Deminor Wiki - Mass Tort

Read below for a definition of the term: "Mass Tort".

What do we mean when we say "Mass Tort"?

Mass torts are primarily a US law concept and refer to civil actions involving numerous plaintiffs against one or a few corporate defendants in state or federal court typically arising from widespread harm caused by defective products, pharmaceuticals, or large-scale accidents. Unlike class actions, where plaintiffs are represented collectively by one or a few individuals, each plaintiff in a mass tort maintains their individual lawsuit. In civil law jurisdictions, which traditionally mostly do not know the concept of representative class actions, the distinction between mass torts and class actions is more a terminological than a substantive one. 

Key Characteristics of Mass Torts

Numerous Plaintiffs

Mass torts involve a large number of plaintiffs who have suffered similar harm or injuries due to the actions or products of the defendant(s).

Common Issues

While each plaintiff has a unique claim, the cases share common factual or legal issues, such as the cause of the harm, the nature of the defendant’s conduct, and the type of injuries sustained.

Individual Claims

Unlike class actions, where one or a few representatives sue on behalf of a defined class, mass torts preserve the individual character of each claim. Plaintiffs may seek different types or amounts of damages depending on the severity of their injuries.

Consolidation for Efficiency

Mass torts are often consolidated for pretrial proceedings to streamline the process, reduce costs, and ensure consistent rulings. This can occur through mechanisms like Multidistrict Litigation (MDL) in the United States, but similar procedural tools exist in other jurisdictions under various forms (e.g., group litigation orders in the UK or, to some degree, “Musterverfahren” in Germany).

Are Mass Torts Different From Class Actions?

Mass Tort: Many individuals bring separate lawsuits over a common harm (e.g., defective products, environmental disasters). Claimants retain control over their own cases, even if proceedings are coordinated.

Class/Collective Action: One representative sues on behalf of the group. Members are bound by the result and have limited individual involvement. In class or collective actions, participation can follow either an opt-out or opt-in model. Under an opt-out system, all eligible individuals are automatically included in the action unless they formally withdraw.
By contrast, in an opt-in system, individuals must actively join the case to be part of the group and benefit from any judgment or settlement. Collective actions in civil law jurisdictions are predominantly designed as opt-in mechanisms, whereas in common law countries, opt-out actions are widespread.

Legal Framework and Procedures

United States

In the U.S., mass torts can be handled in state or federal courts, depending on the nature of the case and the parties involved.

Multidistrict Litigation (MDL)

  • MDL is a procedure used in federal courts to consolidate and transfer similar cases from different districts to one court for pretrial proceedings. This is overseen by the Judicial Panel on Multidistrict Litigation (JPML).
  • MDL aims to improve efficiency, reduce duplicative discovery, and prevent inconsistent pretrial rulings. Once pretrial proceedings are complete, cases may be remanded to their original courts for trial.

State Court Consolidation

  • Similar cases within a state may be consolidated in a single court for pretrial proceedings. This varies by state and may involve complex litigation procedures.

European Union

The European Union (EU) does not have a unified system for mass tort litigation, and procedures vary by member state. Some jurisdictions allow group claims or representative actions, while others rely mainly on individual litigation, even in cases of widespread harm. The overall trend, though, also driven by the EU by means of its representative action directive, is towards admitting more collective redress mechanisms, as the lawmaker understands and acknowledges that often, even in case of rather clearly founded claims, individual aggrieved parties would be deterred from pursuing their claims individually, which in turn would leave the unjust harm unremedied.

Collective Redress Mechanisms

  • Some EU member states collective or representative actions, mainly for consumers or investors, for example, the Netherlands (WAMCA), Germany (KapMuG and Abhilfeklage), and France. These mechanisms are not uniform and vary in scope. The EU Directive on Representative Actions (Directive 2020/1828) seeks to harmonise collective redress across member states by allowing qualified entities to bring cross-border consumer claims where EU law has been infringed.

International Considerations

International mass torts involve plaintiffs from multiple countries and can be complex due to differing legal systems, jurisdictional issues, and varying substantive laws. Cooperation among courts and legal practitioners is crucial in managing these cases.

Types of Mass Torts

Defective Products

  • Cases involving harm caused by defective products, such as automobiles, consumer electronics, and industrial equipment.

  • Example: Takata airbag recall, involving millions of vehicles with potentially lethal airbag defects.

Pharmaceuticals and Medical Devices

  • Cases involving injuries or adverse effects from pharmaceuticals or medical devices.

