Mass Tort Litigations

Mass tort litigation is a civil action in a state or federal court against one or more corporate defendants resulting from similar injuries to a group of people. The injuries occurred due to the same or similar action or omission of the company, such as a commercial plane crash, train accident, toxic contamination, defective medication or product, and others. This civil action comprises numerous plaintiffs, whom the court treats as separate individuals, and one or more defendants. A plaintiff could be a direct product user or a bystander affected by the product. The plaintiff must establish that the injury emanates directly from the defect under proper use as intended.

How Is Mass Tort Different From Other Product Liability Cases?

Product liability is that aspect of Texas law that holds manufacturers or suppliers responsible for any injury caused to the consumer while using their products. Aggrieved consumers could individually sue the manufacturers or make a joint lawsuit. There are two types of joint cases; class action and mass tort. A mass tort is similar to class action except that in mass tort, the burden of proof is placed on every individual in the case as the court considers each plaintiff individually. As such, the settlements are usually large, unlike in class actions where the judge treats all claimants as one entity with one burden of proof, and compensation is small when shared amongst the group.

Consequently, mass tort has some advantages and disadvantages attached to it. Therefore, a product liability attorney is in the best position to advise on the reasons a specific claim is best handled as a mass tort, and an experienced mass tort attorney will explain the following advantages:

• It is possible to file a mass tort in either state or federal court
• An attorney can publicize the case to spread risk awareness
• A mass tort can handle multiple plaintiffs at once
• It benefits from media publicity
• It reduces the number of cases to improve the efficiency of the legal system
• Each plaintiff has a reduced financial burden to cover legal expenses
• There is accommodation for new plaintiffs to join an active lawsuit
• Some defendants are pressured to settle out of court and require less proof
• Settlement focuses on individual circumstances.

Some disadvantages of mass tort include:

• Plaintiffs have reduced visibility in some areas of the case
• There is the risk of longer litigation time for complex cases
• Not all attorneys can handle the complexities of mass tort cases.

How Do Mass Attorneys Manage Mass Tort Cases?

Mass tort cases are usually intricate, fast-moving, and significant, requiring an experienced attorney for proper management. Mass tort attorneys or firms handle such cases as they cover different jurisdictions and issues with a skilled and experienced team.

Consequently, the attorneys or firms share roles (national, local, or expert council). For a successful outcome, each attorney performs optimally in each respective role and understands other functions. Additionally, mass tort attorneys utilize virtual law firms for effectiveness.

How Do Mass Tort Attorneys Deal With Conflicts in Joint Representation of Defendants in Mass Tort Litigation?

An attorney can represent two or more clients in the same case, where the attorney's obligations to each client could overlap, or conflict of interest could arise between the clients. Mass tort attorneys deal with these conflicts in the joint representation of defendants in mass tort litigations through the following steps:

1. The mass tort attorney first ascertains ethical grounds and legal grounds for joint representation
2. Gets written informed consent and joint representation agreement from each client
3. Utilizes continued representation after withdrawal.

What Are Informed Consent and Joint Representation Agreements?

Informed consent and joint representation agreements are written declarations of the clients agreeing to the representation after fully disclosing what a joint representation entails and possible drawbacks. This agreement says the clients are fully aware of potential conflicts and the attorney's proposed course of conduct and give the attorney joint representation authority.

The American Bar Association (ABA) codified this in the Model Rules of Professional Conduct 1.7 that the presence, nature, implications, potential adverse effects, and benefits associated, if any, with the standard representation are fully disclosed to each impacted or potentially affected client before they agree to such representation. The attorney must inform the clients of the possibility of the joint representation failing and its recourse, such as engaging a new attorney, which means extra cost.

What Does Continued Representation After Withdrawal Entail in Mass Tort Cases?

After withdrawal in mass tort, continued representation means that an attorney could continue representing one party of the previous joint representation. At the same time, the other withdraws due to a conflict of interest. This is possible by including advance conflict waiver clauses in the mutual agreement at the onset.

These waiver clauses establish steps to take in the advent of conflicts with clauses different across cases. Some clauses will prohibit the attorney from working with any of the clients when a dispute arises. At the same time, some agree to continued representation after the withdrawal of a party or parties. Furthermore, some clauses outrightly list parties the attorney will retain, while others find alternatives or use the attorney's discretion. The information disclosed in the waiver will determine its resolution.

However, some advance conflict waiver clauses are challenging to enforce based on the peculiarities of the conflict. The ABA Model Rules 1.7 prohibits the attorney from continuing representation if the conflict will materially hinder the attorney from discharging services as required on behalf of the client.

