What Is A Mass Tort?
Defining Mass Torts
Invariably, books on mass torts include an obligatory section attempting to define what a mass tort is and is not, or at least identifying some common characteristics of mass torts. First, “mass” in mass torts suggests some threshold number of cases with common characteristics. Some mass torts include dozens or hundreds of injuries, but others may include tens or even hundreds of thousands.[1] Second, the inclusion of “tort” in “mass tort” suggests injury of some sort, usually personal, but possibly also to property. For this reason, mass torts may be contrasted with other types of complex litigation that affect hundreds or thousands of individuals or entities, such as shareholder or antitrust litigation. Yet already the distinction begins to break down, since shareholder litigation usually alleges fraud or breach of fiduciary duty, which are common law or statutory torts (or both).[2]
When a mass torts involves use of a drug, device, or consumer product, the injuries (and resultant lawsuits) will be geographically dispersed. The same is true for mass torts involving exposure to a product—asbestos, benzene, per- and polyfluoroalkyl substances (“PFAS”), herbicides, and so forth. But a mass tort may also involve a single event such as a refinery explosion or airplane crash, with procedural implications we will discuss in later chapters.
Mass Torts As Aggregation
It has been suggested that “[o]ne of the hallmarks, if not part of the definition of the term, of mass torts is the congregation of the cases involving in the litigation.”[3] But even this observation fails to capture the full picture. The opioid litigation, for example, has traditional characteristics of a mass tort occurring within a larger framework of litigation—both aggregated (a federal MDL in Ohio and federal MDL in California against McKesson brought by municipalities and other public or quasi-public entities) and un-aggregated (suits brought by state attorneys general in Oklahoma, California, Washington).[4] This litigation, as well as litigation involving such products as JUUL e-cigarettes, PFAS and aqueous film firming foam (“AFFF”), and talc further blur the boundaries of mass torts because they involve not only aggregated suits brought by individuals alleging both personal injury, but also consumer protection and federal civil RICO causes of action, as well as the suits brought by public entities alleging causes of action that bear only passing relation to those brought by individuals.
Indeed, the fact that mass torts often injure different people, at different times, and in different places means that there may be multiple forums of consolidation at both the state and federal level, and also isolated suits proceeding outside of any aggregate litigation (with or without coordination with one of the consolidated proceedings).
Another result of the multifaceted nature of mass torts is the dearth of one-sized-fits-all rules. Concrete rules crafted to ensure just, speedy, and efficient litigation in one mass tort would cause foreseeable-but-unwanted consequences in another, and unintended consequences in a third. In fact, it might be said that, with the exception of a single, brief section of the U.S. Code and a set of local rules governing practice before the Judicial Panel on Multidistrict Litigation, there are no mass-tort-specific procedures at the federal level.
The “Mass Effect”
Whatever the true contours of “mass torts,” it may be observed that the law of mass torts bears a veneer of idiosyncrasy—often referred to as the “mass effect”—which emerged as a result of the need to apply legal doctrines created for individual cases to consolidated litigation containing thousands of cases. The “mass effect” of mass torts—sometimes prominent, sometimes veiled, but ever-present—pervades both those legal doctrines that have been coopted for use in mass torts and those developed to deal with problems unique to mass torts.
One of the simplest examples of the mass effect of mass torts comes in the form of client representation. Typically, federal mass tort litigation involves the appointment of a committee of plaintiffs’ attorneys, who litigate the general liability theory on behalf of not just their own clients, but also all clients with a case filed in federal court. The same is true to a greater or lesser extent in state-level consolidated litigation. This group briefs and argues case-dispositive motions, conducts discovery, retains general-causation experts, and defends those experts from Daubert challenges. Often, these attorneys will be involved in settlement discussions with the defendants, even as global settlements become less and less common. Thus, the attorney who is not part of the appointed committee may have little to no input on the central decisions and activities relating to the case. Should the case ever result in a recovery for their client, they may then find that 25% or more of their contracted-for legal fees go to that committee, who has provided a common benefit for all affected plaintiffs.
At the same time, the client’s choice of who represents them in the litigation is usurped. The court may dismiss the litigation for failure to state a claim, or at the summary judgment phase because a key causation expert’s testimony is disallowed, and the client may have had no input whatsoever on the attorneys selecting the theories of the case and the experts to support them. The generally sacrosanct fiduciary and ethical duties attorneys owe their clients are also weakened if not entirely absent between steering committee attorneys and non-client plaintiffs for whom they provide a common benefit. Indeed, there may even be conflicts between the insiders’ and outsiders’ clients. A steering committee member may be able to leverage their position and access to defense counsel to negotiate a settlement of their inventory of cases—a settlement that may not be available to plaintiffs who are not represented by insiders. Finally, should such a settlement be consummated, the steering committee member may resign from the committee, depriving it of not only labor but also institutional knowledge, which may be detrimental to the litigation (and the remaining plaintiffs) if the erstwhile member played a key role.
Yet what is the steering committee member to do? While they may have limited or no fiduciary or ethical duties to non-client plaintiffs in the litigation, they undoubtedly have such duties to their own clients, one of the foremost of which is the need to achieve the best possible result for those they represent. In the event of a conflict between the interests of those they have contracted to represent and those they have not, do they not have multiple duties to serve the former?
Admittedly, these are difficult questions on which there are a variety of opinions, and the purpose of this discussion is not to resolve them. They do foretell, however, the sorts of difficulties that myriad areas of doctrine have attempted to grapple with as mass tort litigation has grown over the past half-century. And, perhaps, they demonstrate precisely the complexity that cautions against linear, bright-line rules, when the complexities of mass torts transcend both substantive and procedural lines.
[1] Asbestos, 3M earplugs.
[2] See, e.g., 17 C.F.R. § 240.10b-5 (1968) Restatement (Third) of Torts: Liab. for Econ. Harm §§ 9, 16 (2020).
[3] Paul D. Rheingold, Litigating Mass Tort Cases § 1:1 (May 2021 Update).
[4] The opioid litigation is also different in that many of the claims, while sounding in tort, are of the less common “public nuisance” flavor, which in turn demands a far different damages model than that found in garden-variety, personal injury mass torts.