What Exactly Is A Mass Tort?

Federal statute 28 U.S.C. 1407allows a federal court to referee or preside over cases involving common question of fact in order to serve the interest of convenience and efficacy of the parties.

If you have one drug or one device that is being litigated in many different venues across the country, different federal courts, sometimes either the plaintiff’s counsel for some of those cases or sometimes the counsel representing the manufacturer of the drug or device will ask the judicial panel on multidistrict litigation, or the JPML, to consolidate that particular drug or device, the claims of all the claimants into a single court for purposes of pretrial and even sometimes for trial.

Usually cases get worked up and then they select certain representative cases. Both the defense and the plaintiff get to select a handful of cases, sometimes hundreds of cases, to be completely worked up through deposition and to trial, and then both sides go back and forth and get to try their cases. It’s intended to streamline the process so that there are not different rulings across the country and so that everybody gets the benefit of the discovery that’s taken in the case.

Ultimately, if everything goes as planned, the cases should be resolved after some of them are tried or maybe even at the pretrial proceedings once everyone has an understanding of the case’s value, if any.

How Many Mass Tort Cases Have You Handled?

I’ve probably represented more than 5,000 different mass tort claimants in a handful, maybe between 10 and 15 different dockets or regarding 10 or 15 different drugs or devices.

How Many Different Kinds of Mass Tort Cases Are There?

There’s really no limit on the type. Typically you’re going to see drug and device cases, but there are a number of other cases out there, for example, the NCAA concussion litigation started as a class action under a different rule and then was actually converted into a mass tort or into an MDL. There are data breach MDLs, there are consumer practices or fraud MDLs but if you looked at the numbers that the personal injury drug and device cases, it would probably be the most prevalent, at least at present.

What Type of Mass Tort Cases Are The Most Difficult to Win?

They are all tough to win. To step on to my soapbox for a second, the shift in the tort reform advocates and big business has made it very difficult for the ordinary person to get into the courthouse doors when they have been harmed by somebody else. That’s just the way that things have gone, but the drug and device cases can be particularly challenging at the pretrial stage when the opinions of experts are disclosed.

There are some evidentiary burdens that both sides really have to overcome, though it’s initially the plaintiff’s burden to prove their case. The biggest is the US Supreme Court’s 1993 decision Daubert v. Merrell Dow Pharmaceuticals, Inc., which defines the court’s role as a gatekeeper of certain evidence, what the Court referred to as “junk science”, though it has really taken off from there and now we see methodologically sound expert opinion being excluded. In truth, the Daubert decision was really one that should be read favorably, but it has morphed into one that limits experts from testifying as to certain issues, like causation – i.e. whether a product failed in a particular way due to a defect. This issue is important, because if you can’t get your experts’ opinions before a jury, a lot of times you can lose the case at the pretrial stage, or if their opinions are so limited it’s very difficult to prove your case to the jury.

Now, that’s not to say a data breach case is not going to be difficult or something involving consumer fraud. They all have their intricacies that make them uniquely difficult, and Daubert also comes into play in the majority of those cases, too. I’m just more familiar with the injury cases involving drugs and devices and know how hard it is to get past Daubert rulings or challenges.

What Are the Components of a Viable Mass Tort Case?

It’s really no different than any viable personal injury or any tort claim. For example, the manufacturer of a product has a duty to exercise reasonable care in the design, manufacture and sale of the product and that duty extends to all people that the product is made available to. You have to have a breach of that duty and then injuries that were caused by that breach, or what we call causation and damages, so really the same elements that would make up a tort claim, albeit with some subtle nuances throughout depending on which state law is applied.

Typically we’re talking about the state’s product liability statutes, which can differ quite greatly. Something that you have to be very aware of is which state’s product liability or the tort statutes is the court going to apply because a lot of times there are hundreds or thousands of people who have filed cases that end up in an MDL or multidistrict litigation that are not from the location where the MDL is and thus really have no connection to that state at all, so typically the law of the state where the case should have been filed but for the MDL is typically what’s applied.

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