Notwithstanding, some conflicts cannot be waived, such as if the representation will pit the assertions of one party against the other in the same lawsuit or another ongoing case. Similarly, if the client refuses the attorney to disclose confidential information with the other party, the attorney shall not ask the client to consent. In these cases, the attorney shall withdraw representation from the parties affected to the degree The Texas Disciplinary Rules of Professional Conduct 1.06 requires for any subsequent representation to comply with these Rules.

Joint Representation Checklist

Joint representation checklists are essential points to note before and during a joint representation to mitigate conflicts. These include:

• Distinguish clients and the issues to be represented
• Determine if there is a conflict of interest in jointly representing the clients in these issues
• The attorney should consider whether joint representation is appropriate personally and for the clients in all circumstances.
• Discuss with the clients the possibility of future conflicts arising during representation
• Attorneys should discuss confidentiality in a joint representation with the clients.
• Obtain a written agreement from each client to share confidential and privileged information with all parties
• Consider including an advance conflict waiver in the joint agreement
• Determine with each client in writing who is responsible for paying your fees and expenses
• Apply the duties of confidentiality, loyalty, and communication to each client equally
• Be conscious of any potential conflicts of interest
• If a dispute of interest arises during the representation, appraise and handle it immediately before proceeding with the representation.

What Is Multidistrict Litigation (MDL) in Mass Tort?

Multidistrict Litigation (MDL) in mass tort is the process of grouping all mass tort individual cases across different districts for pretrial proceedings in a federal district court, after which such claims are tried in each original community.

Types of Mass Tort

A mass tort is when individuals file lawsuits against an entity for different injuries or harm that emanated from the same or similar act or omission. Mass tort seeks compensation for each plaintiff's damages, and the plaintiff must demonstrate that the injury occurred while adequately using the products as intended.

There are different types of mass tort, which are as follows:

Defective Medical Device Mass Tort

This is a mass tort case for defective medical devices that might have caused death, introduced new health challenges, or exacerbated existing illness due to errors in the machine and its operations. Such errors include an IUD (Intrauterine Device) migrating or fragmenting in the body and damaging internal organs or a surgical warming unit causing infections at surgical sites.

Medical devices are crucial in saving people's lives, but it causes irreparable damages, with some leading to death regarding poorly designed products, manufactured, tested, and labeled. To repair some damages requires numerous expensive and invasive surgical procedures.

Defective Product Mass Tort

Defective products are flawed products that cause injury to their user or anyone in the vicinity when properly used. Product defects happen during the design, manufacture, or warning stage.

If it occurs during the design stage, it means the blueprint of the product is faulty, and all products from the company bearing that design are defective.

Errors during manufacture mean the product deviated from its design during production, probably due to negligence, rendering it dangerous to consumers. Unlike in defective design, only a particular production batch of the product is dangerous, not the product inherently.

Warning defects happen during marketing when the producer fails to warn or sufficiently warn about the risks and side effects associated with the use of the product. Some products sometimes carry misleading and unverified claims during advertising or on labels. This is also applicable if followed instructions or warnings cause harm to the consumers.

Dangerous Drugs Mass Tort

Prescription drugs may cause unintended side effects that manufacturers fail to warn the physicians or consumers about. These drugs might aggravate the existing illness, like in the case of diabetic ketoacidosis from SGLT-2 inhibitors, or introduce new diseases or injuries like ovarian cancer associated with the prolonged use of talcum-based powder. These drugs might affect large groups of consumers in the same or similar ways that the manufacturers are held accountable.

Mass Toxic Tort

Mass toxic torts occur when a large group of people suffers varying illnesses after exposure to the same poisonous substances or chemicals from a particular area or product. Such individuals form a mass tort for damages and compensation and must prove that the substance is toxic. Likewise, the plaintiff must prove exposure and correlation to the injuries. Examples of toxic substances include. Asbestos in household appliances, talcum powder in Johnson and Johnson Baby Powder and other products, lead in paint, and Tetrachloroethylene (PCE) in factories. Effects of toxic exposure are not noticeable until years after exposure, which might hinder victims from ascertaining the source of the vulnerability and liable parties.

Environmental Tort

Environmental and industrial tort involves artificial activities, corporate oversight, or accidents that release toxic substances into the atmosphere or contaminate land and water. A famous example is the bombing of the World Trade Center, the Twin Towers, which released harmful asbestos fibers into the atmosphere that infected survivors and first responders. As with mass toxic torts, victims must prove causation as exposure to the substance.

Natural Disaster Mass Torts

Natural disaster mass tort is similar to environmental mass tort except that this involves natural catastrophes, "acts of God." Natural disasters are events of natural causes beyond one's control, which damage properties and cause injuries or death. Tornadoes, lightning, landslides, volcanic eruptions, floods, tsunamis, wildfires, and hurricanes fall under this category and are hard to prove because no entity is responsible. However, plaintiffs band in a mass tort against insurance companies who fail to pay or underpay rightful claims. In 2014, New Jersey and New York homeowners sued FEMA (Federal Emergency Management Agency) through its National Flood Insurance Program (NFIP) for no payments or low payouts. The lawsuit spurred FEMA to review its processes and pay policyholders additional amounts.

