Class Actions and Mass Torts: What’s the Difference?

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Most people are familiar with class action lawsuits but may not know about the similar legal action known as a mass tort.

Class actions are large cases involving many people who have been injured or damaged in some way. In a class action, each person’s claim is basically the same, and the claims proceed as a group against the individual or company that has injured them.

A mass tort is different in that thousands or tens of thousands of individual claims go through the legal system as a group but the claims are not the same. Common mass torts involve drug recalls, medical device recalls, or major catastrophes such as plane crashes. Most people involved in a mass tort are injured in some way but the nature and severity of the injuries can vary greatly. The claims are not the same, but each claim involves the same product and often the same circumstances.

The attorneys at Parker Waichman have extensive experience with both class action and mass torts and can answer questions and provide information about possible legal action.

Class Actions Unite Consumers Seeking Remedies

Class actions can help consumers recover overcharges or fees wrongly charged by banks, credit card companies, airlines, and cable companies. Consumers have used class actions to address packaging and labeling issues, for example, when a food package does not contain the weight or volume listed on the label, or a drug or supplement does not contain the active ingredient in the proper amount or concentration. Or a product may be labeled organic when it does not meet the standards for organic labeling. Class actions have been filed against automakers, appliance makers, e-cigarette makers, drug companies, food and beverage manufacturers, and cosmetic and beauty product makers, among others, over defective products, misleadingly labeled products, or products that do not perform as promoted.

Class actions are varied. Among recent examples are a lawsuit against Kimberly-Clark over surgical gowns that failed effectiveness tests and failed to meet industry standards for protection. During the Ebola outbreak, impermeable surgical gowns were crucial for the protection of health care professionals caring for Ebola patients. The defective Halyard gowns endangered doctors and other health workers. In another proposed class action, a New York man is taking legal action against Kia Motors America for failing to address a defect that causes sunroofs in some of its vehicles to shatter. The Kia owner alleges that the Kia sunroofs can spontaneously shatter, showering shards of glass on the vehicle’s occupants. In a third example, three federal class actions involving the flooring manufacturer Lumber Liquidators allege that the flooring emits potentially harmful amounts of formaldehyde gas. The lawsuits were filed after a report on the news magazine 60 Minutes exposed the results of formaldehyde testing performed on the company’s Chinese-made laminate flooring. The Environmental Protection Agency (EPA) has classified formaldehyde as a probable human carcinogen. The Centers for Disease Control and Prevention (CDC) said people who purchased the Chinese-made Lumber Liquidators’ flooring are approximately three times more likely to get cancer than had previously been calculated.

Multidistrict Litigation Streamlines Large Litigations

In the federal court system, mass tort cases can be grouped together using “multidistrict litigation” (MDL). The MDL allows cases that have been filed in federal courts across the country to be litigated in front of one federal judge. A multidistrict litigation is a more efficient process for all parties, especially during pretrial proceedings when depositions are taken, evidence is gathered, and procedural questions are raised. An MDL conserves legal resources. In the discovery phase—when the parties collect evidence from one another—there is only one judge ruling on procedural matters so the parties do not have to deal with possibly conflicting rulings in different federal courts.

Notable current multidistrict litigations involve knee and hip replacement devices made by manufacturers including DePuy Orthopaedics (a division of Johnson and Johnson), Smith and Nephew, Biomet, Stryker, and Wright Medical. Lawsuits in these MDLs allege that the devices failed, causing a variety of injuries to the joint recipients. Many of these individuals needed repeat surgery (called revision surgery) to remove and replace the defective joint. Other major MDLs involve transvaginal mesh devices, used to treat women’s pelvic organ prolapse and urinary incontinence. The plaintiffs say the mesh implants caused pain, infection, bleeding, and organ damage. In some cases, the woman needed additional surgery to remove mesh that had protruded into the vagina and/or repair organ damage.

Drug companies face MDLs over medications including the blood thinners Eliquis, Xarelto, and Pradaxa, diabetes drugs Actos, blood-pressure drug Benicar, and anti-nausea medication Zofran. These drugs are all alleged to have caused serious (and in some cases fatal) side effects. Actos is alleged to increase the risk of bladder cancer; Zofran is linked to birth defects in babies whose mothers take the drug for morning sickness. In many large drug litigations, the drug company is accused of promoting off-label use of the drug, that is, a use that has not been approved by the U.S. Food and Drug Administration (FDA). In many such cases, patients say they were not properly warned of serious side effects.

The MDL process often employs bellwether trials, in which a small number of representative cases go to trial first. Though the outcomes of bellwether trials are not binding on other cases in the MDL, a trend in the verdicts in the early cases can help the parties decide whether to continue taking cases to trial or work negotiate a settlement agreement. In a settlement, eligible plaintiffs receive compensation for injuries, medical expenses, and economic losses.

Legal Help for Injured Consumers

If you have suffered injuries caused by a drug or medical device, or a defective product, or have been overcharged or wrongly charged for a product or service, you may be entitled to compensation. The attorneys at Parker Waichman LLP have the experience and knowledge to help you pursue appropriate legal action. Contact the firm for a free, no obligation case evaluation. To reach Parker Waichman, fill out the contact form or call 1-800-YOURLAWYER (1-800-968-7529).