ Steering Committee, which will have authority to enter into a settlement on behalf of all of the plaintiffs. The committee will determine each case individually and will typically prepare a formula or point system to facilitate the process of settling claims. However, because mass torts plaintiffs are treated individually (and not just as members of one class), every plaintiff has the option of rejecting a standard settlement based on the formula and proceeding to trial on their own individual injuries and damages.

Past, Present and Future of Mass Torts

Over the years, there have been a number of mass tort lawsuits that have grabbed the attention of news outlets across the nation.

• Firestone Tires and Ford Rollovers: Defective Firestone tires separating from the tire at high rates of speed have been affecting consumers since as far back as 1996, particularly those tires manufactured and distributed in Ford vehicles. Several causes were linked to the defect, such as tire age, vehicle weight and operating temperature. These defective and dangerous tires caused between 271 and 476 deaths, and 800 injuries, in the United States alone.
• Deepwater Horizon BP Oil Spill: In 2010, the Deepwater Horizon oil rig in the Gulf of Mexico exploded and sank, causing the death of 11 workers. The rig leaked dangerous and toxic black oil into the surrounding waters for three months. BP created a fund of $20 billion to compensate those injured and affected the ruptured rig. In addition to the civil settlements, BP ultimately settled criminal charges with the Department of Justice by pleading guilty to 11 counts of felony manslaughter and additional violations of federal acts. The criminal penalties and fines added up to more than $4.5 billion.
• Chinese Drywall: In 2009, homeowners across the nation began filing lawsuits against Chinese-based manufacturers of drywall, alleging that severely high levels of sulfur in the drywall caused issues with air conditional systems, electrical appliances, and internal wiring, to name a few. More than 20 manufacturers, including several well-known U.S. companies, were named in the multidistrict litigation.
• Transvaginal Mesh: Recent technological advancements in the field of medicine have also brought to light complications from defective medical devices, such as those associated with transvaginal mesh surgical implants. Some of the most commonly reported side effects include implant erosion, infections, and complications from implant shrinkage or movement.

Big Pharma: What’s The Big Deal?

Perhaps the most popular and well-known of all mass tors are claims against pharmaceutical companies for defective drug medications. We’ve all seen the television commercials advertising prescription drugs and then very quickly, reciting off the list of serious or non-serious complications and side effects which users may (or may not?) experience. Prescription drugs such as Xarelto and Zofran were linked to numerous deaths and serious complications, and these companies are currently facing several MDL claims.

Still Not Sure if you have a Mass Tort or a Class Action?

Class action lawsuits and mass tort claims have similar factors but are treated very differently by the courts. If you’re still not sure whether you have a claim against a defendant as a class action or as a mass tort claim, you need an experienced and knowledgeable product liability attorney committed to gaining the maximum compensation available.