Mass torts are wide-scale, large personal injury lawsuits that are comprised of multiple victims that are acting as a single legal entity. Operating in this manner grants them considerably more power in the courtroom and increases the likelihood of a successful ruling or a generous settlement being offered to them. Consumer Alert Now represents clients all over the United States who are looking to join a mass tort in order to seek out financial compensation for an injury or harm they may have suffered.
Mass Tort Timelines
Mass torts are very distinct from other personal injury claims because, due to the vast number of plaintiffs, they are much more complex and slow-moving. A personal injury claim can speed through the courts, sometimes in a manner of months or even weeks (if the defendants offer to settle). This is emphatically not the case with mass torts.
Furthermore, the process of discovery and evidentiary hearings also take a protracted amount of time. Ultimately, each mass tort is unique in how much time and how many resources will be necessary in order to see the entire civil action through. There are a variety of status conferences, case management meetings, evidentiary hearings, and the filing of motions that may delay or expedite the overall timeline.
Essentially, there is no absolute guarantee for how long a given case may take. There are asbestos injury claims that were filed over forty (40) years ago that are just now making their way through the courts. However, it is possible to identify common factors that heavily influence the overall timeline for a mass tort, thereby allowing the plaintiff and their legal team the ability to properly adjust certain parameters in order to reach a ruling or settlement in a more timely manner.
Factors that Impact the Timeline of a Mass Tort Settlement
Mass tort cases can take a long time to reach their conclusion and for the plaintiffs to receive their settlements. Furthermore, there are a number of reasons that may factor into this overall settlement time, including:
- The location and deposition of all expert witnesses. Court testimony from expert witnesses plays a crucial role in mass tort cases, including from clinicians, economic experts, scientists, researchers, marketing professionals, and/or pharmaceutical developers.
- The need to travel in order to locate said expert witnesses and/or investigate other aspects of the case that may be germane to the final ruling.
- The process of conducting the overall investigation and gathering all evidence plays an important role in the final ruling. Mass tort claims require a substantial amount of evidence, including company documents, medical records, and/or internal corporate correspondence. These pieces of evidence can take months to locate, collate, and analyze.
- The assessment of the relative strengths and weaknesses of your case by your attorney affects the settlement time. Once all this evidence has been processed, your attorney will then have to assess the likelihood of success in your case. This includes assessing the extent of your injuries as well as the strength of the evidence.
- The use of a bellwether trial as a test case in trying your mass tort claim also affects settlement time. These bellwether trials are carefully selected by lawyers on both sides of the case and overseen by multi-district litigation judges (also known as MDL judges). These bellwether trials are a kind of “dry run” for the final mass tort settlement. Their results are not legally binding on future cases, although they do provide valuable information and insight into the relative weaknesses and strengths of the mass tort claim.
- Delay on the part of the defendants. In most cases, a mass tort claim is filed against a much larger and more powerful entity than the plaintiffs (usually a company). These companies almost always have extensive legal teams that will delay and defer a mass tort claim for as long as possible. This is usually a deliberate tactic and may result in the mass tort claim falling apart if the plaintiffs do not work closely with their legal team to increase their likelihood of success.
These various factors are part of only the initial stages of developing a claim and do not include other crucial steps such as:
- The act of filing preliminary papers. This includes the actual injury complaint and all pertinent documentation.
- Additional fact-finding and investigatory actions
- The legal process of “discovery.” This is when both the plaintiff and the defendant share all pertinent evidence and documentation on the case with each other.
- Any and all legal motions filed by either side
- Negotiations for the amount of the settlement
- The actual process of the trial. This includes the selection of the jury, opening arguments, testimony (from both expert and regular witnesses), the act of presenting all evidence, closing arguments, and the final verdict.
- The determination of the actual amount of the settlement
All of these factors will greatly influence how long it takes to finalize your settlement in a mass tort case. Consequently, it is crucial that you retain a legal firm that can effectively handle these various factors in order to maximize your settlement amount and decrease the amount of time it will take to receive this settlement.
What Actions Can I Take to Make My Case Settle Quickly?
