Mass torts are a type of personal injury lawsuit in which multiple plaintiffs can act as a single entity while still retaining the individual characteristics of their various claims. By operating as a collective, these plaintiffs can be more effective, efficient, and generally successful during the course of their civil lawsuit. Consumer Alert Now oversees mass torts for dangerous medications and/or faulty devices for clients located all over the country.

Overview of Mass Tort Litigation

A mass tort is a type of lawsuit (sometimes referred to as a “civil action”) in which numerous plaintiffs file a joint personal injury suit against one or more defendants. These defendants effectively stand accused of committing a “tort” against the plaintiffs, meaning that they have performed a wrongful act or infringed on the plaintiffs’ rights and opened themselves up to civil liability. An entity that has committed a tort can also be referred to as a “tortfeasor”. Mass torts can occur at the state or federal level, depending on the specifics of the case.

In order for a mass tort to be initiated, the plaintiffs must ask the courts for permission to file a lawsuit against the tortfeasor. In determining whether to grant permission, the courts will consider the following:

  1. If a large number of victims/plaintiffs are affected and involved in the case that is comprised of a single issue or product

  2. If the victims/plaintiffs are in the same general location as one another

  3. If all or most of the victims/plaintiffs suffered similar injuries and/or harm

  4. If the claims of injury made by the victims/plaintiffs all have one common source

If accepted, then the victims can come together and file a common mass lawsuit against the tortfeasor. This is just the first step in the overall mass tort process. Ultimately, they are complex legal actions that can go on for considerable lengths of time, though they are unparalleled in their strength and the higher likelihood of success against larger companies with significant legal resources at their disposal.

What are the Unique Characteristics of Mass Tort Cases?

A mass tort is a type of personal injury lawsuit. However, they differ from other personal injury lawsuits in five (5) distinct ways:

  1. Mass torts deal with a large number of legal claims that are arguing against a single product, device, or action. In other words, multiple victims may have been harmed by the same device or action.

  2. All the underlying issues and facts that affect this large number of plaintiffs are similar, or even identical, in nature. In other words, all the plaintiffs suffer the same negative or deleterious effects due to the actions or products of the defendants, meaning that all the cases have the same “questions of law” and “questions of fact”.

  3. All the plaintiffs share a common goal. Essentially, this just shows that the concept of “strength in numbers” emphatically applies to mass torts and the aggregate value of the various claims will rise or fall based on the individual outcomes or overall developments in the cases. This is also legally known as “interdependence of value”.

  4. These various cases are frequently consolidated early on in the process. This is a specific legal process that is part of mass torts known as multidistrict litigation (MDL). It effectively promotes consistency and economy, allowing for one judge to rule on all the various issues of law and/or discovery. It is discussed in further detail below.

  5. Each plaintiff has their own individual case. Unlike other collective lawsuits (like class action suits), each plaintiff retains overall control in regards to various decisions in their case. In cases that are tried by a jury, they are usually tried independently of other mass tort actions.

Mass tort claims are similar to class action lawsuits, though there are a number of operative differences that effectively make each unique. Deciding whether a liability lawsuit should be tried as a mass tort or as a class action will depend on the specifics of the case and on the particular actions of the defendants as well as the harm suffered by the plaintiffs.

What are the Basic Kinds of Mass Tort Claims?

In mass tort claims, the defendants are accused of causing injury or an act of harm through some form of actionable negligence, including, but not limited to, medical devices, prescription drugs, train accidents, persistent pollution, environmental contamination, defective products, faulty manufacturing practices, or a construction disaster. In essence, the mass tort plaintiffs claim that the defendant or defendants have caused injury or harm, usually on a wide level, due to their negligence and/or mishandling aspects of their industry.

Consequently, there are four primary types of mass torts:

  1. Injuries from medical devices – In some cases, medical devices have been released to market too early and extensive safety testing was foregone in favor of generating profits more quickly. Because testing this product design for safety flaws was neglected, there is a higher likelihood that the medical device in question may result in some kind of injury. Recent examples of mass torts for defective medical devices include the 2010 recall of DePuy ASR Hip Implants and the 2004 recall of Advanced Bionics’ cochlear ear implants due to faulty seals.

