By Susan Barfield /
September 8, 2021

The Biggest Challenges For Mass Tort Firms

Mass tort litigation firms stand to recover large settlement amounts for their clients in mass tort litigation proceedings. Yet, when dealing with mass torts, these firms also face unique challenges compared to general tort and personal injury firms. Case Works can help explain those challenges and address how your firm can prepare to tackle them adequately and efficiently.

How Mass Tort Firms Are Unique

Mass tort litigation is a unique form of legal practice in that mass tort attorneys handle many similar claims from many different plaintiffs simultaneously. Each mass tort lawsuit focuses on one product. Defective product claims might involve:

  • Standard Consumer Products
  • Toxic tort exposures
  • Prescription drugs
  • Other liability claims involving numerous individual cases filed against the same defendants by similarly injured plaintiffs

Mass tort lawyers representing the consumers injured in these cases must handle each claim individually and as a whole to best represent all the plaintiffs.

More Complex Case Management

Mass tort litigation, or multidistrict litigation (MDL), involves hundreds, if not thousands, of individuals injured by one or more defendants, usually large corporations. As a result, mass tort firms require much more complex discovery processes for case management throughout the trial proceedings to adequately retrieve and maintain records for numerous individuals and data obtained from the corporations.

Although one or similar defendants caused the plaintiffs’ injuries, each injured person’s damages are unique, and the value of the many plaintiffs’ individual claims will likely vary, sometimes widely. Also, damages in mass tort litigation tend to occur over a long time rather than a sudden event.

An example is when a plaintiff uses a consumer product for many years, later determined to cause cancer. To build a case for a client in this situation, an attorney must review many years of medical records and studies or findings regarding the dangerous product. Good case management is therefore crucial for mass tort litigation firms.

More Extensive Time Management

Time management is also crucial for mass tort litigation firms. Mass tort lawsuits often take many years to resolve. In multidistrict litigation (MDL), a single judge in a federal court is usually appointed to handle hundreds or thousands of lawsuits. The MDL often involves so-called “bellwether” trials or test trials to determine the probable outcomes of how a jury might decide the majority of cases so that the parties can adjust their courtroom strategies or try to settle. This form of litigation can drag on for many years without resolution.

Less Personal Attention to Clients, Which May Cause Dissatisfaction

Recent feedback from clients of lawyers managing their mass tort lawsuits does not bode well for the industry. In August 2021, almost two-thirds of all female plaintiffs in multidistrict litigation reported that they were unsatisfied with their lawyers, didn’t trust their lawyers to act in their best interests, and weren’t pleased with the lengthy litigation timeline.

Attorneys who practice mass tort litigation can significantly benefit from outsourcing their case management to a company with tools and processes already in place, used to streamline methods and communicate more effectively with clients to ensure their satisfaction throughout the entirety of the litigation.

What are the biggest challenges for mass tort firms?

The biggest challenges for mass tort firms stem from the sheer number of plaintiffs that the law firm is handling in each mass tort litigation action. A typical MDL involves hundreds, if not thousands, of separate lawsuits. Unlike plaintiffs in class actions, injured persons in mass tort lawsuits all proceed on their own unique claims, with their own unique damages. Therefore, managing mass tort cases can be costly and time-consuming.

Challenges faced by mass tort firms include:

Mass Tort Conferences

Because of the time and expense involved in pursuing mass tort litigation, few firms can handle it on their own. Therefore, it’s usually beneficial for several law firms to consolidate their sources throughout the United States. The firms who file the first MDL claims often sponsor conferences and create a national coordinating counsel to encourage other firms to join in on the mass litigation.

Persuading other law firms to participate in your firm’s already existing mass tort campaign can be difficult because other firms may not believe they’ll reap the financial benefits your firm is promising. However, law firms can significantly benefit from outsourcing their mass tort litigation marketing to persuade other law firms to join the MDL.

Case Management

In mass tort cases, law firms must manage many complex cases while going through legal proceedings, including intense management of documents, claims, and parties. Therefore, handling mass tort litigation can become complicated and burdensome very quickly.

Hiring a firm with experience in case management for mass tort litigation can result in excellent outcomes for your law firm, freeing up your time to litigate the matter and be a strong advocate for your clients.

Case management in mass tort litigation includes:

  • Client intake and onboarding
  • Medical records retrieval and review
  • Systems for client communications
  • Maintaining client files
  • Monitoring and setting up tickler systems for deadlines
  • Creating plaintiff information sheets and medical histories
  • Resolving disputed claims once the parties reach a settlement

Time Management

Ensuring that everything is filed promptly with the court and managing deadlines for various actions and timelines for progression to bring everything together for a solid, smoothly transitioning lawsuit is crucial when you have so many individuals involved in mass tort litigation. Outsourcing administrative tasks and case management in mass tort litigation gives attorneys time to take on more cases and handle more lawsuits, thus increasing revenue.

It also relieves the law firm’s internal staff from having to learn complex legal processes associated with mass tort litigation. Instead, the firm’s internal team can devote their attention to supporting attorneys with litigation efforts rather than case management. Outsourcing essential tasks such as deadline tracking can also be vital to preventing malpractice and ethical breaches.

Multidistrict litigation is also unique in that it involves numerous firms, with some firms fronting a significant part of the costs. The common benefit doctrine is used in MDLs to divvy out costs and ensure that firms proportionately share expenses. Law firms can collect money from a common benefit fund so that they’re reasonably compensated for their share of the costs incurred in mass tort litigation.

Tracking time and expenses for the common benefit fund is a massive endeavor for law firms. Outsourcing these tasks to a company that knows how to properly and adequately manage time and expenses reports can be a great investment for attorneys involved in mass tort litigation.

