Building a Mass Tort Case

Mass tort litigation in Texas differs from other forms of litigation due to its size, complexity, and rapid pace. Mass tort lawsuits are legal actions in which several plaintiffs seek compensation from the same defendant(s) and for the same occurrence or chain of events. They are often filed when an incident or a product has affected a large number of individuals. Affected parties might seek compensation in the form of significant settlements or judgments through mass tort litigation.

Mass tort cases protect the public by putting large corporations on the same level as those they may have harmed. However, they are often complicated, and the procedure can overwhelm the participants. If the parties involved in the case, particularly the plaintiffs who filed the lawsuit originally, are not organized and prepared early on, reclaiming control and obtaining their proper compensation may be difficult. They can avoid negative outcomes if they properly build their cases and recruit skilled mass tort attorneys or law firms.

What Are the Most Common Types of Mass Tort Lawsuits?

The most common types of mass tort lawsuits in Texas include but are not limited to:

• Product liability mass torts: Defective and unsafe products are among Texas' leading causes of mass tort litigation. Generally, companies and manufacturers have a legal obligation to guarantee the safety of their products and to offer appropriate information to their customers. Individuals who have been hurt due to using the company's product have the right to hold the entity liable for their injuries. Product liability mass tort cases may arise from:

  • Manufacturing faults: These claims assert that a defect in the production process rendered the product unsafe for use.
  • Design faults: These claims imply that a flaw exists in the product's design and, as a result, that the product poses an inherent risk to users.
  • Failure to provide appropriate warnings or instructions: This mass tort action alleges that the manufacturer failed to notify consumers of potential hazards, resulting in the customers' injuries.

• Mass toxic torts: These mass tort claims are filed when people suffer injuries or illnesses from direct or indirect exposure to a chemical or toxin. People can be exposed to toxins in various ways, including coming into contact with a dangerous chemical while working or accidentally breathing harmful mold or asbestos at home.

• Defective medical drugs and devices mass torts: These cases involve hazardous or defective medications and medical equipment. Drugs may have unexpected and dangerous adverse effects that the manufacturer failed to inform consumers or physicians about; similarly, medical devices may contain flaws that prohibit them from performing their intended function and cause harm to patients. The manufacturers of these medical devices are held liable for any defects.

• Disaster mass torts: These claims result from catastrophes that harm many people, including man-made or natural disasters that cause significant property damage and human injury or death. It is worth noting that, while some entities might be held responsible for man-made catastrophes such as large apartment fires, natural disaster mass torts may be difficult to resolve because no single entity may be solely liable for the disaster. Still, insurance companies that fail to pay out affected entities in the aftermath of natural catastrophes can be held accountable.

What Arethe Stages of a Mass Tort Case?

A mass tort action happens in different stages:

• Review relevant records
  This phase is critical in determining if the plaintiffs have legitimate claims that can be addressed in court. To do so, mass tort attorneys or law firms must evaluate numerous documents, such as plaintiffs' declarations of damages, medical records, etc. If the potential party has a valid claim, the case can proceed.

  It is important to note that settlements in mass tort lawsuits are large. As a result, defendants will go to great lengths to demonstrate that they are not responsible for damages. Plaintiffs must supply their counsel with all relevant data to avoid costly mistakes or surprises. If clients provide their attorneys with all essential details, they will be better prepared to defend their clients' interests.

• Establish the uniformity of the plaintiffs’ injuries
  Although each plaintiff has their case within a mass tort, attorneys must create a single case against a defendant. As such, the structure of the lawsuit must be identical in some way, and the plaintiffs must claim to have suffered similar injuries. For example, suppose the plaintiffs allege that a certain medical device caused their injuries. In that case, the attorney must find commonality among the claims to prove that the device was the cause of the plaintiffs' trauma.

  This is because only a small number of cases will determine the overall path that the other cases will follow. As such, if the cases do not follow an overall pattern of the cases picked, some affected parties may be ineligible for compensation. They will probably have to file a new and separate case.

• Filing the lawsuits
  Attorneys can collectively consolidate large tort claims by filing them in the appropriate court. As a result, the process is accelerated and more convenient for all parties involved. Additionally, the courts support consolidation because it makes the best use of limited resources by resolving multiple comparable claims at the same time.

• Bellwether trials
  Before holding hearings for every case, the courts often try a sample of cases. These sample trials are known as "bellwether trials." Bellwether cases are a trial runs for the court to evaluate how the other cases will go. Their outcomes are essential because they set the stage for the other cases. If the courts favor the defense in a bellwether case, the other cases do not even go to trial.

