Many of my current and potential clients believe that they have been injured
by a pharmaceutical drug or a medical device. Often these clients read
about pending lawsuits in the news or see a commercial on television that
makes them aware of the potentially harmful side-effects of a defective
drug or medical device. Frequently lawsuits that are directed at the pharmaceutical
industry have large numbers of people –the plaintiffs - seeking
retribution from the makers of the drugs/devices – the defendants.
When this happens, the courts may try to handle the large number of similar
lawsuits by consolidating them into one court, at least for preliminary
proceedings. When there are large numbers of similar lawsuits, they are
often referred to as
Mass Torts. There are two primary ways the court system often brings cases together
with the goal of judicial economy: Class-Action Lawsuits and Multidistrict
Litigations (MDLs). It is important to note that Class Action and MDL
lawsuits are used for many different types of civil lawsuits, not just
defective drugs and medical devices.
What is a Class-Action Lawsuit?
A Class-Action Lawsuit occurs when a large group of plaintiffs have the
same claim of damage or injury against one or more common defendants.
Generally, one plaintiff or a small group of plaintiffs obtain a lead
attorney to file a complaint in state or federal court against the defendant(s).
The court will decide to go forward with a class action if:
- The cases have common facts or legal questions
- The lead plaintiff has claims that are the same as or substantially similar
to the claims of the other plaintiffs
- The lead plaintiff will fairly and adequately protect the interests of the class
Class actions are often granted by the court in the interest of saving
time and money for the court (“judicial economy”), the plaintiffs
and the defendant(s). If the court approves (or “certifies”)
the class, all members of the class are notified and given the option
of excluding themselves. If they remain in the class (meaning they do
not “opt out” of the class to pursue their claim individually),
they are bound by court rulings, settlement agreements and any other results
(e.g. jury verdict) in the case and cannot file an individual lawsuit.
What is a Multi-District Litigation?
A Multi-District Litigation (MDL) is also for a large group of plaintiffs
against a common defendant or defendants. MDLs are more appropriate where
there are common defendants, but the Plaintiff’s damages are not
exactly the same as damages to other plaintiffs. Typically,MDL’s are consolidated for pre-trial purposes only. The cases are consolidated for efficiency by allowing one judge to preside
over all pretrial activities, discovery and often settlement conferences.
MDLs are used in an attempt to save resources of the court, the defense
and the plaintiff, to avoid duplicity of discovery, and to offer consistent
rulings across similar lawsuits involving similar injuries and legal issues.
A seven member panel called the U.S. Judicial Panel on Multidistrict Litigation
(JPML), determines if a group of lawsuits should be consolidated into
an MDL. If the lawsuits become an MDL, all are transferred to a single
U.S. Federal District Court, and the judge in that court appoints lead
counsel. After pretrial motions and after the plaintiff’s lawyers
and the defense lawyers exchange evidence, the judge may dismiss some
of the claims (or the entire case), or the judge may recommend the two
sides enter into settlement discussions. If a settlement is not reached
the cases are sent back to the original court in which the cases were
filed for individual trials. Sometimes the Court and/or the parties select
a few cases for trial (“Bellwether” cases) so that all can
determine how juries will see the evidence. Bellwethers often educate
the parties and the court as to which side has the stronger position/likelihood
EXAMPLES OF CURRENT MASS TORTS:
- Xarelto (a blood thinner)
- Zofran (an anti-nausea drug)
- IVC filters (surgical device for blood clots)
- Risperdal (anti-psychotic medication)
- Invokana and Actos (diabetes drugs)
- Taxotere (chemotherapy drug)
- Nexium (proton pump inhibitor – antacid)
- Transvaginal Mesh (pelvic repair surgery device)
- Abdominal/Hernia/Surgical Mesh (hernia repair surgery device)
- Stryker Hip Implants
- Zimmer Knee Replacements
- Bair Hugger Blankets (surgical device used for warming the body after joint
- Talc (baby powder)
I have evaluated and continue to evaluate both class action and MDL mass
torts for clients. I regularly attend training and conferences on mass
tort litigation and spend time keeping up with current and potential mass
torts and their standings in the court system. The class action and MDL
process can be challenging for both the clients and the attorneys involved
so it is important to stay educated and abreast of the mass tort world.
When dealing with mass torts, individual plaintiffs are very often in
a “David vs Goliath” situation. The defendants are generally
large pharmaceutical or medical device companies with seemingly unlimited
financial and legal resources. Grouping cases together in an MDL or a
Mass Tort can often give the individual plaintiffs strength-in-numbers
and, perhaps, some leverage and streamlining of the processes in litigating
and, potentially, resolving a claim.