Unique Mass Tort Cases
Mass tort cases typically involve a wrongful act that causes loss or injury to many people. Here, multiple plaintiffs are allowed to sue the same defendant(s) for damages resulting from the same event or series of events. Mass tort lawsuits are usually unique because they consolidate individually filed cases into one court to save time and court resources, as well as make the litigation process more efficient. This is different from a class action where one plaintiff represents an entire group, and everyone in the group obtains the same financial compensation. In mass tort cases, each plaintiff’s case is handled individually, and the financial compensation of each plaintiff is different based on the circumstances of their case. For example, if one victim suffers from hearing loss due to the use of a defective medication, they will receive more damage than another victim who only experienced mild reactions like headaches. In addition, mass tort lawsuits have fewer restrictions than class action cases and can accommodate more victims of a tort. Some common types of mass tort in Texas include:
Medical Device Mass Tort: This type of mass tort occurs when defective implanted medical devices such as pacemakers, hip replacements, transvaginal mesh, and pain pumps cause injuries to multiple people. Mass tort lawsuits are filed against medical device manufacturers since medical devices are usually defective due to a manufacturing or design fault. These lawsuits, therefore, serve as an opportunity for victims to recover compensation for any permanent or temporary damage resulting from defective medical devices.
Toxic Mass Tort: This tort arises when a group of individuals are exposed to the same toxic chemicals or other substances which cause widespread health problems to the victims. In this type of mass tort, the plaintiffs must establish that the defendant was responsible for exposing them to harmful substances such as asbestos, carbon monoxide, coke dust, and silica, which resulted in their injuries.
Pharmaceutical Mass Tort: This tort arises when a drug or medication such as Elmiron, Levaquin, or Xarelto, causes adverse effects to a large number of individuals due to its contents or contamination. When this happens, the plaintiffs (which comprises the group of people injured by the same dangerous medication) may sue the manufacturer of such drug or medication.
Product Liability Mass Tort: This tort occurs when a defective consumer product such as an electric drill, faculty brakes, airbags, or car seatbelts, causes injury to multiple users or when the manufacturer of these products fails to provide adequate warnings of potential risks to consumers.
Disaster Mass Tort: Man-made disasters, such as an explosion or building collapse, can cause serious injuries to a large number of people. Although each individual affected by the disaster may suffer different kinds of injuries, all victims can form a mass tort to recover financial compensation for their individual damages. Unlike the case of man-made disasters, natural disasters such as hurricanes or tornadoes cannot be directly attributed to any person or individual. However, in Texas, mass tort claims may be filed against insurance companies who fail to pay out claims following natural disasters that cause damage to life or property.
More unique mass tort cases can be seen in areas of nutraceuticals, child abuse, false imprisonment, and torts against the state. In Texas, mass tort lawsuits may be filed in a state or federal court. These cases are often consolidated into a multi-district litigation (MDL) in federal court or a consolidated action in a state court to streamline the discovery and settlement process. The MDL is, however, mostly used by plaintiffs in mass tort cases since not all the plaintiffs live in the same jurisdiction or are within the same geographic proximity. It is important to note that in Texas, the burden of proof in mass tort lawsuits lies on the plaintiffs who are seeking damages for injuries caused by the same defendant(s). The damages to be awarded will usually depend on the facts and circumstances of each plaintiff's case. Some of these damages include medical expenses, lost wages, disability, and disfigurement, reduced earning capacity, post-traumatic stress disorder, emotional distress, pain, and suffering, etc. When filing a mass tort case, it is advisable to hire a qualified mass tort lawyer who can help to evaluate one's case and negotiate a favorable settlement on one's behalf.
Mass Tort in Nutraceuticals
Nutraceutical mass tort arises when dietary and nutrition supplements cause adverse effects to many people due to their contents or contamination. The group of people injured by the same dietary supplements may file a claim against the manufacturer of such supplements and recover damages for any injuries suffered as a result. Nutraceuticals usually involve the use of vitamins and other dietary supplements such as minerals (e.g., calcium and iron), herbs (e.g., garlic and echinacea), and products like fish oils, glucosamine, and probiotics. In Texas, a manufacturer can be found liable for payment of damages in respect of any injuries resulting from poor manufacturing practices such as contamination, using the wrong ingredient (or too much or too little of the correct ingredient), or improper packaging and labeling of a product.
