When a tortious act, actual or perceived, is committed that
adversely affects many individuals or entities, mass tort lawsuits
are often filed. The term "mass tort" refers generically to
tortious conduct that causes widespread harm to others.
Massachusetts courts, both state and federal, are the home to a
number of current mass torts actions. Multi-district litigation
(MDL), consolidated actions, and class actions are the common
vehicles by which such cases are often litigated. Because these
mechanisms are often confused with each other, this article first
provides a brief description of each, including their similarities
and differences, and proceeds to discuss some of the most
significant mass tort actions currently pending in
Massachusetts.
MDLs, Consolidated Actions and Class
Actions
When multiple separate mass tort cases are filed, courts are faced
with the challenge of how best to process such suits. The Judicial
Panel on Multidistrict Litigation (JPML) is a body of federal
judges that was created in 1968 in large part to address such
challenges. When numerous similar cases are pending in multiple
federal jurisdictions, and those cases have common questions of
fact, the JPML determines whether those cases should be
consolidated into one action, and if so, to where those cases will
be transferred. An MDL can be comprised of a number of individual
lawsuits, a number of class actions, or a mix of both.
Traditionally, the most common types of cases that are consolidated
into MDLs are product liability, antitrust, securities, trademark
and patent. When an MDL is created, the court chosen to receive the
MDL conducts the pre-trial proceedings, and then remands the
individual cases to the district courts where they were originally
filed, although under certain conditions trials may be held in the
MDL court.
In Massachusetts state court, multiple cases can be consolidated
for pre-trial or trial proceedings, or both, if they involve common
questions of law or fact. See Mass. R. Civ. P. 42.
Pursuant to Standing Order 9-80, if at least one party desires that
the consolidated cases be specially assigned to a particular judge,
it can submit a request for special assignment to the chief justice
of the Superior Court. Similar to the JPML panel, the chief justice
will then determine whether the cases should be specially assigned,
and if so, will also select the judge to be assigned.
With both MDLs and consolidated actions, it is standard practice
for the parties to select "bellwether" cases to be the first in the
group to go to trial. These cases are chosen because they are
"representative," that is, they present issues central to the
litigation and found in many of the pending cases. The endgame in
virtually all mass tort cases is settlement, and bellwether trials
are vitally important in assisting the parties to ascertain the
strength of both the liability and damages portions of their cases,
and thus their settlement value.
Although a class action is also a type of mass tort action, in
contrast to an MDL or a consolidated action, it is a single lawsuit
usually filed by one or a small group of individuals. Once a class
action is formed, it typically expands to include everyone in the
same class, or in other words, all who have allegedly been harmed
in the same way. The class action then proceeds as a single case
with a single outcome.
Assuming jurisdictional dictates are satisfied, class actions
can be brought in Massachusetts state courts if they meet the
requirements of Mass. R. Civ. P. 23, and can be brought in federal
court in Massachusetts if they comply with Fed. R. Civ. P. 23. Both
M.R.C.P. 23(a) and F.R.C.P. 23(a) require that the class be so
numerous that joinder of all members is impracticable; that
questions of law and fact common to the class exist; that the
claims or defenses of the representative parties are typical of the
claims or defenses of the class; and that the representative
parties will fairly and adequately protect the interests of the
class. In addition, M.R.C.P. 23(b) requires that a class action can
be maintained only if the court finds that the questions of law or
fact common to the members of the class predominate over any
questions affecting only individual members and that a class action
is superior to other available methods for the adjudication of the
controversy. The corresponding federal rule contains the same
requirements, but specifies additional requirements as well, which
make the federal rule more complex and make class actions less
readily available in federal court than in Massachusetts state
court. Two significant differences between the rules are that the
federal rule, unlike the Massachusetts rule, requires that notice
be provided to potential class members and allows a class member to
opt out of the class action.
In addition to M.R.C.P. 23 class actions, those class actions
asserting certain consumer protection claims pursuant to M.G.L.c.
