Mass tort litigation can involve thousands—or sometimes hundreds of thousands—of injured people pursuing claims involving the same dangerous product, defective medical device, or harmful drug.
The size of the litigation changes how the cases are organized. It should not change something much more basic:
Your lawyer still needs to know your case.
A recent sanctions proceeding arising from the massive 3M Combat Arms earplug litigation provides a striking reminder of that principle. According to a report in Insurance Journal, a court-appointed special master concluded that a law firm had failed to adequately vet a large group of claims submitted through the settlement program. The special master specifically found that the lawyers had not intentionally committed fraud, but concluded that serious failures in the vetting process allowed fraudulent claims to be submitted.
There are plenty of lessons lawyers can debate from that particular situation.
For injured people considering a mass tort claim, however, I think there is a simpler lesson:
Mass torts may involve mass litigation. They should not involve mass processing of clients.
What Is a Mass Tort Case?
A mass tort occurs when many people suffer similar injuries from the same product or conduct.
Some of the best-known mass torts have involved prescription medications, medical devices, toxic exposures, defective products, and military equipment. Because the cases involve common factual and legal issues, federal lawsuits may be coordinated through multidistrict litigation, commonly called an MDL.
That coordination can make enormous litigation more manageable.
Lawyers can conduct common discovery. Courts can address issues affecting thousands of cases at one time. Experts can study common scientific and medical questions. Settlement programs can sometimes be created to resolve large numbers of legitimate claims efficiently.
But there is an important distinction that sometimes gets lost:
An MDL may contain thousands of cases. Each injured person still has his or her own claim.
The individual facts matter.
Every Mass Tort Client Has a Different Story
Suppose 20,000 people allege that the same medical product caused injuries.
That does not mean there are 20,000 identical cases.
One person may have used the product for five years. Another may have used it twice.
One person may have extensive medical documentation. Another may have very little.
One person’s diagnosis may fit precisely with the injuries being studied in the litigation. Another person’s medical problems may have a completely different explanation.
Dates matter. Diagnoses matter. Exposure matters. Medical history matters. The actual records matter.
That is why mass tort lawyers still need to ask some very basic questions.
Did this client actually use the product?
Can we document that use?
Does the client have the injury associated with the litigation?
When did that injury develop?
What do the medical records show?
Are there other medical conditions that could explain the problem?
Does the client actually meet the criteria for the litigation?
Those questions may sound simple. They are not merely intake questions.
They are legal and evidentiary questions.
There Is a Difference Between Signing a Claim and Building a Case
Modern technology makes it easier than ever to sign large numbers of clients.
Advertising can generate leads nationwide. Electronic signatures allow representation agreements to be completed almost instantly. Medical records can be ordered electronically. Software can sort thousands of potential claims.
Those tools can be useful. We use technology in our practice too.
But technology cannot replace lawyer judgment. Nor can it ever replace personal service.
There is a big difference between having someone’s name in a database and understanding that person’s case.
When we evaluate a mass tort claim, we want to understand the individual client behind it. We want to know the relevant medical history. We want the records that establish product use or exposure when those records exist. We want to understand the diagnosis and whether the medical timeline makes sense.
Sometimes that investigation strengthens a claim.
Sometimes it reveals a problem.
Both results are important.
A Strong Claim Is Not Necessarily the Biggest Claim
Personal injury lawyers naturally advocate for their clients.
Our job is to pursue every element of damages the evidence supports.
But that does not mean claiming everything imaginable.
In my view, one of the most important parts of building a personal injury case is separating what we can prove from what we cannot.
If a medical condition clearly existed before the exposure involved in a lawsuit, we need to know that.
If a client remembers events differently from what contemporaneous records show, we need to identify the discrepancy.
If a particular injury cannot be medically connected to the product at issue, adding that injury to the case does not necessarily make the case stronger.
Sometimes it makes the entire claim less credible.
The strongest personal injury claim is not the claim with the most allegations. It is the claim supported by the best evidence.
That principle applies whether we are preparing one serious automobile collision case in North Alabama or participating in nationwide mass tort litigation involving thousands of people.
We Want to Find the Problems Before the Defense Does
Careful case preparation is not just about finding favorable evidence.
It is also about looking for weaknesses.
Defense lawyers and insurance companies certainly will.
They will review prior medical records. They will compare dates. They will examine prescription histories. They may investigate product usage. They will search for alternative causes of an injury. They will look for inconsistencies between questionnaires, medical records, deposition testimony, and other evidence.
A plaintiff’s lawyer should not encounter those issues for the first time when the defense raises them.
We would rather find them ourselves.
Sometimes there is a perfectly reasonable explanation.
Sometimes additional records solve the problem.
Sometimes we need to talk with a doctor.
And sometimes we have to tell a client that the evidence does not support part of what he or she initially believed.
That conversation is part of being a lawyer.
Mass Tort Clients Should Still Be Clients
One of the risks of very large litigation is vocabulary.
People start talking about “inventories,” “claim counts,” “registrants,” and “cases.”
Those terms may be useful when lawyers and courts are administering thousands of claims.
But lawyers should never forget what those numbers represent.
They represent people. Real people with real stories.
A person who developed cancer.
A person who underwent another surgery.
A person experiencing hearing loss.
A person dealing with chronic pain or disability.
A family trying to understand whether a drug or product contributed to what happened to someone they love.
Those people deserve more than simply being entered into a claims system.
They deserve an honest evaluation of whether they have a claim. They deserve a lawyers who works with them to gain an understanding of their unique story.
The Same Philosophy Applies to Every Case We Handle
At Blackwell Law Firm, we handle both individual personal injury cases and selected mass tort claims.
The litigation may look very different, but our philosophy does not.
We believe the lawyer should understand the client and the evidence. Fully.
In a car accident case, that might mean studying the crash evidence, medical treatment, prior medical history, lost wages, physical limitations, and testimony from witnesses.
In a workers’ compensation case, it might mean understanding exactly how an injury affects someone’s ability to perform his or her job.
In a mass tort case, it may mean establishing product use or exposure, reviewing medical records, confirming a qualifying diagnosis, and evaluating whether the scientific and medical evidence supports causation.
Different cases require different investigation. In all cases, our philosophy requires knowing your client, trying to understand your client’s unique story, and building a meaningful relationship with your client.
No client, no case, no claim should ever simply be processed.
Before We Ask Someone Else to Believe a Claim, We Should Understand It Ourselves
Eventually, every personal injury case asks someone else to make a decision.
It may be an insurance adjuster.
It may be a corporate defendant.
It may be a judge overseeing a mass tort settlement program.
Or it may be twelve jurors sitting in a courtroom.
Before we ask any of those people to believe our client’s case, we should know why they should.
That requires more than a signed contract and a stack of medical records.
It requires investigation.
It requires judgment.
And it requires knowing the individual client whose name appears on the case.
Mass tort litigation may be massive.
Representing a client is still personal.
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