What’s the Difference Between a Mass Tort and a Class Action?

Big cases with many plaintiffs are complicated. Sometimes these cases are treated as a mass tort, sometimes as a class action. The difference is meaningful in terms of how plaintiffs are grouped and treated.

In both types of cases, there are a large number of plaintiffs usually suing one defendant. In both types of cases, the plaintiffs may have suffered a similar type of harm. But there the similarities end. How a plaintiff files a case matters. All of these cases are complex and should always be handled by experienced attorneys.

Mass Torts

In mass torts, each plaintiff files an individual lawsuit, all against the same defendant. All of the lawsuits filed by the plaintiffs generally concern the same type of alleged wrong committed by the defendant. The injury can be either financial or physical. For example, the plaintiffs might have all been hurt by a prescription medication, medical appliance, securities fraud, or defective product made by a particular defendant. Mass torts can be filed in state or federal court.

In mass torts, each plaintiff files their suit and each plaintiff must prove their own damages. Mass torts can have structured settlements and individual settlements. In both cases, plaintiffs are given the opportunity to prove their damages. Often, mass tort cases are grouped together in a multidistrict litigation case.

Multidistrict Litigation Cases

Multidistrict litigation (MDL)cases  are a subset of mass torts. These cases must have one or more issues of fact in common. By consolidating those cases together in a single court before a single judge, it helps to ensure that results will be somewhat consistent. The process is meant to achieve a kind of economy across the cases filed.

Here are some examples of questions of fact that can apply across a group of MDL cases:

• Was Defendant X’s design of product Y defective?
• Does product Y cause brain cancer?

These cases are filed in federal court. The plaintiffs each keep their separate cases, but the lawsuits are transferred to one district court and are joined for purposes of case management and discovery.

Discovery is the process of exchanging information before trial. This is done by taking depositions, formally exchanging documents, and answers to written questions called interrogatories. Managing discovery in this way prevents duplication and makes the process more streamlined.

Likewise, handling all of the pre-trial motions and case management prevents having numerous court dockets filed with substantially the same filings. Each plaintiff continues to work closely with their own attorney for purposes of settlement or trial.

MDLs often use what are known as bellwether cases. Bellwether cases are picked at random by the district court judge presiding over the MDL. These cases will go to trial which will then educate the parties and the judge regarding the strengths and weaknesses of the cases. These bellwether cases can act as a predictor of how the other cases in the MDL will do at trial. As such, they can help move cases toward settlement. Bellwether case outcomes are not binding on the other plaintiffs, however.

MDLs can have substantial benefits for mass tort plaintiffs. Mass tort cases are often expensive to litigate, and MDLs can reduce that amount substantially. This usually leaves more money available for a plaintiff as they approach settlement or trial.

Class Actions

In class actions, there is only one lawsuit filed. All plaintiffs are represented in the lawsuit by the class representative. The class representative sues the defendant or defendants. All individuals who may be part of the class must be notified of the potential class action. Plaintiffs can opt-out of the class action if they desire. Class actions tend to have many more plaintiffs than do mass torts.

Class actions are complex and have many requirements.

Among these requirements are:

• The class must be large enough that joining all the members is impracticable
• There are common questions of law or fact
• The defenses raised by the defendant must be typical across the class; and
• The class representative’s job is to protect the interests of the class.

A class action must be certified as a class, and all plaintiffs are bound by the outcome of the class action.

This has some advantages and some disadvantages for plaintiffs. Like mass torts, class actions can make litigation less expensive for both plaintiffs and defendants. Class actions also make it possible for plaintiffs in smaller cases to gain some recovery. A defendant who has caused a small amount of damage to a large number of people is still beholden to the law.

But often each plaintiff’s recovery is so small as to be insignificant for the individual plaintiffs involved in a class action. Thus, a class action may be more valuable in terms of changing a defendant’s behavior in the marketplace than it is in terms of compensating victims.

Takeaways

Both mass torts and class actions have their place in the world of plaintiff litigation. But they are very different in terms of their goals, procedures, strategies, and recoveries. The addition of multidistrict litigation to mass torts can make litigation less costly for plaintiffs in general. But these cases are complex and deciding how to proceed with a case has a significant impact on the case’s outcome.