Famous Mass Torts Cases

The following are famous mass tort cases that are either ongoing or resolved:

• Orange County Oil Spill
• The Mirena IUD injuries
• Hyperion Sewage Spill
• Belviq and Belviq XR weight loss medication causing cancer
• Camp Lejeune Water Contamination
• Baby Formula NEC (Necrotizing Enterocolitis) Lawsuits
• Johnson and Johnson Baby Powder Lawsuit
• Paraquat herbicide injuries
• Elmiron Lawsuit
• 3M Earplug Lawsuits
• The Bair Hugger Surgical Warming Blanket infections
• Zantac cancer risk
• Transvaginal Mesh Injuries
• Hernia Mesh Lawsuits
• Roundup Litigation
• Asbestos Litigation
• The Boy Scouts' sexual abuse.

What Is Preventive Consultation and ADR in Mass Tort?

Preventive consultations are precautionary methods, such as comprehensive risk analysis, education, assessment warning and instruction language, and electronic data management and retention, which corporations employ to avert litigation from the beginning.

ADR (Alternative Dispute Resolution) is a method of resolving lawsuits without a court trial. Mediation and arbitration, neutral evaluation, and settlement conferences are methods employed in mass tort ADR. In mediation, an impartial mediator, who is not part of the dispute, helps to dispute parties better communicate and resolve grievances. At the same time, arbitration employs an unbiased person who reviews evidence from both parties and determines the dispute's outcome. There are two types of arbitration: binding and non-binding. Binding arbitration means the disputing parties have waived rights to a trial and will accept the arbitrator's decision. Non-binding arbitration means both parties have the right to proceed to trial and discard the arbitrator's decision.

Preventive consultation and ADR saves time, are less expensive, preserve relationships, increase each party's control over the process and the outcome, increase satisfaction, and enhance attorney-client relationships.

Disputing parties in a mass tort could elect for voluntary ADR or a Texas court-ordered ADR. Texas Civil Practice and Remedies Code 7§154 itemize legal dispute resolution procedures, including mini-trials, summary jury trial, and impartial third parties.

Why Are Mass Torts so Difficult to Resolve?

Mass torts are challenging to resolve due to their complexities in the following areas:

• Factual and Legal Considerations: Firms taking on mass torts, plaintiffs' and defendants' attorneys, must believe that the anticipated value of the litigation is high enough to justify a significant investment of time and money. This is challenging because both parties have differing expectations of likely resolution.

• Difficulty Proving Causation: In some cases, proving causation between exposure or product use and claimed injuries is difficult and time-consuming. This is especially applicable in cases with latent injuries, where scientific evidence of link may be uncertain. Similarly, plaintiffs must establish that their claims are financially significant. This may necessitate additional jury trials.

• Large Plaintiffs: due to the size of the plaintiffs, it takes time for the attorneys to prepare the case. Different attorneys in multi-districts need to synchronize their prosecution, which is hampered by the volume of the plaintiffs. Data entry, gathering of evidence, and interviewing witnesses are time-consuming endeavors. The judge and jury will treat each case for compensation as claims and injuries differ.

• Conflict of Interest: Plaintiffs have diverging interests and claims in a mass tort. Although the general objective is to get compensated for hurts, it spells different realities for each individual. Some plaintiffs might be less exposed than others, requiring lesser compensation, while those with extensive damages will need higher settlements and would rather stay the course of the case to ensure that. Equally, defendants with less culpability will settle the case earlier, while co-defendants with higher culpability will fight the case to reduce the payout.

• Risk Profile: In mass torts, divergent risks exist between the plaintiffs and defendants. Plaintiffs want to expediently resolve the case to reduce capital cost, while defendants prolong settlements to curb other potential litigation from arising. Settling a claim too early might incite more lawsuits, including questionable ones. This asymmetric objective elongates the litigation until it reaches the limits of exposed persons willing to sue or the available defendant assets.

• Aggregate Compensation: Unlike class actions, claims in mass tort differ; as a result, each case is decided individually. Plaintiffs' attorneys use the aggregate (inventory) or global (matrix) settlements approach to propose compensations. Defendants utilize this approach for low payouts, especially with the global settlement option. The defendants offer a compromise to pay all active global claims in international settlements. The drawback is that the sum is usually tiny to address plaintiffs' claims individually when divided. Aggregate payments sum up the minimum claim amount of all an attorney or firm's clients as the least amount to accept during negotiations. Meanwhile, some attorneys believe pursuing individual claims might yield a better result in these cases.