93A are also available under Massachusetts law, but are subject to
different class action provisions that vary significantly from both
Mass. R. Civ. P. 23 and Fed. R. Civ. P. 23. For instance, a Ch. 93A
class action may be formed only where the use or employment of the
unfair or deceptive act or practice has caused similar injury to
numerous other persons similarly situated, and the plaintiff
adequately and fairly represents such other person. Notably, the
Supreme Judicial Court has recognized that the public policy of the
Commonwealth strongly favors the aggregation of consumer protection
claims as class actions under Ch. 93A. Feeney v. Dell,
Inc., 454 Mass. 192 (2009).
MDLs, consolidated actions and class actions all proceed in the
pretrial phase as single matters. But with MDLs and consolidated
actions, each individual claim is culled out for trial. Because
each claim will have its own trial, unless there is another
resolution of the individual claims or the group of cases as a
whole, the individual claims can have very different outcomes. In
contrast, in a class action matter, there is only one outcome, and
if the class is successful, then all members will share in the
settlement or verdict. Mass torts that result in personal injuries
or death are more likely to be merged into an MDL or a consolidated
action, rather than a class action, because the damages elements
can, and usually do, vary greatly from one plaintiff to the next,
and thus the class action model may not be as well-suited as the
MDL or consolidated action models.
The Benefits of Aggregation
In general, the aggregation of cases into an MDL, consolidated
action or class action yields numerous advantages over having many
cases brought by similarly-situated plaintiffs: they promote
efficiency by saving significant time and financial resources; they
reduce the opportunity for inconsistent rulings and they permit a
single court to make important pre-trial decisions. Indeed, many,
if not a majority, of defendants prefer such aggregation because of
these same benefits. Moreover, corporate defendants can
dramatically decrease the number of depositions they must give, and
greatly reduce the chance of witnesses giving inconsistent or
contradictory testimony. Plaintiffs also reap the benefits of
allowing their counsel to work together for the common benefit of
all plaintiffs and to pool their financial resources. Where a
single plaintiff may not be able to successfully pursue a claim
against a large corporation, which intends to vigorously defend
itself, when many plaintiffs band together, the challenge is much
less daunting.
Current Mass Tort Litigation in
Massachusetts
One of the largest mass tort litigations in Massachusetts involved
the diet drugs fenfluramine and phentermine, commonly known as
Fen-Phen. These drugs caused severe cardiopulmonary problems and
were recalled by the United States Food and Drug Administration
(FDA) in 1997. Fen-Phen cases were consolidated in a federal MDL in
Pennsylvania, and 200,000 cases settled globally in 1999 for
approximately $4 billion dollars. Massachusetts was the first state
in which a Fen-Phen wrongful death case was brought, and also had a
consolidated docket of thousands of Fen-Phen cases filed in state
court. Since then, mass tort filings have continued to grow in the
commonwealth.
Currently, there are 13 MDLs pending in federal court in
Massachusetts. These actions include claims of product liability,
antitrust violations, breach of contracts, improper sales practices
by pharmaceutical companies, patent infringement, improper debt
collections, and improper mortgage modifications. The two MDLs with
the largest number of consolidated claims are In Re: Fresenius
GranuFlo/NaturaLyte Dialysate (currently approximately 1,500
claims) and In Re: New England Compounding Pharmacy, Inc.
(more than 300 claims). Both are product liability actions arising
out of mass torts that caused many deaths and serious personal
injuries across the country. In addition, they both involve
products that were recalled in 2012.
The Fresenius cases involve products used in the
dialysis process that were designed, manufactured and distributed
by Waltham-based Fresenius, which owns a significant number of
dialysis clinics nationwide and is a major seller/supplier of
dialysis products throughout the country. In addition to the more
than 1,500 claims against Fresenius that comprise the MDL assigned
to the U.S. District Court for the District of Massachusetts, there
are nearly 3,000 similar claims pending against Fresenius in
Massachusetts state court. These claims have been consolidated in
Middlesex Superior Court and are presided over by Judge Maynard
Kirpalani, In re: Consolidated Fresenius Cases, Middlesex
Superior Court, CV2013-03400, and the first bellwether trial has
been scheduled for October 2015.