It may feel like you have little to no control over your mass tort claim. The complexity, enormity, and size of the case can easily overwhelm just about anyone. There are some steps you can take, however, to ensure that your case is handled more quickly and that your settlement is not delayed. These include:
- Giving your lawyer any and all information you may have about your case. Ideally, this should be done as quickly as possible and without any delay. This information should include details of how you were affected by the issues in the mass tort case and when your injury began.
- Maintain consistent and open communication with your attorney at all times. This is especially important as the issues in a mass tort case can quickly change, and the topography of the case can shift.
- Be sure to answer all of your attorney’s questions as quickly and accurately as possible, thereby ensuring that the case will move along swiftly.
- Always heed your attorney’s advice. This is an important step that is frequently overlooked by clients who may be overwhelmed by the enormity or complexity of their mass tort case. Remember that your attorney has extensive experience in this particular type of case and scenario.
If you make sure to take these actions, then the likelihood that your mass tort will move along more quickly is greatly increased.
Furthermore, it may feel like there are significant periods of downtime in the case with little to no developments in your case. It may only appear that way, however, and there may be monumental developments happening out of plain sight, including such actions as a motion to dismiss some evidence or a witness. These are considered to be vital in the overall development of a mass tort case and can frequently occur behind closed doors, with your legal team arguing against the opposition before the judge.
However, you should always be skeptical of any lawyer or firm who promises you a quick trial and settlement; these types of cases take time, and your attorney must be thorough in their due diligence to ensure that they are fully prepared to take on the defense. Your legal representation will likely be able to give you a rough timeline based on the specifics of your case. This is contingent, of course, on your complete adherence to the suggestions listed above so that they may have an accurate view of your particular situation.
Bellwether Trials and Settlement Time
As mentioned above, "bellwether trials" (also known as "bellwether cases") can play a significant role in the overall course of how long it takes a settlement to be finalized. Both the plaintiffs and the defense will offer the presiding judge a list of relevant bellwether trials in order to effectively “test the water” for the upcoming mass tort civil action. From these opposing lists, the judge will choose between two (2) and four (4) relevant bellwether trials in order for the overall case to proceed.
Furthermore, bellwether trials are essentially test cases for multidistrict litigation (also referred to as MDLs). MDLs are when multiple cases in different jurisdictions are consolidated into one judicial district in order to streamline the overall case.
Consequently, here are four (4) crucial facts regarding bellwether trials and how they can affect settlement time:
- They do not affect the final rulings of the actual mass tort trial, though their outcomes may influence how the plaintiffs and/or defense wish to proceed. For example, if a bellwether trial results in a large payout for the plaintiffs, the defendants will likely consider that the likelihood of winning the actual trial is slim and may accelerate settlement time by immediately offering compensation to the plaintiffs.
- Bellwether trials are closely examined and watched by other attorneys, especially attorneys for the defense. This is because bellwether trials have judges that rule on specific issues that are relevant to the overall case and certain pieces of evidence that have been received by the jury, ultimately resulting in a ruling by a jury. Consequently, lawyers for the defense examine these bellwether trials closely to try and determine if they can potentially speed up the settlement time in their mass tort.
- The rulings that are reached in bellwether trials set the stage for what mass tort attorneys can expect from similar litigation in the future. It is useful to think of bellwether trials as “test cases”; this means that they basically set a precedent for other litigation that is being developed. However, it is important always to note that bellwether trials are not binding in terms of their final rulings; they merely provide a general set of guidelines by which your attorney or legal team can implement their overall legal strategy.
- If the jury rules in the plaintiffs’ favor in a bellwether trial, this increases the likelihood of the defendants approaching and offering a settlement before going to trial. In essence, a favorable outcome in a bellwether trial gives the plaintiff a certain amount of leverage and bargaining power in order to gain a more favorable financial outcome.
These four (4) aspects of bellwether trials are what make them so important to attaining an optimal settlement time for the plaintiffs. As mentioned above, mass torts can drag on for years, even decades, before reaching some kind of resolution. During that period of time, plaintiffs can pass away (some from the very condition that they incurred by the defendants’ negligence or actionable behavior) and never see any of the financial compensation that they have waited for so diligently.