  • Example: The litigation against Bayer over the contraceptive device Essure, which caused serious health issues for many women.

Environmental Disasters

  • Cases involving harm caused by environmental contamination, pollution, or industrial accidents.

  • Example: The Deepwater Horizon oil spill (2010), resulting in widespread environmental damage and economic loss in the Gulf of Mexico. BP faced thousands of claims from fishermen, businesses, and individuals.

Large-Scale Accidents

  • Accidents involving aircraft, trains, or infrastructure collapse may give rise to mass tort litigation, especially when they result in multiple injuries or fatalities and systemic design or regulatory failures.

  • Example: The Boeing 737 MAX litigation involves several crashes of Boeing 737 MAX aircraft, which resulted in numerous fatalities. This litigation has led to extensive legal proceedings concerning aircraft safety, design flaws, and the responsibilities of the manufacturer and regulators.

Benefits of Mass Torts

Efficiency

  • Consolidating similar cases streamlines the legal process, reduces costs, and ensures consistent rulings on common issues.

Access to Justice

  • Mass torts provide a mechanism for individuals with smaller or less significant claims to seek justice collectively, making it feasible to litigate against large corporations that might otherwise be difficult to challenge individually.

Leverage

  • The collective strength of numerous plaintiffs can provide greater leverage in negotiations and settlements with defendants.

Comprehensive Discovery

  • Consolidated proceedings allow for more efficient and comprehensive discovery processes, where applicable, enabling plaintiffs to build stronger cases.

Challenges of Mass Torts

Complexity

  • Managing numerous individual lawsuits with common and unique issues can be complex and resource-intensive for all relevant parties – plaintiffs, court, and defendants alike

Jurisdictional Issues

  • Mass torts can involve plaintiffs from multiple jurisdictions, leading to conflicts of law and varying procedural requirements.

Individual Differences

  • While cases share common issues, each plaintiff has unique circumstances, injuries, and damages, complicating the resolution and settlement processes, especially when determining fair compensation for all plaintiffs.

Settlement Distribution

  • Ensuring fair and equitable distribution of settlement funds among numerous plaintiffs can be challenging and contentious.

Key Cases

United States

  • Opioid Litigation: Involves numerous lawsuits against pharmaceutical companies such as Purdue Pharma, Johnson & Johnson, and McKesson for their role in the opioid crisis. Cases have been consolidated in MDL, leading to significant settlements and ongoing litigation.

  • Roundup Litigation: Involves thousands of lawsuits against Monsanto (now owned by Bayer) over claims that the herbicide Roundup causes cancer. The cases have been consolidated in MDL, resulting in substantial settlements.

European Union

  • Dieselgate: The Volkswagen emissions scandal, commonly known as Dieselgate, led to numerous mass tort actions across Europe, with consumers seeking compensation for the company's use of defeat devices to cheat emissions tests.

  • PIP Breast Implants: The scandal involving substandard silicone breast implants by French company Poly Implant Prothèse (PIP) led to widespread litigation and compensation claims across Europe.

  • Deutsche Telekom: In one of the largest investor-related mass harm cases in Germany, approximately 15,000 shareholders brought over 2,000 individual lawsuits against Deutsche Telekom, alleging misrepresentations in the company’s public offering documents. The case exemplifies how mass harm can also arise in the financial sector, prompting extensive litigation by dispersed investors.

Conclusion 

Mass torts are a crucial mechanism for addressing widespread harm and holding corporations accountable for their actions. By consolidating numerous individual claims, mass torts improve efficiency, provide access to justice, and offer leverage in negotiations and settlements. However, they also present challenges, including complexity, jurisdictional issues, and fair distribution of settlements. Understanding the legal framework, benefits, and challenges of mass torts is essential for effectively navigating this important area of civil litigation and ensuring that plaintiffs receive fair and timely compensation for their injuries. The financial and procedural hurdles inherent in mass tort litigation can, however, deter individual claimants from asserting their rights. This is where Third-Party Litigation Funding proves crucial: by covering the often-prohibitive costs of complex proceedings in exchange for a share of the eventual proceeds, such funders reduce the financial risk for plaintiffs to zero and thereby enhance access to justice, even against powerful corporate defendants.

Reviewed by:  Dr. Malte Stübinger, General Counsel Germany 

Disclaimer: The sole purpose of this article is for general information, and its contents should not be considered as legal advice, as legal frameworks / systems vary from country to country. The article is based on publicly available information and while care is taken in compiling this, no warranty, express or implied is given, nor does Deminor assume any liability for the use thereof.