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The Sidebar podcast, a series focused on top South Carolina trial lawyers, recently invited attorney Jay Ward to share his insights on mass torts, class action suits, and complex products liability litigation. Jay spoke with host and attorney Mark Bringardner about how these cases work, as well as offered advice for small firms interested in consumer litigation.

Let’s talk mass torts and class actions

Attorneys Ward and Bringardner discuss Jay’s early career in class actions working on the defense side, providing him with the experience he brings to his consumer-focused work today. He’s played a significant role in complex litigation involving pharmaceuticals, defective products, and consumer protection. Some class actions and mass torts in the news recently include Roundup and non-Hodgkin’s lymphoma, talc and ovarian cancer, and 3M defective military earplugs.

For attorneys who may be interested in mass torts, Jay explains the basics of how they work, using a dangerous drug as an example:

  • You may meet with a client, or read about an adverse effect, reaction, or FDA statement that is NOT listed as an existing warning on the drug label.
  • Typically, one case comes, then another, then another, and cases are consolidated into one court, called multi-district litigation (MDL), and one judge is assigned to preside over the cases.
  • The court appoints a leadership and steering committee with a lead attorney or attorneys, who put the case together.
  • The fact and expert discovery applicable to all cases is conducted.
  • A small subset of “bellwether” cases is selected, and fact and expert discovery specific to those cases is conducted.
  • One or more of the bellwether cases are selected for trials. These trials are intended to give the parties and the court an indication of what would happen if all the cases were tried, and the outcomes often lead to global resolution of all the cases.

But how does everyone get paid? Attorneys and plaintiffs?

After a global resolution is reached, Jay says, there are many moving parts. MDL courts typically establish what’s called a Common Benefit Fund from which the lawyers who performed work for the benefit of all plaintiffs can be paid fees and reimbursed for expenses out of each individual settlement.  Make no mistake, mass torts are expensive and require an incredible amount of work. Separately, the attorneys have their independent contracts with their clients.

As for the plaintiffs, a significant amount of consideration must go into dividing a settlement or court award. Typically, lead attorneys use information from things like plaintiff fact sheets and other documentation. They separate injuries into “buckets,” like severity of injury, age, cost of treatment, fatalities, etc. Jay admits it’s not a perfect system, but mass torts often involve tens of thousands of claims that could not all be litigated separately.

If your firm wants to pursue mass tort or class action litigation

Jay recommends always consulting with a firm experienced practicing in the mass tort and class action space. If you believe you have a mass tort or class action on your hands, you may be unaware of ongoing litigation where you don’t have to start from scratch. One of the most important things to remember is you must be careful on what you choose to spend your time, money, and resources. Jay prefers to work on consumer products that cause one specific injury, rather than products or pharmaceuticals that can cause a range of injuries that may be difficult to trace back to a single cause.

Working with a firm that has experience and expertise in mass torts and class actions can be the best way to start off. If you’re a small practice without a lot of administrative help, you can work with a service to help handle the paperwork.

Concerns for the future

Finally, Jay discusses his concerns for consumers regarding recent legislation and court decisions concerning mandatory arbitration clauses. He feels they are devastating to consumers and strips them of their rights to sue corporations over harmful or injurious business practices.

McGowan, Hood & Felder, LLC continues to protect consumers across South Carolina and is pleased to work with other law offices and attorneys on mass torts and class actions.