Making Mass Torts Cases a Valuable Addition to Your Solo or Small Firm
| Publication year | 2017 |
| Author | By Emmie Paulos & Christopher G. Paulos |
By Emmie Paulos & Christopher G. Paulos
Emmie and Chris Paulos are California-licensed associate attorneys at the nationally-recognized law firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., headquartered in Pensacola, Florida. Both handle pharmaceutical, medical device, environmental mass torts, and other plaintiffs' trial work. They met in law school and married shortly upon graduating from Thomas Jefferson School of Law in San Diego, California. You can reach them at epaulos@levinlaw.com and cpaulos@levinlaw.com.
From drugs that kill rather than heal to medical devices that malfunction and maim, the sad reality of modern medical products design, development, and distribution is that when things go wrong, they go really wrong.
Because of this, multiple-plaintiff actions involving products with widespread distribution and severe injuries have become commonplace in the courts.1Due to the number of individual litigants, these cases have become known as "mass torts."2 In recent years, mass tort lawyers have recovered significant judgments and settlements for their clients, ranging from millions to billions of dollars.3
With the growth of mass torts cases, you too may soon find your phone ringing, with a potential mass tort client on the other end of the line.
When that happens, rather than turning the client away, solo practitioners and small firms may wonder how they can get involved, expand their practice, and provide yet another quality legal service. Though it can seem daunting (the cases are highly complex), and the litigation can be expensive (the defendants are multinational corporations), expanding your practice to include mass torts is not a quixotic pipe dream.
By combining a basic understanding of the fundamentals of mass action procedure and a firm grasp of case criteria with the right referral network, solo practitioners and small firms can make slight changes to their marketing and branding methods and begin offering mass tort legal services to clients. If done correctly, building a mass tort component to your practice can be a rather seamless extension.
No multi-plaintiff product liability action is the same, and how a case "begins" is a unique factual intricacy specific to each case. Whether it is a local farmer whose cattle begin to die off for no apparent reason, a doctor whose patients appear to experience a rash of product failures, or a whistleblower who rings the alarm bells from deep within the U.S. Food & Drug Administration ("FDA"), there is usually a tipping point where the facts tying the conduct of the defendants to the injuries of potential plaintiffs becomes widely known. Often times, mass tort cases will begin in the backyard of the defendant, or the home state of the initial plaintiff(s), and expand as awareness of the wrongful conduct grows.
Many cases involve parties with differing domiciles combined with a degree of alleged harm that gives rise to federal diversity jurisdiction. Commonly, as cases become more numerous, the parties, or the Judicial Panel on Multidistrict Litigation ("JPML"), will seek to consolidate the federal actions in a Multidistrict Litigation ("MDL").4 The JPML will consider several factors when assigning the case to a specific federal venue for handling of a mass tort action case. These include, but are not limited to:
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- Whether the cases seeking consolidation involve common questions fact and the complexity thereof;
- Whether centralization of the cases will promote the just and efficient conduct of the litigation;
- The number of cases filed and the potential number of cases;
- Convenience of the requested forum;
- Whether centralization is opposed; and
- The willingness and ability of the potential jurist(s) to handle the litigation.5
It is important to note that several states, including California, also have centralization procedures that are highly effective in managing state court dockets that can quickly be flooded when mass tort cases arise.6 Therefore, there are potential state court consolidation options when the facts or law of your case do not permit federal jurisdiction.
Once consolidated, the filing of additional cases should occur in what would normally be the proper venue for a specific case. Then a notice of a "related case" on the Civil Cover Sheet should be provided (check your local rules). Additionally, a "tag along" notice must be filed with the JPML, who will then issue a Conditional Transfer Order ("CTO"). If there is no opposition to the CTO within seven (7) days, the JPML will transfer the case to the appointed MDL court.7
Despite the thorough investigation and meticulous...
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