• Reaching a settlement or resolution
  The last phase is the resolution or settlement of a mass tort case. Because various mass tort actions have differing degrees of complexity, resolution options and timelines might vary greatly. Most cases are resolved via settlement because trials cost significant time and money. It is often in the best interests of all parties concerned to negotiate a fair settlement rather than pursuing all claims in court. This is because, even when a trial is a success, there is always the option of appealing the judgment, which may further complicate and delay resolution.

Overall, there is no predefined time frame for how long all of these stages take. However, mass tort cases often take longer than individual lawsuits because the issues at stake are more complicated, and more plaintiffs are involved. On the other hand, the potential benefits of sharing evidence and litigation costs often outweigh the increased time necessary to conclude the lawsuit.

Settling or Going to Trial for Mass Torts

Trials and settlements are the most common approaches to resolving mass torts. Depending on the circumstances and facts of the case, either of these techniques might be used to resolve a mass tort case. In a trial, a judge or jury evaluates the evidence to assess whether or not the defendant is liable for the damages alleged by the plaintiff. The trial also allows the defendant(s) to refute the plaintiffs’ assertions and provide evidence related to the dispute.

On the other hand, settling or reaching a settlement is an alternative to trials. It often occurs when the defendant accepts some or all of the plaintiffs’ claims and decides not to contest them in court. A settlement agreement usually requires the defendant to make a monetary payment to the successful plaintiff. In mass tort cases, the facts of each plaintiff's case are assessed on their own merits. This assessment considers issues such as exposure, causality, injuries, and damages caused by the defendant’s actions or inactions.

After being notified of the amount of compensation that has been proposed for them, the plaintiffs have the option of deciding whether or not to settle. If the parties to the mass tort action cannot reach a collective settlement, each of their individual suits may be tried or settled out of court.

Most tort-related legal disputes, including mass tort claims, are settled out of court. Settlements allow parties in the lawsuit to avoid the unpredictability of trial outcomes and delays.

What Are the Settlement Strategies for a Mass Tort Case?

Along with traditional courtroom trials and out-of-court settlements, alternative dispute resolution (ADR) is becoming an increasingly crucial component in mass tort litigation. ADR is a spectrum of less expensive and speedy alternatives to litigation in which a “neutral” assists disputing parties in reaching a resolution.

A neutral is a third party that the litigants employ to be impartial during the method of conflict resolution that the parties have chosen for themselves. For instance, a neutral may be an arbitrator or a mediator. A mediator assists in reaching an agreement that is acceptable to all parties. A mediator does not make a decision in a dispute. In contrast, an arbitrator functions more like a judge, deciding the outcome of a case based on evidence and applicable laws.

ADR helps expedite mass tort cases during settlement negotiations and pre-trial hearings. It encompasses a wide range of dispute resolution strategies, including mediation, arbitration, settlement conferences, etc. The type of ADR used in a mass tort dispute will vary depending on the nature of the dispute and the limits imposed on it by the disputing parties or the courts.

What Is a Bellwether Trial?

Bellwether trials constitute a representative sampling of the general plaintiff population in a mass tort case. They are sample trials whose outcomes are intended to show the parties engaged in the larger action what they could reasonably expect if their case went to trial. It identifies litigation trends and helps plaintiffs and defendants decide how to proceed with their cases. Attorneys for both sides use the outcomes of the bellwether trials to facilitate and influence settlement negotiations.

Overall, the procedure helps shorten the legal process and develop the most efficient approach for resolving pending matters.

Case Selection for Bellwether Trials

Based on the guidelines, regulations, and criteria set by the Judicial Panel on Multidistrict Litigation, an MDL judge, and sometimes a computer, decide which cases serve as candidates in the bellwether trial. These selected cases usually provide a representative sample of all the claims that have been filed. After selection, the attorneys conduct fact discovery to verify the claims. As the process of fact discovery proceeds, both parties can select the cases that best improve their chances of success.

Only a small number, usually less than ten, are chosen for the bellwether trials. Some factors, including the following, influence the number of cases selected for bellwether trials:

• The scope or size of the lawsuit
• The defendant's willingness to settle
• The extent of injuries or losses
• The preliminary results of the bellwether trials.

A party's chances of being picked for a bellwether trial can be increased in various ways, including:

• Participating in the judicial proceedings
• Submitting all relevant documents and plaintiff questionnaires as soon as possible
• Responding quickly to any attorney demands.

