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.•


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 The opinions expressed are those of the author.


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  1. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  2. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  3. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  4. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  5. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well