  2. Injuries from prescription drugs – These are closely related to medical device injuries, although in these cases it involves prescription medication. The United States Food and Drug Administration (FDA) oversees the approval process under its subdivision known as the Center for Drug Evaluation and Research (CDER). These mass torts usually involve situations where a drug was not tested enough and was rushed to market even if the pharmaceutical company in question was aware of potential dangers. Recent examples of mass torts for prescription drugs include Xarelto, a blood thinner that caused internal hemorrhaging and death in patients, and Zofran, an antiemetic drug that was improperly marketed towards pregnant women and resulted in the births of deformed infants.

  3. Product liabilities – These are a form of mass tort in which any entity that makes a product available to consumers is held liable for any harm those products may cause. This includes manufacturers, suppliers, distributors, and retailers. Please note that there is some overlap between medical device and product liability mass torts, as evidenced in the recent torts for Bair Hugger warming blankets or Stockert 3T heater-coolers. Furthermore, in 2016, the Chinese appliance manufacturer Gree Electric Appliances was held liable via mass tort for a failure to report the presence of fire hazards in their dehumidifiers to the United States Consumer Product Safety Commission (also known as the CPSC).

  4. Toxic contamination – These mass torts involve instances where plaintiffs have been harmed by the environmental contamination of one or more companies. This is collectively known as “toxic tort litigation” and the defendants are usually mining companies, radioactive waste generators, water treatment providers, power companies, or solvent manufacturers. Toxic tort litigation can cover a wide variety of potential contaminants, including polychlorinated biphenyls (known as PCBs), methyl tert-butyl ether (known as MTBE), benzene, silica, vinyl chloride, methylene chloride, petroleum, printing solvents, and various plastic polymers. However, the two most widely known contaminants are lead-based paint and asbestos. Consequently, there has been a large amount of toxic tort litigation involving these two harmful chemicals.

Mass torts are a kind of specialty that some law firms focus almost exclusively on, and it is not uncommon for these same firms to use mass media, in the form of radio or television commercials, to reach potential plaintiffs and start building a case.

What is Multidistrict Litigation (MDL)?

Multidistrict litigation (also known as MDL) is a particular type of legal procedure that is specifically designed to speed up the process of handling complex legal cases, including mass torts. These kinds of cases occur when various civil actions involve one or more “questions of fact” that are legally pending in multiple districts. In the legal literature, a “question of fact” refers to any pending or unsolved problem that must be answered by the evidence in the case. In order for MDL to be a possibility, the various lawsuits in the differing jurisdictions must have at least one common question of fact.

In other words, multiple plaintiffs who are alleging similar or identical harm due to actionable negligence on the part of one or more companies may be located in multiple legal districts. MDL provides a legal way to consolidate these various processes in order to streamline the entire process and to provide the hundreds (or even thousands) of plaintiffs involved in a mass tort a way to band together and file as a unified legal entity.

In mass tort cases, MDL is granted for the purposes of:

  1. Any and all pre-trial procedures that involve "discovery of fact" and "issues of causation". This includes the act of producing and reviewing relevant documents, deposing the witnesses, and the act of developing expert testimony and/or witnesses.

  2. The optimization of case management and the act of considering various legal and evidentiary issues

  3. Determining if the expert witness testimony is sufficient and germane to the larger questions of the case.

  4. The act of resolving any legal disputes that may arise during the process of discovery

MDL works best for complex and large cases that potentially involve one or more questions of fact. For example, here are two (2) examples of questions of fact that would best be addressed in a mass tort that has been granted MDL:

  1. Has a certain medical device caused injury or harm?

  2. Was the crash of an airplane caused by a faulty or improperly maintained hydraulic system?

In the case of the second question, the mass tort and MDL may be directed towards the manufacturer of the hydraulic system (if it was not properly built) or towards the airline (whose duty it was to oversee regular maintenance and function). In some cases, both of these may become questions of fact that then play into the overall mass tort.

In order to give your mass tort the highest chance of success, any firm or legal team that is overseeing the general strategy will opt for having MDL be granted. This is a legal process that requires going through the federal court system in order to allow for the consolidation of cases across multiple jurisdictions.

Who Grants MDL in Mass Tort Cases?