The NECC matter involves fungus-tainted steroid
medications prepared by Framingham-based NECC that were recalled,
and has led to investigations by the Federal Bureau of
Investigation, the FDA, the Center for Disease Control and
Prevention, the Massachusetts Department of Public Health and the
Massachusetts Board of Registration in Pharmacy, among others. At
the end of last year, a settlement was announced in which owners
and insurers of NECC had agreed to pay approximately $100 million
to victims of the tainted products. Because the settlement figure
is grossly inadequate to compensate all of the victims for their
losses, the claimants have brought claims against other entities
that may bear some legal responsibility, and the claims are still
proceeding against these other defendants.
Another significant Massachusetts mass tort litigation involves
Transvaginal Mesh (TVM), a synthetic mesh product that is used to
surgically treat conditions caused by the weakening of a woman's
pelvic muscles. Plaintiffs in these actions allege that these mesh
products have caused them to suffer from a wide array of vaginal,
bowel and bladder problems. TVM cases, like the Fresenius cases,
have both an MDL and a state court consolidated docket. Although
the TVM MDL is not pending in Massachusetts, there are two
consolidated state court actions pending in Middlesex County, one
against defendant Boston Scientific (headquarters in Natick, Mass.)
and the other against defendant Covidien (U.S. headquarters in
Mansfield, Mass.). Both defendants are makers of allegedly
defective mesh products. Judge Diane Kottmyer presides over the
Boston Scientific cases, and she has scheduled the first bellwether
trial for July 2014.
Asbestos Cases
Other mass tort cases brought in Massachusetts proceed as
individual cases. The most noteworthy of these cases, because of
their volume, longevity and number of different parties involved,
are those wherein plaintiffs allege wrongful death or personal
injury claims arising out of exposure to asbestos. Nearly all such
cases brought in Massachusetts are filed in state court, although
some cases are removed to and proceed in federal court. Thousands
of asbestos cases have been filed in Massachusetts spanning more
than three decades. These cases have a Superior Court justice and a
special master specially assigned to them, have their own docket
and electronic filing system, and have their own governing
pre-trial orders. Although the vast majority of these cases are
dismissed voluntarily or settled, four have gone to verdict since
the turn of the century, and the verdicts have all been in favor of
the defendants.
Beyond the court system, plaintiffs who claim asbestos-related
illnesses also have access to compensation from many bankruptcy
trusts formed by companies that manufactured and supplied
asbestos-containing products. Those companies went bankrupt
defending and paying asbestos claims, and the trusts have a current
total of more than $18 billion in available assets, with up to
another $12 billion pending. Despite the fact that most of the
actually culpable companies are now immune from suit as a result of
their bankruptcy, the availability of large trust funds, and the
string of defendants' verdicts, plaintiffs continue to file
asbestos claims in Massachusetts at a high rate. Indeed,
approximately 400 cases are currently pending in Massachusetts
courts, and new cases are continually being filed.
What's Next?
The availability of MDLs, consolidated actions, and class actions
to efficiently and effectively process huge numbers of claims by
victims of mass torts is of great import, especially now when
judicial resources are so scarce, the economy is still climbing out
of recession, and litigation costs are ever-increasing. There is a
wide spectrum of aggregated cases currently pending in
Massachusetts, in both state and federal courts, and attorneys who
practice in the field of mass torts do not anticipate any slowing
down in the filing of such actions. The bulk of the pending cases
involve Massachusetts-based companies, so many eyes are on the
outcomes of these significant matters.
Anthony V. Agudelo is a partner at Sugarman, Rogers, Barshak
& Cohen PC. He concentrates his practice in civil litigation
with an emphasis on products liability, personal injury, mass tort
and medical malpractice cases.