A nutraceutical tort lawsuit is, therefore, usually based on dietary supplements that are manufactured incorrectly or supplements that have been improperly marketed. If a nutraceutical lawsuit is based on incorrect manufacturing, this means that although the dietary supplement product is properly designed, something went wrong during the manufacturing process that rendered the product unsafe to use by consumers. An example is when a dietary supplement product becomes contaminated during the manufacturing process. For nutraceutical lawsuits based on improper marketing, this means that the dietary supplement product fails to have proper warning labels to notify consumers of potential side effects. According to the Food and Drug Administration (FDA) Regulations, manufacturers of dietary supplements must label their products and correctly list the active ingredients used in making the products, as well as the amount per serving (dose) for consumers. This duty also extends to the duty to warn consumers about the potential side effects of their products, particularly the risk it may pose to pregnant women, nursing mothers, and children. Failure to provide correct labeling or warning can result in mass tort nutraceutical lawsuits filed by all individuals affected by the manufacturer's negligence.
It is important to note that Texas recognizes the learned intermediary doctrine, which limits a drug manufacturer's duty to warn consumers by providing adequate warnings to a "learned intermediary" such as a doctor or any other healthcare provider, who then assumes the duty to pass the necessary warnings to the consumer. If this doctrine applies to a nutraceutical mass tort case, the plaintiffs may still be able to file a lawsuit. However, the lawsuit would be filed against the prescribing physician based on medical malpractice and not against the dietary supplement manufacturer. Thus, aside from the manufacturer, the prescribing physician that fails to provide the victims with the necessary information, such as information concerning serious side effects, may also be liable for payment of damages. In addition, since prescriptions are sometimes filled with the wrong medication or improper dosage, pharmacists may also be found liable in a nutraceutical mass tort case. Testing laboratories can also be named as a defendant in a nutraceutical tort case if it is shown that these laboratories made a mistake in the course of testing the dietary supplement products and that the products should have never been sold to consumers.
Injectafer iron supplement case is a recent example of a mass tort nutriceutical case in the U.S. Injectafer is an iron supplement injection used for treating people with iron deficiency anemia who are unable to take or tolerate oral supplements. Since 2021, individuals who received Injectafer iron replacement shots have filed lawsuits across the country for hypophosphatemia injuries suffered as a result of the supplement injection. The plaintiffs in these cases claim that the manufacturers of Injectafer have known the adverse effects of the supplement in certain consumers but failed to provide any adequate warning labels or give warnings to medical professionals. Examples of Injectafer lawsuits can be seen in cases such as Munroe v. Luitpold Pharmaceuticals et al., Yova v. Luitpold Pharmaceuticals et al., Crockett v. Luitpold Pharmaceuticals et al., Edwards v. Luitpold Pharmaceuticals et al., amongst others. These cases involved plaintiffs who had taken Injectafer shots and suffered from chronic symptoms of hypophosphatemia as a result. In proving negligence of the defendant(s) in a nutraceutical tort case, the plaintiffs must prove several elements, including:
- Duty of Care: The plaintiffs must show that the defendant owed them a duty to observe reasonable healthcare standards. For example, all manufacturers of drugs and dietary supplements owe a duty of care to all potential consumers and to ensure that the products produced are safe for usage.
- Breach of Duty: Here, the plaintiffs must show that the defendant breached the duty of reasonable care owed to them. For example, the defendant failed to take reasonable care in manufacturing the dietary supplement products or in making prescriptions for the consumers.
- Causation: The plaintiffs must also prove that the defendant’s breach directly led to their injuries.
- Damages: The plaintiffs must show that they suffered injuries or damages as a result of the defendant's negligence. These damages cover economic and non-economic damages such as medical expenses, lost income, pain and suffering, or mental and emotional distress.
The statute of limitations for nutraceutical tort cases is two years under the Texas Civil Practice and Remedies Code. This means that the victims have two years from the date they discover their injuries to file a lawsuit. Failure to file a nutraceutical lawsuit as soon as possible will lead to the case dismissal in court, and the victims would not be able to recover damages from the defendant. If the case is to be filed against a doctor or any other healthcare professional as a medical malpractice claim, the limitation period is also two years under Texas law. However, based on the Texas Statute of Repose, medical malpractice claims must be filed within ten years from the date of the conduct giving rise to the claim. Once this deadline expires, the plaintiffs will be barred from filing a medical malpractice lawsuit in court.
Child Abuse Mass Tort
According to Chapter 261.001 of the Texas Family Code, child abuse refers to the “mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning.” Child abuse also involves any physical injuries that substantially harm a child or any threat of substantial harm that causes physical injury. It is important to note that in Texas, injuries that result from an accident, or reasonable discipline by a parent or guardian, are excluded from the scope of child abuse. Punishment can, however, become child abuse when it exposes the child to a significant risk of harm. For example, when a child is disciplined to the point that they require medical attention, or when the parent or guardian's conduct is ongoing and causes impairment to the child’s physical, mental, or emotional health and wellbeing.