Furthermore, while the outcomes of the bellwether trials are being determined, another important factor in expediting overall settlement time during a mass tort is the creation of what is commonly known as a Plaintiffs’ Steering Committee (also referred to as a PSC for short). This PSC is a means by which the various attorneys representing the plaintiffs can formulate a committee that streamlines all the various legal, procedural, and evidentiary issues that arise during a complex mass tort. In other words, it is a way of optimizing the available resources in order to gain an optimal ruling for the plaintiffs in as short a time as possible.
Why Would the Defense Offer a Settlement?
As with any court case, compelling the defense to offer a settlement requires that the plaintiffs are operating from a position where they have some amount of leverage. Otherwise, the defense will never feel the need to actually offer said settlement and the case can drag on indefinitely. Remember that the defendants in mass torts are usually large-scale companies with vast legal resources; from their perspective, they can easily allow a mass tort to go on for an extended period of time without ever offering a settlement.
However, if the bellwether trials result in positive outcomes for the plaintiffs, then the defense team knows that they will likely lose a jury trial. Consequently, they will usually offer a settlement in order to:
- Avoid expensive and costly litigation in the future. Although large companies do have huge legal budgets, they are ultimately beholden to their shareholders, who likely will not appreciate the company incurring expenses that are unnecessary.
- Reduce negative media coverage and press that the company will most likely receive if they continue with the litigation. Remember that most media outlets will not be “pro-business” and will most likely spin the story in favor of the plaintiffs.
- Avoid being ordered by the judge to pay much more expensive awards or damages following a jury trial. Ever since the proliferation of mass torts for asbestos and tobacco, both of which resulted in huge payouts, there has been a precedent set by which plaintiffs can be awarded tremendous sums of money. It is in the company’s best interest to avoid this at all costs.
Once you have been offered the settlement, it is important that you confer with your legal team about all your potential options. Ultimately a mass tort treats each claim as separate, meaning that each plaintiff may have slightly differing circumstances. This means that you must consider the circumstances of your particular scenario in order to determine if the settlement being offered is satisfactory to your situation.
How Does “Settlement Counsel” Affect Settlement Time?
Much like how the plaintiffs can use a PSC to guide their overall legal strategy, the defense can use what is known as “settlement counsel” in order to develop a long-term strategy to beat the plaintiffs. This settlement counsel is a legal team that is either a subdivision of the primary legal firm representing the defense or comprises attorneys from an entirely separate legal firm who are now tasked with focusing exclusively on the mass tort and its issues of litigation, discovery, and evidentiary hearings.
In other words, the settlement counsel team focuses on the larger picture for the defense. In this sense, it is useful to think of settlement counsel as an effective counter to the efficacy of PSCs for the plaintiffs. Furthermore, settlement counsel can guide the overall strategy on both the underlying mass tort case and the bellwether trials that accompany it. It will determine whether or not to offer a settlement, which cases or clusters of cases should go to trial, and what tactics to take (in good or bad faith).
Some of the settlement counsel’s most effective actions in delaying a settlement include:
- Coordinating with the defense’s discovery team to deny motions for evidentiary hearings and to go on the offensive with discovery efforts.
- Push the presiding judge to examine screening orders to deem certain cases meritless (even if they are emphatically not).
- Work with the wider legal and/or briefing team to brief and identify dispositive issues in clusters of cases.
Consequently, the PSC’s natural strategy should be to analyze and determine what the settlement counsel will be doing throughout the course of the mass tort. This is especially true in cases where the settlement counsel may further bad faith tactics (like indefinitely delaying the case).
However, if the defense does decide to offer a settlement, then it is the settlement counsel that negotiates, structures, and gives out all forms of the settlement (including inventory, individual, and global settlements). As a result, having the PSC engage with the settlement counsel can be both a defensive tactic, to counter their stalling, or an offensive tactic, to expedite their natural inclination to offer a settlement.