How Does a Mass Tort Lawyer Get Paid?

Most mass tort lawyers get paid either through contingency fees or billable hour arrangements.

What Is a Contingency Fee?

A contingency fee agreement is when the lawyer gets paid only when the claim is successful and the case is resolved in favor of the plaintiff. The lawyer bears the burden of the litigation and gets paid an agreed percentage of the total compensation. The contingency fee reduces the financial burden on the plaintiff and encourages more plaintiffs' participation in the litigation. What's a Common Contingency Fee Percentage?

Contingency fee percentage varies from one attorney to another. Typically, the complexities of the case and the risk involved affects the percentage fee. Low-risk cases with a higher chance of recovery could have a low percentage of 20% to 25%. High-risk cases with lower recovery opportunities start with 35% of the settlement to 45%. The expected contingency fee percentage is ⅓ or 33%, but this differs across jurisdiction, attorney, and case severity.

What Is Billable Hour Arrangement in Mass Tort Cases?

On the other hand, the billable hour arrangement imposes the financial burden of the litigation on the plaintiff whether the claim is successful or not. The billable hourly structure differs from hourly wages in that a law firm will have more people working concurrently on the case with varied hourly rates. A paralegal, a junior attorney, and a senior attorney might jointly work on the lawsuit and bill a client $100, $250, and $400, respectively. This method is usually costly and might require a retainer fee that further strains the client. However, defendant attorneys operate this arrangement with their clients.

What Is the Difference Between Fees and Costs in Mass Tort Legal Representation?

Fees in mass tort legal representation cover the attorney's legal services, expert's knowledge, experience, and time, while costs cover all incurred expenses from filing the claim through litigation. Legal cost includes expert witness fees, medical reports cost, document copying cost, court filing fees, database management, postage, and other miscellaneous expenses.

Legal fees and costs payment agreement may differ based on the case or attorney. The attorney might require payment before, during, or after settlement. Additionally, the contingency fee percentage might apply before or after legal costs are deducted from the total compensation.

Can Mass Tort Attorneys in Texas Help People From Anywhere in the US?

A mass tort attorney in Texas can help people from anywhere in the US. Generally, attorneys are barred from practicing in states outside of their licensed area of jurisdiction. Only attorneys called to the bar in a state can appear in a state court. To work in other states on a particular lawsuit as an out-of-state attorney, the attorney must collaborate with an attorney or firm in that state and file a "pro hac vice" motion, which means "for this occasion," to appear in court only on that lawsuit. If a court appearance is not required, the attorney can represent a client in another state in any legal capacity (e.g., arbitration, expert opinion, settlement conference, and others).

Mass tort claims are filed in either the defendant's state jurisdiction, the plaintiff's home state, or the state where the injury occurred. Mass torts are multi-district cases in a federal court with multiple plaintiffs and attorneys. This makes it possible for Texas state attorneys to work on any case nationwide. Furthermore, not all mass tory cases proceed to trial. A Texas attorney can negotiate settlements for clients in other states.

An individual that has suffered injuries due to defective product, toxic tort, and other types of mass tort can get legal help through:

• Online search with keywords such as "mass tort attorneys near me," "toxic mass tort attorneys in [location]," "mass tort firms near me," or other specific words related to the claim
• Speak with family and friends to recommend mass tort attorneys around the area
• Visit the county or local bar associations
• Contact the city courthouse
• Seek legal aid societies
• Use the state court's online attorney directory.

Assess the mass tort attorney's experience and competency to ensure suitability by asking the following questions:

• How many similar cases have been handled in the past?
• What is your success rate?
• What payment structure do you operate, contingency fees, or billable hour arrangement?
• What is the exact contingency fee percentage?
• What is the payment structure and timeline?
• Are there any plaintiff expenses shared in this mass tort?
• Who pays for costs and expenses?
• When will cost and expenses be deducted, before or after legal fees?
• What is the statute of limitations?

Most attorneys offer free first consultation where the prospective client asks the questions mentioned above. They generally announce this on their websites. Note down specific questions to ask about the case before the talk, and attend with all relevant documents available to support the claim.

If faced with a possible mass tort case or injury, contacting a mass tort attorney as soon as possible is advisable so as not to exceed the statute of limitations. Mass tort attorneys are well versed in its complexities. They have past expert experience, contact with relevant judicial personnel, and skills in handling such complex matters. The Texas Bar Association has an attorney directory portal with six search filter categories for refined results. Some approved licensed Texas attorneys are Adley Law Firm, Ltd in Houston, Adkisson Law Firm, PLLC in San Antonio, and Leger, Ketchum & Cohoon, PLLC in Houston.