Child abuse also involves any form of sexual assault against a child. The act is usually charged as a criminal offense in Texas and is defined under the state's Penal Code as any sexual activity with a person below the age of 17. The law is gender-neutral and includes vaginal intercourse and other forms of sexual acts. Under Texas law, anyone who reasonably believes that a child’s mental or physical health has been abused or neglected is required to make a report with the Texas Department of Family and Protective Services (DFPS). The duty to report also applies to childcare professionals such as doctors, nurses, teachers, daycare employees, and juvenile detention officers, who have direct contact with children in the course of performing their duties. Failure to make a report of child abuse or neglect as required by Texas law is a criminal offense, which attracts the penalty of fines and imprisonment. A civil action may also be filed against any individual or institution who fails to take reasonable steps in reporting a child abuse case or who actively works towards covering up child abuse incidents on behalf of the perpetrators.** **
In recent years, a growing number of lawsuits have been filed against the Boy Scouts of America in respect of child sexual abuse. The plaintiffs allege that the organization knew about the prevalence of sexual abuse by Boy Scouts leaders against children during camping trips but failed to address the issue. In addition, the plaintiffs provided evidence to show that Boys Scouts had kept files of perpetrators since the 1920s to ensure that these records remained a secret within the organization. In 2021, the Boy Scouts agreed to a landmark $850 million settlement to compensate approximately 60,000 sexual abuse victims. The organization was required to pay out $250 million, with the remaining $600 million to be paid by their 250 local councils in the country.
False Imprisonment Mass Tort
False imprisonment mass tort is an intentional tort or injury claim which involves the unlawful restraint or confinement of several persons against their will and without lawful justification. To prove a case of false imprisonment in Texas, the plaintiffs in a mass tort case must show that:
There was intentional restraint and confinement of person: The plaintiffs must prove that the defendant restrained their freedom of movement and that such restraint was willful and intentional. In determining the intention of the defendant, the court will usually consider the facts and circumstances of the case to determine whether there was a threat or use of force in restraining the plaintiffs. Intentional confinement usually comes in the form of physical restraint of a person or the locking up of a person in a car or building, or restraining a person from leaving a room through the use of force or intimidation.
That the confinement was done without consent: Here, the plaintiffs must show that they reasonably believed that they were restrained or confined in the particular circumstances. In determining reasonable belief, the court applies the "reasonable person" test to determine whether a reasonable and prudent person would believe they have been confined under similar circumstances. For example, there is no false imprisonment if several people were locked in a particular room or building, but there is an exit available through another door that is not blocked.
That the confinement was done without legal justification: To prove this third element, the plaintiffs must show that the defendant(s) had no justifiable reason for the restraint or confinement. Usually, the plaintiff is required to prove that there is no legal basis for the restraint. Examples of lawful bases for the confinement of a person include situations where there is voluntary consent or a lawful arrest by law enforcement officers. The plaintiffs can therefore establish this element by successfully proving that the defendant had no lawful justifications for confinement.
An example of a false imprisonment mass tort case can be seen in respect of the unlawful detention of minors in the country. In 2021, the federal court approved a settlement in a lawsuit alleging the illegal arrest and detention of about 1,500 children at the Rutherford County Juvenile Detention Center in Murfreesboro, Tennessee. The plaintiffs were, therefore, eligible to receive a standard payout of $1,033.33 for each illegal arrest and $4,822.22 for each illegal incarceration. It is important to note that the tort of false imprisonment in Texas is governed by a two-year statute of limitations. Once this deadline expires, the victims cannot file a claim for false imprisonment in court. It is therefore advisable to file a lawsuit as soon as possible to prevent the case from being statute-barred.
Mass Torts Against the State
Mass tort against the state occurs when a group of individuals sues a government agency or its employees for injuries suffered as a result of their negligent conduct or actions. In Texas, mass torts involving the potential liability of a government agency or employee usually follow a unique set of rules. These types of torts are filed under the Texas Tort Claims Act (TCA), which contains specific procedural guidelines which victims must follow when pursuing a claim. The Act partially waives the Texas state's immunity to liability for torts committed by governmental units and their employees. Under the TCA, the state can only be held liable for injuries resulting from car accidents or motor-driven equipment accidents and personal injury or death caused by a condition or use of the tangible property. To establish the state's liability in these cases, the victims of the tort must prove that the employee that caused the accident was acting within the scope of employment. If found that such an employee is an independent contractor, the state would not be held liable for torts committed by such an employee.
A good example of a mass tort against the state is the Camp Lejeune water contamination lawsuit. Between the period of 1953 and 1987, the water supply at the Marine Corps base at Camp Lejeune in North Carolina was contaminated with dangerous chemicals. In 2009, Marines, their family members, and employees at Camp Lejeune began instituting lawsuits against the government under the Federal TCA, claiming that they developed cancer and other serious health conditions as a result of drinking contaminated water on the base. The lawsuits were eventually consolidated into an MDL in the Eastern District of North Carolina in the year 2012. Unfortunately, these lawsuits were dismissed based on the 10-year statute of repose in North Carolina. Some examples of the Camp Lejeune contamination cases include Jones v. The United States, and Shriberg v. The United States, amongst others.
