Mass Torts FAQs

Mass Torts FAQs

What are “Mass Torts”?

A mass tort is a civil action involving numerous plaintiffs against one or a few corporate defendants. A class action is similar: a lawsuit brought by one or more plaintiffs on behalf of a large group of others who have a common interest.

Mass torts are often thought of in terms of the most publicized type, class actions. A class action is essentially a lawsuit brought by one or more plaintiffs on behalf of all those persons similarly situated. For example, a corporation defrauds 5,000 consumers in the same or similar way. John Q. Public may be able to bring a lawsuit against the corporation and become the “lead plaintiff” on behalf of all those people injured as a result of the fraud by the corporation. In these situations, there is typically a “steering committee” formed and comprised of certain attorneys who will help direct the course of the class action litigation and, generally, the court consolidates all lawsuits into one geographic location. The idea of this approach is to try and conserve judicial resources and minimize the potential for disparate legal rulings.

Approaching mass litigation in this way is often of benefit to individual plaintiffs who have claims that are not large enough in value to be able to justify the pursuit of a single lawsuit. On the other hand, class actions have been litigated in which the only real winners have been the attorneys involved in the class action, with little relief given to the individual class members.

Other mass torts are approached by the filing of individual lawsuits on behalf of many clients against one defendant or a group of defendants. In this situation, each lawsuit proceeds forward individually, but often much of the work accomplished in each lawsuit works to benefit all of the individual plaintiffs’ cases. Many of these cases involve very complex and substantial “discovery.” (Discovery is the process of obtaining relevant documents, data and testimony from the defendants and others.) Many cases result in millions of pages of documents and huge amounts of data. To use effectively the discovered information requires experience and education in electronic discovery, along with  a team of professionals who have successfully collaborated in the handling of these matters. 

Some mass torts arise out of obvious disasters: the Exxon oil spill, train disasters in which hundreds are killed or injured, bridge collapses, and plane crashes. There are others that are triggered as a result of some government action. These include Food & Drug Administration recalls and National Highway Traffic Safety Administration advisories alerting consumers to the negligent manufacture of a product. Still other mass torts come about as a result of scientific studies of products that reveal dangers to consumers.

Mass tort cases often involve highly complex issues of science, medicine, finance and law. Not all attorneys or law firms have the talent or resources to successfully litigate these cases with real potential for success. Opposing counsel in most mass tort cases are very experienced, savvy litigation firms, with the resources to wear a plaintiff down and bankrupt opposing law firms. 

The tobacco industry (Big Tobacco) sometimes litigates in the context of mass torts. In 2006, the Florida Supreme Court decided a class action case, Engle v. RJ Reynolds. In that case, the court overturned a punitive damage award against Big Tobacco in the amount of $145 billion and ruled that the case could not proceed in the form of a class action, but had to proceed on the basis of individual lawsuits. Soon afterwards, approximately 8,000 lawsuits were filed against Big Tobacco; they have become known as the “Engle Progeny Cases.” Big Tobacco’s theory for defending cases against them has been called the “scorched earth defense.” This is a process of trying to wear down the plaintiff and financially deplete the plaintiff’s attorneys through extremely aggressive litigation practices. The dynamics of this type of defense can be affected significantly in situations where the numbers of plaintiffs simultaneously litigating is large, and when the plaintiff law firm is substantial enough to stand toe-to-toe with Big Tobacco. Essentially, to have an opportunity for justice against these types of defendants, both the client(s) and the law firm must have substantial commitment and the resources to withstand the defendants’ tactics.

What is a negligently manufactured product?

Florida’s Standard Jury Instructions include legal descriptions for when a product is negligently manufactured. These instructions are given to jurors by the judge in the trial of a civil case, and jurors are told they are the “law of the case”.

Two of the instructions provide a clear, concise description of two ways a product can be determined to be negligently manufactured:

  • A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended, or in a manner reasonably foreseeable by the manufacturer, or the risk of danger in the design outweighs the benefits. 
  • A product is unreasonably dangerous because of a manufacturing defect if it does not conform to its intended design and fails to perform as safely as the intended design would have performed.

If a product is negligently manufactured, should people automatically be able to  collect money?

No. Even if a product has serious defects, there must be some damage caused by the defective product. In some class action cases, the damage is limited to the purchase price of the product or a nominal amount of money above that amount. In tragic cases, the defect causes serious injuries or death to consumers.

How many mass torts are filed?

It is difficult to determine this figure. Although the filing of tort lawsuits is monitored, segregating those into mass torts is not statistically followed. The most recently available data from the US Bureau of Justice indicates that between 1991 and 2001, tort filings in 30 states decreased by 10%.

Are there efforts to limit the amount of damages a plaintiff can collect in mass torts cases?

Yes. Big Corporations, including drug manufacturers and medical device manufacturers, are making aggressive efforts toward capping damages in cases filed against them for negligent products. For example, drug manufacturers are encouraging preemption protection for them. Preemption is a legal concept that would seek to provide civil liability protection in the case of a product that had received some federal agency approval. For example, if a drug kills or injured thousands of consumers, but the drug had received FDA approval, civil lawsuits against the manufacturer of the bad drug could be barred as a result of preemption. Thus, the manufacturer would be protected from civil liability because, although its product was unreasonably dangerous, it had received approval by a government agency.

Is there a special court for mass tort cases? Do judges receive special training in the handling of mass tort cases?

No.  Mass tort cases are filed in the same state or federal courts where all other tort cases are filed. Some judges seek special training through self-education and by attending seminars, but no formal training exists for the handling of mass torts.

Are mass torts always filed in large groups of cases or with multiple plaintiffs in a single case filing?

No. The law firm of Searcy Denney Scarola Barnhart & Shipley, for example, usually handles mass torts on an individual case basis in situations where it makes the best sense and is in the best interests of clients. If we represent 50 people injured by the same product, it may be in our clients’ best interest to litigate the cases in state court because often cases can proceed more swiftly through state courts and our clients’ cases can proceed to trial more rapidly. In this situation, we might file some number of cases and use those to conduct discovery for the benefit of all our clients.

 

 

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