Millions of people rely on prescription medications and medical devices to improve their health and lives. Unfortunately, a dangerous drug can live you with another chronic illness that will live you in significant pain and in constant need of medical treatment. Defective medical devices, on the other hand, can release toxic fragments and may sometimes require emergency surgery to fix or replace the product. A defective pharmaceutical product or medical device can leave hundreds orthousands of people with serious injuries or illnesses. When such situations occur, those who’ve been harmed may take legal action as a group against the manufacturer of the faulty product. These cases are known as mass tort claims and usually cover people with a variety of conditions stemming from the use of a certain defective product.
Individuals who join large-scale mass tort cases are interested in fair compensation for lost income, medical bills, and other expenses associated with their losses. Mass tort cases are extremely complicated because they are considered individually, and compensation varies based on the type and severity of the injury.
Understanding a Mass Tort Claim
A tort is a civil wrong committed by an individual or company that causes harm to another, whether physical injury, financial loss, property, damage, or emotional distress. In a tort claim, the plaintiffis the individual who suffers harm due to the negligence of the defendant. The defendant is also called a “tortfeasor” and is legally liable for the harm caused by their action or inaction if found guilty. A mass tort is a single lawsuit filed by many victims who have suffered harm caused by a certain product or service. Mass tort claims are usually based on negligence, and the most common types include pharmaceutical claims, consumer product claims, and environmental torts.
Even with strict testing and approval requirements, dangerous drugsget to the market and result in unfortunate health consequences. A drug can have dangerous side effects that cause significant injuries or deaths. If it’s established that the manufacturer was aware of the side effects but still released the drug for public use, without warning of the side effects, such drugs and devices may be recalled, and the pharmaceutical company will be held liable for the resultant injuries or death. Defective medical devices can also be recalled due to a manufacturing error. Famous recalls include transvaginal mesh and faulty DePuy hip implants.
A mass tort action is filed when a large group of victims wants to sue a common tortfeasor in a manner that their cases are handled in a single lawsuit. Torts can range from negligence, professional malpractice, bodily injury to defamation, though they are civil in nature. The plaintiffs typically sue the defendant for monetary compensation to remedy damages they’ve sustained.
Let’s imagine a personal injury scenario that a mass tort lawsuit might work for. After years of people suffering from depression without any medications working for them, a new antidepressant is launched and advertised as a "medical breakthrough." Thousands of people use it, and their condition significantly improves. However, about 30 percent of this group suffered devastating health consequences, including stroke, paralysis, heart attack, diabetes, and even death. It was later revealed that the drug comes with severe side-effects, and it was recalled by the Food and Drug Administration (FDA). The victim suffered from a variety of conditions, but they all originated from the anti-depressant. Rather than have each individual file a separate lawsuit, all the plaintiffs can file one lawsuit, which allows for the orderly administration of the cases and also saves time and money.
Some of the factors that the court will consider when determining whether to give permission include:
- The number of the plaintiffs involved
- The location off the plaintiffs, whether near or far from each other
- The type and similarity of injuries suffered by plaintiffs
- Whether the claims are associated with a common cause
If the court determines that the proposed case meets the criteria for a mass tort action, the case will be assigned to a judge. Notice of the lawsuit may be published across media outlets to allow others who’ve been harmed by the same product to join the lawsuit.
How a Mass Tort Compares to a Class Action
A mass tort is different from a class action lawsuit. Both actions are designed to allow a group of victims to file a single lawsuit against one person or entity for a single common product or a single action.Both class action and mass tort litigations provide a similar form of judicial relief. However, mass tort action actions cover a much broader range of claim types. Most mass tort claims are brought when individuals are harmed on a large scale by defective products or defective drugs. Such cases rarely fit into a single class because defective devices and drugs tend to cause a wide range of issues for different people. Each plaintiff, therefore, receives his or her own trial and/or compensation.
