by Kay L. Van Wey
A booming voice from your television beckons…
“HAVE YOU OR A LOVED ONE BEEN INJURED BY (fill in the name of the drug or medical device of your choice). IF SO, YOU MAY BE ENTITLED TO A CASH AWARD!”
For tort lawyers who do not do these types of cases, this area of law may be a mystery. Are they class actions? Where are these cases filed? What should I do if one of these cases comes across my desk?
Here are the six very basic things you should know about mass torts.
1. Although the television commercials may seem distasteful to some they are a necessary means of reaching victims who have been seriously injured by dangerous drugs or defective medical devices. It is not uncommon for these drugs and devices to affect tens of thousands of patients.
So, for those of you who do not handle these types of tort cases, here is a very, very basic overview.
2. Mass torts are not class action lawsuits. Rather, they are consolidated actions, typically filed and litigated under the auspices of the U.S. Judicial Panel on Multidistrict Litigation (JPML), pursuant to 28 U.S.C. § 1407 et seq. The purpose is to consolidate all of the cases for pretrial proceedings and streamlined discovery. The cases are often filed as individual cases. They involve common issues of fact, and are typically against one or a few defendants. The JPML selects a federal district court to handle the proceedings in what is known as Multidistrict Litigation (MDL). The litigants are allowed to suggest where they believe the action should be transferred, and this is a very important part of the process to both sides of the litigation.
3. These cases may be filed in any U.S. District Court, but will be transferred to an existing MDL. These are commonly referred to as “tag-along actions.” In many MDLs, the Court will enter a Case Management Order (CMO) to allow cases to be “direct filed” into the MDL. Also, in many instances, the Court will allow “short form complaints” to be filed so that only the basic information about the claim needs to be provided. A lawyer who is in good standing in any U.S. District Court may practice before the JPML court without the need to obtain local counsel.
4. Because the cases are consolidated for pre-trial proceedings, you may not perform any discovery, other than what has been provided for by the MDL. Typically, this means that rather than doing individualized written discovery, the Plaintiffs will answer set questions and provide standardized information, usually referred to as “Plaintiff Fact Sheets” (PFS) or “Plaintiff Profile Forms” (PPF). Defendants will also provide information and responsive documents to a single standardized discovery tool. Oral depositions are certainly allowed, but the oral depositions are typically taken by a member of the Plaintiffs’ Steering Committee.
5. As the litigation progresses, certain cases may be selected for either a discovery pool or for bellwether trials. These are useful to both sides to assess how juries respond to the evidence, and hopefully, to help both sides evaluate the cases for settlement.
6. Settlements in mass tort cases can occur in several different ways. The Plaintiffs’ Steering Committee has the authority to enter into a global settlement on behalf of all the cases filed in the MDL. Each case is evaluated individually to determine what percentage of the award the litigant should receive. A matrix, formula, or points system is often used to make the process more impartial. Settlements may also be offered in individual cases, or more typically, large groups of cases. In either case, every litigant has the opportunity to “opt out” of any settlement and ask that their case be remanded to the court with appropriate venue for a jury trial. In this scenario, the trial lawyer has access to the entire pre-trial discovery already done in the case.
If this is enough to make your head swim, do not worry—the wonderful thing about mass torts is that they can be a collaborative process. And despite the sour taste that some of those television commercials leave with some people, this is truly litigation that often helps tens of thousands of people who have been harmed by a dangerous drug or medical device. Without this type of litigation, individual litigants would often have no recourse, and defendants would have a very difficult time litigating massive numbers of individually filed cases throughout the country with conflicting rulings and multiple depositions.
Kay L. Van Wey, of Van Wey Law, PLLC, is a board certified Personal Injury Trial Lawyer and patient safety advocate. She can be reached at firstname.lastname@example.org.