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Gibson: Managing drug and medical device mass-tort litigation

November 20, 2013
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Indiana Lawyer Focus
Gibson Gibson

A common mistake is the belief that a mass tort and a class action are interchangeable terms. While the paths of class actions and mass torts may cross, they are separate and distinct legal proceedings. A class action is a single lawsuit where one person brings a claim for many people who have suffered the same damage from a single product. A “class representative” brings the lawsuit not only for herself, but also for everybody in the group who may be similarly affected. A mass tort involves multiple people injured by the same product, but damages for each plaintiff can be vastly different. Like most personal injury cases, every person’s medical history is relevant in mass torts and that history is relevant to the extent of the damages caused by the defective product. So unlike a class action, a firm represents each person individually in a mass tort, and each case is worked up like a traditional personal injury case.

An example of a mass tort could involve a pharmaceutical company that manufactures and sells a bad drug that injures people. Because not everyone will suffer the same extent of injury, the cases are best handled as mass torts. A defectively designed drug, or a drug with insufficient warnings, can cause an epidemic of harm. When that occurs, the injured person will need his or her own lawyer to bring an individual lawsuit. Class actions are simply not good mechanisms to get personal injury damages in a drug case.

How to manage a mass tort

Litigating a mass tort for a plaintiff’s firm can be daunting. The amount of hours, money and manpower expended on one case can be a potential pitfall. It is not uncommon for mass-tort cases to be hotly litigated for three or four years, and some drag on for nearly a decade. Because these cases drag on for so long, they are also extremely risky, since science often changes during the pendency of a case. A case that looked extremely promising four years earlier becomes virtually worthless after the latest study showing the risk of the product isn’t nearly as great as once was thought. The number of plaintiffs’ firms that have filed for bankruptcy or shut their doors as a result of mass-tort litigation is staggering. In all mass-tort cases, the defendants are well funded and have a seemingly endless supply of resources. So how can a plaintiff’s firm thrive in the world of mass torts?

Multidistrict litigation is a mechanism that has created efficiencies in litigating mass-tort cases. In 1968, Congress enacted the Multidistrict Litigation statute 28 U.S.C. § 1407. The statute created a legal procedure to assist with the processing of complex litigation such as pharmaceutical or medical device lawsuits. Prior to its enactment, a defendant could be subject to hundreds of cases around the country involving common issues. The creation of MDL addressed that issue by consolidating cases to one transferee court that oversees all pretrial proceedings and discovery. At the completion of discovery, if a case is not resolved it is remanded to the transferor court for further proceedings, such as a trial.

A mass tort will cost a firm millions of dollars in expenses and overhead during the pendency of a case. While multiple plaintiffs’ firms will share in common benefit expenses such as corporate depositions and document production – the screening of a case, ordering medical records and having a qualified staff to handle day-to-day responsibilities is expensive. In a typical mass tort, a firm could easily screen 3,000 to 4,000 cases to end up with 200 to 300 filed cases. For example, in a recent mass tort involving a medical device, our firm screened more than 4,000 cases and ended up with only 150 legitimate cases. Obviously, such a screening process is expensive and time-consuming, but it ensures the cases you are filing are consistent with current scientific and medical literature.

The screening process is the most significant cost on the front-end, but the expenses don’t end there. For this reason, some firms gather cases, and then refer the cases out to larger firms to handle the litigation and the additional expense. Other firms are involved in the day-to-day litigation and will dedicate resources and manpower to common benefit work. In a mass tort, the court will appoint a steering committee which is a collection of plaintiffs’ counsel that is responsible for managing the progress of the litigation. Because there is significant cost with general causation experts, document production and depositions, members of a steering committee often make substantial capital contributions to a common benefit fund as a means of pooling resources.

Internally, a firm will also spend significant resources. For example, the defendant and plaintiff’s steering committee will often agree to a fact sheet that provides detailed information for each claimant. Fact sheets can often be 30 to 40 pages long and require detailed information that can take weeks to complete. With 300 to 400 cases, a knowledgeable and dedicated staff is mandatory for such a daunting project. In addition to the fact sheet, the staff and lawyers will field calls and questions from clients daily. Accordingly, the cost and overhead needed to manage a mass-tort inventory is not insignificant.

In the end, the risks of litigating a mass tort from a plaintiff’s perspective are real and substantial. The unknowns of a mass tort at the beginning are numerous as a mass tort could ultimately fail under Daubert, the science may evolve during the litigation making causation more difficult, or case-specific issues could make it difficult to prove. That’s why a firm needs to be intelligent and strategic when deciding when and where to dedicate their resources.•

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Jeff Gibson is a partner at Cohen & Malad LLP. His practice is focused on nationwide mass-tort litigation involving dangerous drugs and defective medical devices. Gibson has held leadership positions and served on steering committees fighting against manufacturers on behalf of his injured clients. He can be reached via email at jgibson@cohenandmalad.com. The opinions expressed are those of the author.

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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