In a class action, plaintiffs share a set of damages and injuries caused by one product, and there is only one trial. This means that all members of the class are treated as one plaintiff. Recovery for individual victims is usually higher in mass tort cases. What’s more, the preparation and evidence that goes into one case can be transferred to another. Mass torts allow for the orderly administration of different cases, saving time and money. Mass torts are generally filed in federal or state courts and consolidated into an MDL (Multi-District Litigation) as stipulated under 28 USC § 1407.
Components of a Viable Mass Tort Case
A mass tort claim is really no different than a personal injury case. For instance, a pharmaceutical company has a duty to exercise reasonable care in the development, manufacture, and sale of a drug. This duty of care extends to all consumers of the product. If that duty is breached and results in injuries, or what’s known as causation and damages, then the same elements would apply in a mass tort action. The procedure to be followed will depend on the state laws that apply, which can differ greatly. So, if your case ends up in an MDL, it’s important to know the tort statutes that the court will apply.
How Compensation is Handled in a Mass Tort Claim
Given that mass tort claims consist of many people with varying degrees of damages, the parameters give rise to obvious questions about how compensation is distributed. Compensation in a mass tort action is not handled in the same manner asin class actions. In a class action, one plaintiff files a lawsuit and represents the interests of all other plaintiffs, and also provides evidence to prove that his/her experience coincides with the experience of other members of the class. In most cases, the defendant in a class action pays a lump sum that is then divided equally among all members of the class. Compensation, in these situations, may be insignificant for some plaintiffs who’ve suffered a higher degree of harm.
In a mass tort action, each plaintiff is treated as an individual. Since each plaintiff is subject to a separate trial, mass tort cases can take years to resolve. However, having an MDL to consolidate judicial efforts does free up the court’s resources and speed up the process. Moreover, while certain evidence may be used collectively, there’s no issue of one plaintiff representing the interests of all involved parties. Compensation in mass tort claims varies from plaintiff to plaintiff. This allows each plaintiff to pursue compensation proportionate to his or her level of harm and losses. For instance, a plaintiff who suffers a few thousand dollars in damages will recover fair compensation, while another who suffers tens of thousands of dollars will recover compensation commensurate with his/her damages.
Even if compensation may not be the same for all plaintiffs, the attorneys involved in the lawsuit may share details of their investigation and evidence in order to support their claims and consolidate the cases. For instance, if an expert witness was to give his/her testimony, he/she will only do so once instead of repeating the same things in thousands of cases. Therefore, plaintiffs also benefit from shared resources.
How the Amount of Compensation is Determined
Many people have the notion that compensation in a mass tort is modified based on the number of claimants. In most cases, the claims are negotiated on an aggregate instead of an individual basis. Sometimes the involved parties will agree on settlement criteria representative of all plaintiffs. Medical experts will examine all the medical records presented by the plaintiffto determine if they meet the criteria. Every point is valued, and then the numbers are plugged based on the medical data. A claim is valued based on the points earned from the medical data evaluation.
Take for instance, Takeda Pharmaceuticals, the manufacturer of Actos, which is a diabetes drug that has been linked to bladder cancer. In the mass tort litigation, a $3 billion settlement deal was reached and covered all plaintiffs. However, the amount wasn’t distributed equally among plaintiffs as would have been the case with a class action lawsuit. Instead, Takeda lawyers set up a matrix where they considered the plaintiff’s age, the dates of ingestion, the amount of Actos taken,the type of bladder cancer, the dates of bladder cancer diagnosis, was there removal of bladder tumor, were they on chemo, the medical care and treatment associated with the bladder cancer, whether it came back after treatment, and so on. They also factored in the plaintiff’s family medical history, whether one is a smoker, whether they were exposed to environmental contaminants or any other situation that would make someone likely to be at risk of developing cancer. Obviously, some factors will result in a point deduction, which may lessen the award.
