OPINION:
What do the rock musician Sting and socialite Paris Hilton have in common? Besides fame and popularity, both will be guests at an upcoming gathering of trial attorneys, which will take place at the swanky Bellagio Hotel in Las Vegas.
Trial attorneys focused on mass torts gather twice yearly at Mass Torts Made Perfect, a conference where they learn how to recruit plaintiffs, maximize the power of multimillion-dollar advertising budgets, and use banks to support the process.
A mass tort is simply when various individual plaintiffs bring claims against a small number of defendants. Think of a few hundred people with similar suits against a bank or a bakery.
As you might have guessed, this has become a big business, with an entire industry growing up around the process. This includes marketing firms that specialize in plaintiff recruitment by using both traditional and digital media platforms.
The people who sign up are then often sold as “leads” to law firms, sometimes for thousands of dollars per person. Law firms then hire doctors and medical professionals to evaluate plaintiffs and even perform procedures. All work together to build pressure against a company to settle when faced with thousands of claims.
Despite these being individual cases, these law firms are not focused on the facts of the cases. Often, the claim that a product harmed a particular person is weak and has no causal evidence.
But that doesn’t matter. What matters is recruiting as many people as possible because similar cases will be consolidated for review at the federal level before even a fact of a case is reviewed by an outside party. Think of it as multi-level marketing meets “The People’s Court.”
This consolidation at the federal level is called MDL, or multidistrict litigation. Stemming from a 1960s law, the Judicial Panel on MDL was designed to group cases with similar facts for streamlined pretrial proceedings. The intent was for these cases to return to the originating court for trial, with each case reviewed on its own merits.
Law firms, however, have taken advantage of this system and now focus on overwhelming the MDL process with cases. In 2019, MDLs began to constitute more than half of federal cases. Lawyers leverage MDLs and the substantial cost of litigation a company may face in order to procure a large settlement. Even though the cases don’t go to trial and the facts aren’t reviewed, the number of cases often builds a narrative in the media that a product is harmful.
The mere accusation and number of lawsuits puts enormous pressure on companies to settle, which is often easier than fighting thousands of cases individually — no matter how weak they are.
Many companies have been the target of this type of litigation, and every manufacturer is vulnerable. The same type of predatory law firms described above regularly canvass the news for anything that might ignite a lawsuit, such as a laboratory announcing new findings regarding the side effects of a drug.
What isn’t obvious is that these findings often aren’t substantiated by further research. Even more alarming, these studies and labs are sometimes funded by law firms themselves.
These firms know they don’t have to prove their claims. They just need to create alarm and recruit potential plaintiffs.
One example is the prescription medicine Zofran. For years, it was used off-label to help pregnant women with debilitating nausea.
In 2012, the Department of Justice fined Zofran’s manufacturer for its off-label use. That’s all it took to kick-start litigation alleging that the drug caused birth defects. Millions of dollars in legal fees and a few years later, it turns out the Food and Drug Administration had fully reviewed the drug’s risks and didn’t find a warning was needed. Although there wasn’t a massive settlement in the case, these victories are few and far between.
Congress needs to address the abuse of the MDL system and the incentives it creates for filing unsubstantiated cases. A report issued by the Federal Advisory Committee on Civil Rules estimated that in mass product cases, 20% to 30% of claims are “unsupportable” because the product wasn’t even used or no actual harm was suffered.
The Federal Rules Advisory Committee is reviewing a new rule for MDLs, but it does not go far enough. Congress must address this broken system and create stronger reforms so that lawyers aren’t making millions from speculative claims.
• Phil Bell is director of external affairs at FreedomWorks.
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