ILNews

Gibson: Managing drug and medical device mass-tort litigation

November 20, 2013
Back to TopCommentsE-mailPrintBookmark and Share
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.•

__________

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

ADVERTISEMENT