If you’re healthy but diabetic 30-year old who took Actos and got bladder cancer, you’ll have to deal with the health problems for a long time and may need life-long medical treatment and care, whereas if you’re over 70, your points might be deducted due to the relationship between old age and diabetes. So, mass tort litigations create a system where each case is analyzed on an individual basis. As such, you’re compensated based on the level that would likely occur at trial if you were to file a personal injury case. Overall, mass torts allow for a large number of people to receive compensation efficiently and justly. That’s a great system that ensuresthat those injured by the wrongdoing of large corporations with massive resources are given a level playing field regardless of their socioeconomic status or financial means.
Compensatory Damages in a Mass Tort
Getting a sizeable compensation from a large corporation can be exceptionally difficult. They have massive resources, high-end legal teams backing them, and they may search for loopholes to counteract liability. However, with proper representation in a mass tort action, it’s impossible to get the compensation you deserve. You may be able to seek damages for:
- Disability and disfigurement
- Current and future medical bills
- Long-term care and physical therapy
- Transportation costs related to the injury
- Lost work time and loss of earning capacity
- The impact of the injury on your relationships
- Mental and emotional damages
How Soon After Settlement Can I Receive myCompensation?
The time it takes to get a settlement varies for each case. Typically, when a settlement agreement for the group is reached, there are many requirements that must be met, most of them involving governmental lien or subrogation interest,and their subparts. The involved parties may require a great deal of time to resolve the issue before compensating the plaintiff.
If a plaintiff’s medical treatment associated with injuries from a device or drug was paid for by another entity, the money will be paid back to that entity. This can take a significant amount of time. What’s more, things can be slower if the defendant has filed bankruptcy when the case was still pending. In such a case, the trustee might state that the claim is an asset of the bankruptcy estate and must be handled like any other asset belonging to the associated estate. In some cases, the money is held in a third party trust account and only reaches changes hands when the requirements are met. As such, some clients can receive the money within a few months, and others may have to wait for a year, or longer to be compensated.
Compensation and Subrogation Claims
If a dangerous drug or defective device has injured you and you incurred medical bills as a result. Your medical bills may have been paid by Medicaid, Medicare, Health Maintenance Organization (HMO), or your preferred health insurance company. If you receive compensation from the negligent manufacturer, you’re required by law to pay back the associated entity for the bills they paid. These claims from your insurance company are called “subrogation claims.”
The laws and procedures that deal with subrogation interests vary from state to state, and even among different insurance providers. However, since Medicare is a federal program, you will have certain obligations to partially reimburse the entity for the cost of care paid for you, no matter which state you reside. Similarly, a healthcare provider may have a subrogation claim if you’ve no paid for services related to your injury
Damage Caps in Mass Tort Cases
When you sue a negligent pharmaceutical company, you usually hope to get maximum compensation for your injury. Damages in mass tort claims are generally put into two categories: economic damages and non-economic damages. Economic damages are the specific costs incurred as a result of injury and can include medical bills, loss of income, or transportation costs to attend a medical session. Non-economic damages, on the other hand, refer to all other types of damages that cannot be quantified, such as pain and suffering, emotional distress, or loss of consortium.
Some states have laws that put limits on the maximum amount that can be recovered by the plaintiff in personal injury cases. These caps typically apply tonon-economic damages. Damage caps are an attempt to reduce the liability of service providers and manage the high costs of business. In addition to that, damage caps are meant to discourage people from filing lawsuits that are not viable just because they think they can be awardedmuch money. As such, courts want to make sure that justice is served to those who have suffered some form of injury and are seeking compensation. The cap amounts vary, ranging from $350,000 to $750,000. At the federal level, there’s a $250,000 cap on non-economic damages in cases involving medical malpractice claims.
Finding a Mass Tort Lawsuit Near Me
At Consumer Alert Now, our goal is to keep the public educated about dangerous medications and defective medical devices so they can be able to take the necessary legal steps if they’re harmed. We can also help you become a part of a mass tort claim by connecting you with a mass tort lawyer from your area. Call our mass tort attorney at 800-511-0747 or fill our online contact form for a free case evaluation.
