What Are Mass Torts?
A Mass Tort is where many people are wrongfully harmed in a similar way usually by a drug, medical device or a product.
A tort is a civil – rather than criminal – wrong committed by one person that results in injury to another. (In the legal context, a “person” can be a business or corporation.) Our civil justice system is founded upon principles of personal responsibility. As a result, a person who commits a tort is responsible for the harm caused and is liable for the physical and financial damages incurred by the victim.
Mass tort cases allow many people harmed by the same person (or, in most instances, the same corporation) to benefit from shared research, efficiency and economy of scale but still have their cases considered individually. The cases are pursued as individual lawsuits, often consolidated in the beginning by the Court. Mass tort cases are frequently confused with class actions. Mass torts are far different than class actions. Class actions involve the claims of multiple parties all brought in the same suit.
Some mass torts arise out of widespread disasters, such as the Exxon and BP oil spills, the 9/11 terrorist attacks, the MGM Las Vegas hotel fire, and various airlines crashes. Others are triggered by government action, such as the National Highway Traffic Safety Administration recall of automobiles with design defects. Still others come about as a result of violations by big businesses in antitrust claims, deceptive and fraudulent business practices, and securities fraud; or from scientific studies that discover previously undisclosed dangers of consumer products, such as pharmaceuticals and medical devices.
The unique characteristics of mass torts are:
- A large number of claims which derive from a single product or event: For example, many patients were injured by the same defective medical device or numerous neighbors were sickened by the same toxic spill.
- All of the claims have factual and legal issues in common: The cases share identical or similar issues of law and fact associated with a single product, disaster, action, or event.
- The claimants share a common goal: The aggregate value of all the claims rises and falls with the outcomes of the individual cases or other critical developments.
- Frequently, the cases are consolidated in the beginning: In an effort to promote judicial economy and promote consistency, one judge decides preliminary issues of law and discovery.
- Every claimant has his own, individual case: Unlike class actions, each claimant retains control over decisions regarding his case. If the case is tried to a jury, most of the time it is tried independently of the other mass tort cases.
By consolidating mass tort cases for preliminary pre-trial matters and then trying the cases individually, our court system seeks to balance the interests of injured parties who have a right to have their claims individually addressed against the need for cost-efficient and timely proceedings. In so doing, lawyers and judges handling mass tort cases borrow some concepts from class action cases while retaining each injured party’s individual case. Here are some important distinctions between mass tort actions and class action claims
- In class actions, one representative lawsuit is filed by one or more plaintiffs on behalf of many other claimants who are in the same or similar situations. There is one trial on behalf of “the class,” and when a settlement or verdict is reached, all the members of the class share in the proceeds, often on an equal basis. In order to obtain class certification, it is important to show that all of the class members have been harmed in the same fashion. This is why class action lawsuits generally are inappropriate for plaintiffs who have suffered personal injuries. Class actions are often used to recover financial losses under consumer fraud laws.
- In mass tort litigation, individual cases are consolidated only for purposes of pre-trial procedures involving generic discovery and causation (document production and review, depositions of fact witnesses, and development of expert witness reports and testimony), and case management briefing and consideration of various legal and evidentiary issues, weighing of sufficiency of expert witness testimony, and resolution of disputes that arise during discovery Each plaintiff’s case proceeds forward individually and if the case is tried, it is tried individually. Any damages awarded in trial go to the individual, not to a class for later division.
Sometimes a judge overseeing a mass tort project will conduct a bellweather trial. This process allows both the plaintiffs and defendants to experience a trial and see who wins. This is thought to promote and expedite discussion of settlement for all the cases. Mass tort judges often are instrumental in mediating and settling mass torts cases after one or more bellweather trials take place.
In order to have a group of claims designated as mass tort litigation, attorneys representing the plaintiff(s) apply to federal or state court.
In the federal system, this process is initiated by filing a motion before the Judicial Panel on Multi-District Litigation, a group of federal judges who meet every few months to consider such requests. Those judges have the power to order all individual cases filed in the federal system to be transferred and consolidated before one federal judge. Several states, such as California, New Jersey, and Pennsylvania, have procedures similar to those used in federal multi-district litigation. Florida does not have formal rules for statewide management of mass tort cases. Historically, courts in this state have informally coordinated centralized management of complex cases like the thousands of breast implant, diet drug, and tobacco cases that have been litigated in the state over the past two decades.
The Judicial Panel on Multi-District Litigation, as well as state courts that are considering whether mass tort treatment is appropriate, must consider a number of difference issues:
- Are there are a large number of claims associated with a single product or issue?
- Is there a high degree of commonality among the issues and actors?
- Is there substantial value interdependence among the individual cases?
- Is there geographical disparity among the parties?
- Is there a high level of commonality of injuries and/or damages among plaintiffs?
- Is this jurisdiction fair and convenient to plaintiffs, witnesses, and attorneys?
- Would coordinated discovery and management be advantageous?
- Does centralization result in effective utilization of judicial resources, facilities, and personnel?
- Are there related issues pending in federal or other state courts that require coordination by a single judge?
- Is there a chance that centralization could unreasonably delay progress, increase expenses, or prejudice the outcome?
Once a mass tort designation has been established and a judge has been selected, the judge typically holds a hearing to establish a schedule for certain issues such as pretrial procedures, discovery issues, forms, calendaring, and other details. All mass tort cases involve complex and substantial discovery. Discovery is the process of obtaining relevant documents, data and testimony from the defendants and others. Once individual trials begin, attorneys for all of the plaintiffs draw upon this collective body of information to establish the evidence and testimony necessary to win the case.