It is important to note that in cases involving car or truck accidents, victims may recover compensation if they have suffered an injury or damage to property. This is in contrast to other forms of torts against the state in which victims cannot recover compensation for damages to property but can only seek compensation if death or injury occurs. In addition, Texas places a cap on the damages that can be recovered in a claim against the state government. According to the Texas TCA, a plaintiff cannot recover more than $250,000 per person and $500,000 per occurrence for bodily injury. In respect of damaged property, the cap is $100,000 per occurrence. A local or municipal government in Texas can also be held liable for damages if they are found negligent in performing certain government functions such as police and fire protection, the failure of which causes harm to many people. However, as in the case of the state government, Texas municipalities are not liable for damages caused to property or for non-mandatory functions that the municipal government fails to perform. In Texas, the cap for damages that can be recovered from a local government is $100,000 per person and $300,000 per occurrence for bodily injury. In respect of property damage, the cap is $100,000 per occurrence. For tort cases against a municipality, the cap on damages is $250,000 per person and $500,000 per occurrence for bodily injury. The cap for property damage is also $100,000 per occurrence for municipalities.
The TCA provides a deadline for filing tort claims against the Texas government, which is set to six months from the date of the accident. Some municipalities in Texas, however, set shorter deadlines for filing the notice of a claim. For example, Houston has a 90-day time limit, while that of Austin, Texas, is 45 days. A written notice is made when filing the claim, which must contain a description of the injury suffered, the identity of the parties injured, the time and place of the injury, and a description of what happened. This is a requirement that must be met before a victim can proceed to file a lawsuit. It is important to note that the requirement of written notice is not necessary if the state governmental unit has actual notice that death, injury, or property damage occurred against the victim. The governmental unit must also have actual notice of the same information that is included in the written notice.
How Will Speaking With an Attorney Help?
Enlisting the services of a mass tort attorney can be crucial in a mass tort case because the mass tort lawyer ensures that the client obtains justice and recovers compensation for the damages suffered due to the defendant's actions. A mass tort lawyer in Texas understands the complex laws governing mass tort cases in the state and can help the victim recover financial compensation for their medical expenses, lost income, emotional distress, hardship, and other damages. Furthermore, a mass tort lawyer critically assesses the elements of their client's case to determine the liability of the at-fault party for payment of damages. In addition to legal representation, a mass tort attorney also provides compassionate support to their clients and ensures that their rights are protected throughout all stages of the litigation process. Other responsibilities of a mass tort lawyer include:
Investigating and gathering evidence: Mass tort lawyers carefully evaluate their client's case and perform a thorough investigation to determine the level of damage and reasonable compensation that may be obtained. They collect relevant evidence useful in proving their client's claims, including eyewitness testimony, police reports, and medical records, to prove the liability of the defendant in court.
Communicating with all parties on the victim's behalf: A mass tort lawyer is also responsible for communicating with the insurance company and legal representatives of the at-fault party on behalf of their client.
Providing Professional Advice: A mass tort lawyer must explain the litigation process of a mass tort case to their clients, as well as their legal rights. The attorney provides the client with relevant professional advice following the client's personal injury and during the trial process. In addition, they advise their clients on whether to settle the case out of court or proceed to trial. A competent mass tort lawyer may also advise their client to seek appropriate medical treatment for their injury to ensure their damages are supported by medical records.
Negotiating settlements on behalf of the victim: One of the most important reasons for hiring a mass tort attorney is to have a legal professional who would help in negotiating settlements on one's behalf. An experienced mass tort lawyer knows how to deal with insurance companies and negotiate a favorable settlement on behalf of the victim. Such an attorney helps to ensure that their client obtains the financial compensation they deserve.
Representation in court: It is important to note that not all mass tort cases go to trial, as some are settled out of the courtroom. However, the case may proceed to trial if the at-fault party cannot reach a fair settlement with the victims. When this happens, a mass tort lawyer has the responsibility of representing their client during the trial process and ensuring that they obtain fair compensation. It is therefore advisable to hire a qualified lawyer with good trial experience who can adequately argue one's case before a judge or jury.
Under Texas law, all tort cases are to be filed within two years, after which the action becomes statute-barred. This means that the court is unable to exercise jurisdiction over the case. Time begins to run from the date the accident occurs or when a victim discovers an injury. For asbestos-related and silica-related lawsuits, time begins to run from the date of the exposed person’s death or the date when a legally compliant report is served on the defendant, whichever is earlier. It is therefore essential to enlist the services of a mass tort lawyer as soon as possible to prevent the case from being dismissed in court.