Ensuring the Metrics Make Sense

Most tort firms must calculate the costs and metrics of each MDL to ensure that the return on investment (ROI) makes sense for their business. While fully important, tracking metrics adds an extra task for the law firm and its staff. However, this process is similar to the “due diligence” analysis that is a prerequisite to joining any other company. In other words, firms cannot skimp on this responsibility. Succeeding in mass tort litigation means following the same general rules necessary to succeed in any other business.

Outsourcing this due diligence task to a third party can free up time for attorneys and their support staff so they can focus on litigating the claims. A case management firm can help your legal practice identify goals and set up metrics to measure whether you’re reaching those targets.

Valuable metrics typically include:

  • Consumption Metrics
    The number of prospective clients that visit your website
  • Sharing Metrics
    How much your content is shared
  • Engagement Metrics
    How much time users spend reading your content
  • Retention Metrics
    The number of users that returned to your content
  • Lead Metrics
    The number of leads generated
  • Sales Metrics
    The number of clients who have hired your law firm
  • Coast Goals
    Comparing individual marketing costs to your overall costs

Document Retrieval

Document retrieval is a massive endeavor in mass tort litigation. Mass tort firms must gather thousands of documents necessary to litigate claims. Requesting the documents alone can quickly add up to an immense amount of work. Then, firms have to review, collate, and organize the files.

Mass tort law firms will often retrieve medical records dating back 10 years to determine whether plaintiffs suffered from preexisting conditions. Hiring a case management firm with automated document retrieval systems can significantly cut down on time and costs.

Outsourcing document retrieval can also help your firm immensely by allowing a third party to navigate HIPAA laws and other red-tape matters to access all relevant medical records and data. Additionally, a document retrieval company can handle authorizations as well as any necessary follow-up to ensure all documents are received timely and completely.

For medical records retrieval and management, hiring a case management company with established relationships with medical retrieval vendors can save your law firm time, money, and unnecessary aggravation.

Ethical Challenges

In addition to the complexities of case management, law firms involved with mass tort litigation can face enormous ethical challenges. Mass tort litigation rose to prominence in the 1990s, with huge settlements against asbestos and tobacco companies. Mass tort litigation has rapidly expanded to cover other industries, products, and areas of accountability in the past 30 years, including product liability actions against pharmaceutical and medical device manufacturers. Mass tort litigation has become so prolific that mass tort cases now represent more than 30% of all cases in federal courts.

Mass tort settlements are different from class action lawsuits in that the class members are awarded the same amount of damages out of one lump sum payment. In class actions, law firms can avoid conflicts of interest because the class members have demonstrated to the court that their damages are all roughly the same through typicality and commonality requirements. Furthermore, the class members can opt out of any proposed settlement.

By contrast, the plaintiffs in mass tort lawsuits often suffer different damages or injury severities and don’t share the typicality and commonality elements of class actions. Thus, even though thousands of plaintiffs may be lumped together in mass tort litigation, the plaintiffs’ attorneys must still treat each case on an individual basis.

The ethical rules governing attorneys for representing clients, resolving claims, and conflicts of interest, were developed within the framework of single-plaintiff and single-event lawsuits. These ethical rules require attorneys to understand the defendants’ liability, the amounts of the plaintiffs’ damages, what the plaintiffs’ claims are worth, and the likely outcomes if the cases went to trial for each individual lawsuit. The rules further require attorneys to inform their clients about settlement offers and help them decide whether to settle or pursue a trial. The problem is that defendants will rarely propose settlement amounts for each plaintiff in a mass tort action.

Of course, it’s difficult for plaintiffs’ attorneys to comply with these ethical rules with mass tort litigation because there are simply too many clients to communicate with on an individual basis. Also, in mass tort lawsuits, a settlement may be fair to one client and unfair to another because claims can differ widely as to the number of damages and eligible compensation.

Thus, attorneys must carefully navigate these potential conflicts of interest to avoid ethical oversights, breaches, or violations. A case management company can help plaintiffs’ attorneys with client communications, including required disclosures, to ensure the law firm stays compliant with ethical obligations.

How can I best face these challenges as a mass tort firm?

Outsourcing many of your firm’s management challenges can free up your time and energy so you can focus on providing the best possible representation to your clients.

Case Works is a leading litigation management company with decades of experience helping some of the nation’s most successful mass tort and personal injury law firms. We have experience in mass tort actions involving numerous consumer products and medications, including:

  • 3M Combat Earplugs
  • Defective knee replacements
  • Bair Hugger warming units
  • CPAP and BiPAP devices
  • Essure
  • Gadolinium
  • Hernia meshes
  • Invokana
  • IVC filters
  • Paraquat
  • Pradaxa
  • Risperdal
  • Roundup
  • Surgical staplers
  • Taxotere
  • Talcum powder
  • Tenofovir Disoproxil Fumarate (TDF)
  • Transvaginal meshes
  • Uloric
  • Xarelto
  • Xeljanz
  • Zantac

Our devoted team includes attorneys, paralegals, nurses, and health care professionals, offering a broad range of experience in the legal and medical industries. We provide numerous services tailored to your firm’s specific mass tort or other litigation needs.

Our comprehensive services include:

  • Intake, including new client onboarding and welcome calls
  • Medical record review and summaries
  • Managing communication with clients
  • Medical record retrieval and management
  • Coordinating client diagnostic services
  • Managing case operations, including closing out cases near settlement deadlines and preparing demand letters

Your firm can choose as few or as many services as you’d like to cater to your present and ongoing growth and needs. We strive for transparency and will always be upfront about our available assistance and any accompanying costs to ensure you’re taken care of and our help is most beneficial to you.

Contact Case Works now to learn how we can help you confidently face and overcome the biggest challenges in mass tort litigation proceedings.