What Are the Benefits of a Bellwether Trial?

Participating in a bellwether trial benefits all parties involved by enhancing their experiences, capacities, and competencies. The procedure allows plaintiffs to present evidence and focus their claims on the areas of their case with the highest probability of being supported in court. It also helps to reduce and manage legal costs. On the other hand, a bellwether trial allows the defendant to carefully consider whether to continue the litigation or obtain an out-of-court settlement.

Furthermore, when hundreds of plaintiffs file claims against the same defendants, it may not always be practicable to try each case independently. As such, bellwether trials help the legal system save time and money by consolidating these cases. They are also significant because they provide judges and legislators with insight into future legal tendencies and trends.

Mass tort litigation attorneys can also use bellwether trials to put their strategy to the test and to gauge the reaction of the judge and jury to their actions. From the outcomes, they can strategize to improve their position when negotiating future cases, which might lead to a larger global settlement.

What Challenges Do Mass Tort Litigation Lawyers Face?

The attorneys who represent clients in mass tort actions have unique challenges. Among these concerns are:

• Time Management
  It is critical in mass tort litigation to ensure that all relevant claims, petitions, motions, and documents are filed with the court on time and to manage the deadlines for various activities. Considering the large number of plaintiffs involved, efficient time management is a common challenge that mass tort legal representatives face.

  However, outsourcing critical duties such as administrative labor, monitoring expenditures, deadline management, etc., frees attorneys' time to efficiently manage mass tort claims.

• Case Management and Organization
  In mass tort cases, mass tort law firms must manage a vast number of challenging cases at the same time while going through the legal procedure. This involves meticulous management of records, claims, and parties. As a result, mass tort litigation administration has the potential to become challenging and time-consuming very quickly.

  Hiring a case management firm with experience in mass tort litigation may result in positive outcomes, including allowing attorneys to delegate these tasks and focus on effectively advocating for their clients.

• Retrieval of Documents
  Document retrieval is a massive task in mass tort litigation. To properly defend claims, mass tort firms must gather thousands of documents. Requesting, compiling, and examining these documents amount to a significant workload for mass tort attorneys. However, working with a case management organization with automated document retrieval systems may help save a significant amount of time and money. Furthermore, some case management organizations may handle authorizations and any necessary follow-up to ensure that all documents are collected promptly and thoroughly.

What Is Mass Tort Funding

Mass tort litigation funding is an advance on the proceeds of a case settlement. It is a loan that gives parties in mass tort action funding to help them meet their current expenses by using the money from their future settlement as collateral. When a case or corporation receives funding, the probability of failure due to the costs is lowered.

Mass tort funding assists in the following ways:

• Funding for plaintiffs: Mass tort lawsuits can drag on for years, especially if the defendant delays their process on purpose as a litigation strategy. Even if the parties reach an amicable settlement, it may also take years before the plaintiffs receive compensation. During this period, affected parties may be stuck with increasing bills and debt due to their physical or monetary impairment. Funding for mass tort action provides parties with the resources they need to cover their present bills and avoid bankruptcy while fighting for a more favorable settlement.
• Funding for attorneys: Similar to mass tort claimants, attorneys bear costs associated with the litigation while waiting for settlement funds. In most cases, mass tort attorneys operate on a contingency fee basis, which means they do not get paid unless and until the lawsuit is won. Attorneys take a considerable risk when they have to pay out of their own pockets. This is especially true when the lawsuit expenses are much greater than originally expected, which might happen if more plaintiffs join the suit or defendants stall in the settlement process.

Mass tort funding is a "non-recourse loan," which implies that the borrower’s finances and assets are not at risk because their settlement is the only source of cash available for repayment of the non-recourse loan. If the case is unsuccessful, claimants will not be required to repay the loan.

How Much Does Mass Tort Funding Cost?

The expenses of supporting mass tort action vary significantly from case to case. Each case has a different set of facts, number of claimants, and level of complexity. All of these factors are considered when estimating the amount of mass tort funds required. Only after conducting a comprehensive inquiry into the case can an accurate estimate of the costs involved be made.

It is worth noting that although mass tort funding poses no risk to the applicant's cash or assets and is easy to qualify for, they are not always necessary. Mass tort funding is deemed a viable choice if:

• Plaintiffs’ are having difficulties fulfilling their current financial responsibilities.
• Plaintiffs’ have suffered severe injuries, incurred large expenditures, or lost significant property due to the defendant's actions.
• The defendant is offering affected parties a substantially less settlement than they deserve.