High-risk, high-reward world of mass torts is a billion-dollar business
It’s a practice area that can yield blockbuster verdicts against deep-pocket corporations—the kinds of cases frequently featured in the news. Mass torts is a field that’s often misunderstood and mischaracterized, praised by some for prompting consumer safeguards and forcing corporate change but also viewed as overwhelmingly white and male with high barriers to entry. And the field has plenty of detractors.
“There has been a generational public relations effort by corporate lobbying groups like the [U.S.] Chamber of Commerce to stigmatize suits against corporations,” says Noah Smith-Drelich, an assistant professor at Chicago-Kent College of Law. “Mass tort litigation has been one of the primary targets of this effort, given the large amounts of money at stake.”
Mass torts involves filing lawsuits on behalf of multiple plaintiffs with similar injuries that have the potential for verdicts worth billions of dollars. Most claims are centralized before a single judge, which means an adverse ruling or verdict has the potential to affect the outcomes of a much larger number of cases, as opposed to a one-time personal injury filing, says Kim Martin, a co-leader of the mass tort litigation team at Bradley Arant Boult Cummings. Martin points to a recent Daubert ruling (the Daubert standard assesses whether expert testimony is credible and relevant) in the Zantac multidistrict litigation, where the court found plaintiffs hadn’t offered credible scientific evidence that the antacid product caused cancer. That determination wiped out about 50,000 product liability cases against several pharmaceutical manufacturers, Martin says.
Large corporations with big legal defense budgets—such as oil companies, chemical plants and drug companies—tend to be frequent targets of this litigation. But the burden of proof is on the plaintiff, and establishing causation can be an uphill battle.
Not for the faint of heart
Identifying viable clients for mass tort claims can require a significant amount of time and resources. Jeffrey A. Holmstrand, a member of Grove, Holmstrand & Delk in Wheeling, West Virginia, says that between television and social media advertising, firms can spend tens of millions of dollars with no guarantee of any recovery.
Unlike class action litigation, in which there may be only one plaintiff or just a handful of plaintiffs seeking to represent thousands or even millions of other similarly situated claimants, mass tort litigation requires that every claimant be directly represented, Holmstrand says. While class action litigation can require a huge amount of work by class counsel to get the case to the certification stage, they don’t have the same overhead and case acquisition costs that mass tort litigation counsel face. Or the extended timeline.
“An individual litigation should resolve within 18 to 24 months,” says Amy Carter, managing shareholder of Carter Law Group in Dallas. “But I’ve worked on some mass tort cases for an entire decade of my career. There are so many pieces and procedural issues, you’re representing hundreds of people, you’re fronting the costs, and you don’t know how it’s going to resolve.”
In mass tort firms, there are usually separate attorneys who focus on finding trustworthy plaintiffs, identifying witnesses, handling discovery and depositions, handling jury consultations or arguing at trial. Another set of attorneys works on settlements, Carter says.
The research involved in a mass tort is extreme, requiring complicated legal work plus the acquisition of scientific knowledge. And document production can involve millions of pages.
“Many of those cases never go anywhere,” Carter says. “You think of it as this big industry that’s always taking on corporate America, but really, many of these cases don’t make the legal standards—which are really difficult for plaintiffs—and that often gets lost in the coverage of big victories.”
But plaintiffs firms that are effective mass tort litigators can see significant recoveries on behalf of injured clients. According to the Duane Morris Class Action Review - 2023 e-book, product liability class actions and mass torts had more than $50 billion in settlements in 2022, which is a 280% increase over 2021, according to Gerald Maatman Jr., chair of the class action defense group at Duane Morris.
Still, mass tort cases are handled primarily by a homogenous group of lawyers, partly because of a “systemic ‘good old boy’ issue,” Carter says.
To try to open opportunities in the field, in February 2022, six litigators launched Shades of Mass, an advocacy group to combat the lack of litigation leadership by people of color in mass torts, including Diandra “Fu” Debrosse Zimmermann, the managing partner of DiCello Levitt’s Birmingham, Alabama, office.
“We are going to be very intentional about overcoming each of the barriers that have stood in the way of lawyers of color being appointed to lead these cases, including the implicit bias that Black and brown lawyers don’t have what it takes to successfully lead,” Zimmermann says.
Pros and cons
The mass torts bar has battled negative publicity over the years, including when overzealous attorneys have contacted victims immediately after a tragedy to secure the business. As a result, the federal government stepped in to pass the Aviation Disaster Family Act of 1996, which prohibits lawyers from communicating with families of victims of plane crashes until at least 45 days after the accident. But some argue that advertising can serve a critical function.
“The reality is that many times, people who are impacted by a mass tort have no way of knowing what caused their injury,” says Bryce Hensley, a senior attorney at Romanucci & Blandin in Chicago. “Advertising and information on websites can provide individuals the notice that they need to understand why they suffered the injuries that they did.”
But claimants also have been dissatisfied with meager payouts. In 2019, seven medical device manufacturers paid nearly $8 billion after eight years of litigation to more than 100,000 women who suffered complications from pelvic mesh. The average settlement, however, was less than $60,000, according to the New York Times, thanks to agreements allowing attorneys to take up to 45% of each settlement plus costs for meals, hotels and private plane travel. Many of the disgruntled payout recipients sued their lawyers after realizing how little they’d receive from the settlement.
But many mass tort lawyers see themselves as consumer watchdogs.
“Plaintiffs law firms are able to deploy larger numbers of attorneys, pool financial resources and collaborate strategically to achieve the best result for their clients while also drawing public and legislative attention to issues that require broader attention,” Hensley notes, adding that high-profile cases have provoked social protests, legislation and government investigation.
Culturally, the United States is litigious, but that’s not necessarily a bad thing, Smith-Drelich says.
“There’s something very ‘small d’ democratic about litigation: You don’t need to rely on government agencies, which can be captured by big-money interests, to vindicate your rights through litigation.”
Hensley agrees: “It just so happens that mass tort litigation can do so on behalf of more people and with greater force.”
This story was originally published in the August-September 2023 issue of the ABA Journal under the headline: “Billion-Dollar Business: The high-risk, high-reward world of mass torts.”