This process of consolidation is overseen by the United States Judicial Panel of Multidistrict Litigation (alternately known as the JPML or simply “the Panel”). This legal body was established by Congress in 1968 and is part of the federal court system of the United States. It is tasked exclusively with managing MDL, meaning that it possesses the legal authority to consolidate multiple civil actions that are pending in two or more federal judicial districts to a single district court in order to activate pretrial proceedings.

Some of the basic characteristics of the Panel include:

  1. Its members are appointed by the Chief Justice of the United States (a position currently held by the Honorable John Roberts).

  2. There are seven members, all of whom are United States federal judges from either district courts or courts of appeals.

  3. Every member of the panel must be from differing judicial circuits.

  4. They oversee the consolidation (or, in legal jargon, the “centralization”) of a diverse set of lawsuits, including every type of mass tort.

  5. MDL is granted if the Panel concludes that the centralization will prove to be convenient and effective for the parties and witnesses and promotes “the just and efficient conduct” of the overall mass tort.

This concept of “just and efficient conduct” is crucial in the Panel determining whether or not to grant MDL. It also means that the Panel must consider if all parties, including plaintiffs, witnesses, and defendants, will be better served by the process of granting MDL. Furthermore, if not centralizing the mass tort may result in prejudicing the potential outcome of the overall case, then the Panel is also obliged to ultimately grant MDL.

This process of MDL serves an important purpose in a mass tort: this centralization allows the plaintiffs to pool and conserve their resources, thereby making them more effective during the overall mass tort. This increases the likelihood of success and obtaining a judgment or financial settlement that is highly beneficial to the plaintiffs.

In other words, the Panel granting centralization for MDL is a positive development for the plaintiffs. It strengthens their ability to mount an effective mass tort by being more cost-effective. Furthermore, if MDL is granted, then all witnesses in the mass tort will not have to be deposed multiple times in different jurisdictions. This ensures that their answers will stay consistent and avoid any potential issues whereby they may contradict themselves under oath.

What Happens in a Mass Tort Once the MDL is Granted?

The next major step is for the law firm in question to form what is known as a plaintiffs’ steering committee (also known as a PSC). This legal entity has the sole function of efficiently and collectively representing the collective interests of all plaintiffs involved.

It is important to consider the formation of the PSC in the wider paradigm of mass torts and civil actions. Essentially, a mass tort is a legal means to bring together a large collection of victims to give them greater power during the course of their case. This greater power is further solidified by the Panel granting MDL, whereby multiple jurisdictions can be collapsed into a single venue in order to save resources and maintain consistency across multiple testimonies. Finally, the collective power is distilled even more by the formation of the so-called PSC in order to best represent the interests of all the plaintiffs.

This is then followed by the use of “bellwether cases” (also known as “bellwether trials”) in order to determine the overall legal climate and potentially determine how a jury may rule on a mass tort. Furthermore, the act of selecting a germane bellwether case is highly dependent on how similar it is to the mass tort in question. It must have the same general characteristics and questions of fact as the underlying mass tort case.

The selection of these bellwether cases is a collaborative process, shared equally between the plaintiffs, the defendants, and the presiding judge. Usually, the plaintiffs’ law firm will put together a list of cases that fits the bill, matched in turn by a list of cases presented by the defendants’ legal representatives. In many ways, this process is similar to the selection of jurors, in which each side presents cases that will best serve their respective interests. The presiding judge will then choose two (2) to four (4) bellwether cases with which to proceed.

The outcome of these bellwether cases does not have a direct effect on the underlying mass tort, but their conclusions will likely influence how the plaintiffs or defendants plan to proceed. For example, if the bellwether cases result in large payouts (as determined by those presiding judges) to the plaintiffs, then the defendants will likely offer settlements in order to avoid drawing out an inevitable defeat and incurring considerable legal costs.

It is important to note that a mass tort is like any other civil lawsuit that is ultimately decided by a jury; each side will present their competing evidence, testimonies, and expert witnesses. If it is ruled in favor of the plaintiffs, then the presiding judge determines the payout amount based on other cases that have similar characteristics.

Find a Mass Tort Lawyer Near Me

Mass torts are long, complex, and highly involved civil lawsuits that require a deft understanding of the law and extensive experience. If you have been harmed or injured by a product, medical device, and/or medication, then there may very well be a preexisting mass tort that is trying the very case that applies to you. Contact our mass tort lawyer at 800-511-0747 to get started right away!