Mass Tort Litigation: What you need to know
Mass tort is a legal term that applies when a large group of people are injured by a common defendant such as a drug company, medical device manufacturer or consumer product company. The injured people can come together in a single mass tort, seeking justice for the injuries they have suffered at the hands of the common defendant. The individual claims are consolidated into a multidistrict litigation or MDL, making it much easier for injured individuals to stand up and win against the giant corporate defendant.
Mass tort litigation is a “team sport” where multiple law firms work together to go after large, deep-pocket corporate defendants. Mass torts litigation allows a group of firms to represent clients, pool resources, share ideas and legal theories to get the best settlement possible for the injured clients. Because mass tort litigation typically involves very large companies, this essentially levels the playing field, allowing each injured party to have a fair chance at getting justice.
When Does an MDL Makes Sense?
When thousands of people have been injured by the same dangerous drug (such as Truvada, Zantac, Xeljanz etc.) or defective medical device (such as hernia mesh, IVC filters, Essure, Surgical Staplers, Juul, Talcum Powder etc.) there are many common questions of law and fact that can be resolved on behalf of all plaintiffs in a single mass tort action. The goal of an MDL is to efficiently utilize the resources of the judicial system and provide consistent court rulings across legal claims that involve similar questions of law and facts. By consolidating the discovery proceedings and pretrial motions, the parties to the litigation save time and money.
“Let’s face it….a single individual plaintiff, alone, doesn’t stand a chance against a deep-pocket corporate defendant. There's power in numbers”
Types of Cases May Become an MDL
To be consolidated into an MDL the cases must have common questions of fact (issues to be decided by reviewing the evidence) and common questions of law (laws that will be used to decide the case). If an individual case is not resolved by settlement or dismissal during MDL, it is sent back to the court of original jurisdiction for adjudication.
MDLs typically involve the following types of claims:
- Defective medical devices
- Dangerous pharmaceutical drugs
- Defective consumer products
- Airline accidents
- Civil lawsuits over securities fraud
- Civil lawsuits over terrorist attacks
- Widespread unfair employment practices
Class Action vs. MDL: What's the Difference?
Most people are more familiar with the term “class action lawsuit” which is another type of mass action in which a large number of plaintiffs team up against a common defendant. There are some key differences between and some similarities between the two.
- Both are civil actions.
- Both actions involve representation of a large number of plaintiffs.
- In a class action, a single lawsuit is filed on behalf of a large number of injured people. In an MDL, each plaintiff files suit so there are lots of lawsuits that are consolidated.
- In a class action all parties filing suit claim the same injury. In an MDL the injuries may be similar, but the severity of injury can be different from one case to the next.
- In a class action, the damages received are identical for everyone. In a mass tort, the damages are assessed based on the severity of the injury.
While both actions allow multiple plaintiffs to pool resources and go after a deep pocket defendant, the MDL provides more flexibility and typically much higher recoveries than a class action.
What is Multicounty Litigation?
Multicounty litigation (MCL) is the state court equivalent of the federal court MDL procedure. In August 2018, the New Jersey Supreme Court approved consolidation of claims against Johnson & Johnson and its subsidiary Ethicon involving defective hernia mesh known as Physiomesh Flexible Composite Mesh under Superior Court Judge Nelson C. Johnson in Atlantic County.
The Judicial Panel on Multidistrict Litigation: Where it all begins
The United States Judicial Panel on Multidistrict Litigation (JPML) is a special body within the U.S. federal court system which manages multidistrict litigation. Established by Congress in 1968, the JPML has the authority to consolidate cases into an MDL for pretrial proceedings. To do so, JPML must determine there are common question of law and fact between the cases and that consolidation will preserve the resources of the parties (plaintiffs and defendants) and the court system. The JPML also wants to avoid duplication of discovery and prevent inconsistent rulings that may occur if the cases were held individually.
