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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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