A lawsuit can be a relatively simple process involving one person suing another person, a person suing a corporation (and vice versa), or one corporation suing another corporation. In these simple lawsuits, the issues between the two parties are unique to those parties. A judge must look at their case specifically and make a judgment based on the applicable law.
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Of course, not every lawsuit is so simple. Some lawsuits pull third parties (or fourth or fifth parties) into the process and others stretch across multiple jurisdictions, requiring complex procedures for determining where the case actually belongs. While these types of cases are probably unfamiliar to non-lawyers, there are two types of cases that everyone should know about: mass torts and class actions.
What constitutes a class action lawsuit?
You’ve probably heard of class action lawsuits. In a class action, all of the plaintiffs (the people bringing the suit) suffered similar damage from the same source. For example, imagine a bank is charging overdraft fees against customers who have not overdrafted their accounts. Every bank customer has the same issue: they’ve been charged a fee that they don’t owe. All of the harm comes from the same place: the bank’s fee-charging procedures. Each client could sue separately, but that involves a lot of time and will cost more than any one client would win. Instead, the clients can combine their cases into a class action lawsuit.
Here are just a few examples of class action lawsuits against products, drugs, and medical devices:
- Johnson & Johnson Physiomesh recall
- Taxotere hair loss
- Asbestos and Mesothelioma cases
In a class action lawsuit such as these, the plaintiffs are grouped together as a class and represented by one or a few named plaintiffs. Instead of having every member of a class, which could be thousands of people, have her own trial, a class action allows the issue to be settled for the entire class in one suit. One attorney or group of attorneys can manage the whole case, making it far more affordable than hiring an attorney for each individual.
Can I sue as part of a class action?
Yes, but a group of people who suffered similar harm cannot simply decide to file a lawsuit as a class action. The Federal Rules of Civil Procedure give very specific guidelines as to who can constitute a class and what a class can sue for.
In order to be certified as a class, the group of people has to be large enough that joining each member in a smaller suit is impossible or impractical and all of the plaintiffs’ claims must rest on the same questions of law or fact. Fed. R. Civ. P. 23(a). In addition, the named plaintiff is recognized as the representative of the class. The named plaintiff must have the same claim as the rest of the class and must “fairly and adequately protect the interests of the class.” 23(a). In other words, the class representative must not have any conflicts of interest that would lead her to seek anything but the best possible resolution for the rest of the class.
However, even if the group of plaintiffs can be certified as a class, they still may not have the right to sue as a class. In order for a class to be able to file suit, there must be a risk that individual lawsuits would have inconsistent results. In the overdraft fee example, there is a risk that one of the bank’s customers might sue and win while another customer might sue and lose. Fed. R. Civ. P. 23(b)(1). That’s clearly an unfair result and the law wants to ensure that all individuals with the same claim get the same treatment. Alternately, a class may sue if the desired injunctive relief (such as a court order, as opposed to money damages) is appropriate for the whole class; no one can be left out and everyone’s interests must match. Fed. R. Civ. P. 23(b)(2). Finally, a class may sue if the issues of law or fact that tie the class together are the main issues in the case and overwhelm any issues that are unique to individual plaintiffs.
Mass Tort Cases: No Class Certification Required
It’s very difficult to achieve class action certification. In many cases, the defendants can show that the damages suffered by the individual clients are too different to handle within one case or that the desired relief does not appropriately apply to all class members. Class certification has become increasingly difficult in the light of arbitration agreements that require that individuals or classes submit to binding arbitration rather than taking their disputes to court.
Class actions are just one type of mass tort litigation. Mass tort suits are aggregations of a large group of plaintiffs making similar claims. While class actions require class certification, general mass torts do not. Some mass torts will end up as class actions where class certification is possible, but many will not.
All mass torts offer cost-savings for the plaintiffs similar to those of class actions. One attorney or law firm can handle many cases, sharing information and ideas from one investigation with all of the plaintiffs. Otherwise, each plaintiff would have to hire her own attorney. That might cost more than the plaintiff expects to win, deterring her from filing suit in the first place.
Types of Mass Tort Cases
Cases involving defective drugs and products are frequently handled as mass torts. While each plaintiff suffered harm from the same defective product or drug, the harm they suffered may be very different.
For example, a group of plaintiffs may claim they were all harmed by the same medication, like Xarelto, a popular blood thinner that may cause uncontrollable bleeding. Some of those plaintiffs suffered pain and discomfort. Others suffered so much pain that they couldn’t work. Others required hospitalization and racked up big medical bills.
They probably can’t be certified as a class — they all suffered different degrees of harm and had different sets of preexisting conditions. Each case will depend on the specific facts surrounding that plaintiff and that plaintiff’s use of the medication.
Should I file a mass tort lawsuit?
Mass torts allow for more variability in the damages awarded to the plaintiffs than class actions but result in more suits. While only one suit need be filed in a class action, a mass tort typically consists of a large group of suits. Each plaintiff will have her own suit.
The advantage of a mass tort over a singular suit is in the efficiency of counsel. The attorneys are cheaper for every mass tort litigant because the costs are shared over the group of plaintiffs. In addition, the attorneys can use the facts and results of winning cases to help other plaintiffs win, rather than having to start discovery from scratch with each plaintiff.
An expert tip from Doug Mann
Because they often stretch across many jurisdictions, mass tort lawsuits are often combined into a multi-district litigation, or MDL. To consolidate suits under MDL, the federal Judicial Panel on Multidistrict Litigation must approve the consolidation and determine where the case will be heard. A case consolidation under MDL allows a single court to handle the pretrial proceedings and the discovery phase. This ensures that every case in the mass tort has access to the same information about the defendant.
Mass Tort vs. Class Action: Get Help from an Experienced Attorney
In a class action lawsuit, the class will either win or lose. If the class wins, either the defendant will be served with an injunction to stop doing whatever caused the suit or the defendant will have to pay some amount of damages to the class. In a mass tort suit, each case can have a different outcome. The damages awarded will differ based on the injuries suffered and any mitigating concerns.
If you’ve been hurt by a product, drug, or corporation, contact one of our experienced personal injury attorneys. In a free consultation, we’ll determine if your injury is already covered by a class action lawsuit — you may already be entitled to damages. Your case may also be a candidate for mass tort litigation. We can tell you the status of any lawsuits over issues similar to yours and help you decide the best way to pursue your claim.