Mass torts work as civil actions involving numerous plaintiffs against one or a few defendants in state or federal court. The lawsuits arise out of claims the defendants caused numerous injuries through the same or similar acts of harm. Mass tort cases are complex and subject to intricate legal procedures which can vary in state and federal courts. Cases are often combined into multidistrict, statewide, or multi-county litigation when there are common questions of fact and law.
Mass torts work by requiring significant capital investment to acquire and manage a large volume of cases, experienced litigators, and effective and well-trained support staff. It can be helpful to break down the mass tort process into steps.
Six-Step Mass Tort Process
Here is a six-step mass tort workflow in the claims process:
- Medical Workup
- Settlement and Disbursement
Below is more information on each step.
Marketing in Mass Tort
In mass tort, marketing is defined as attracting new clients to your law firm. Marketing can be traditional as in television, radio, and billboards, or it can include digital marketing, search engine optimization (SEO), blogging and microblogging, and social media advertising.
Many companies offer marketing services to mass tort law firms, including Consumer Attorney Marketing Group, XSocial Media, Scorpion, and Alert Communications. The advertising campaigns focus on a particular product such as talcum powder, Roundup, or Truvada. The advertisements themselves often reference the corporate defendant at fault or the specific or singular injuries associated with the litigation.
When a potential client sees the advertisement, they can fill out an inquiry form or call an 800 number to be screened by a qualification team. The qualification team will gather initial information and create a fact sheet on the prospective client. Qualified leads are then sent to your legal or designated intake vendor where the prospects are further qualified and converted into signed clients.
Client intake is the onboarding process for new clients and the collection of the demographic and injury information that is needed to open their legal cases. Intake can be handled by specialized staff often known as intake specialists, or paralegals, or even attorneys themselves.
Intake is the most important step in the process of how mass torts work as it separates “probable” cases from “likely” ones, thus decreasing the law firm’s risk of being unable to receive compensation on the legal claim. Because mass tort clients are signed up on a contingency basis, firms must be careful in selecting cases that have a high likelihood of resolution by a defendant. The intake staff sends the prospective client the required intake documents which often include:
- Contracts for Employment
- Medical Release of Information Authorizations
- Questionnaires tailored to the specific litigation at issue
Once the client is onboarded there may be additional documents the firm requests. These include:
- Insurance Information
- Bankruptcy Verification
- Social Media Policy
The intake team follows up with the client until all documents are returned.
Attorneys working on the claim need a contract signed before they can engage in any work on the case. The questionnaire provides more background into the client’s allegations. While the medical authorization allows the legal team to begin ordering the requisite medical records needed to prove the client’s allegations. In financial loss cases, authorization for financial and bank records is included as part of the intake packet.
Medical Workup in Mass Torts
Once the medical records are retained, the process of summarizing and organizing the documents begins.
Most lawyers and paralegals do not have the time nor the training to pull apart the medical facts of a case, display them in a timeline, and extract significant facts along the way. And so, they hire legal nurse reviewers to analyze medical records and provide medical chronologies, which can include some or all of the following information:
- medical history
- pre-existing conditions
- the onset of symptoms and/or complications
- pre-surgery complications
- post-surgery complications
- missing medical records
The law firm orders all claim-related medical and pharmacy records and obtains product identification including manufacturer, device name, lot number, and expiration date (if any). They also keep in touch with the client for any additional surgeries, procedures or treatment.
Pre-litigation refers to the legal process that happens before a lawsuit is filed. While every case is different, the pre-litigation phase typically includes protocols and stages such as notice, investigation, demand, and settlement negotiations.
Prior to taking a case to court, an attorney must have all the pertinent facts relating to the case. All required and important information is gathered during the pre-litigation investigation process. The type of information includes copies of insurance claims, employment records, medical records, and any other type of record necessary for the case. This is also the time an attorney will speak with witnesses and take statements.
In mass tort, the pre-litigation process includes:
- Identification of manufacturers of devices; collection of all evidence related to manufacturers
- Screening clients for potential as witnesses
- Working with clients and client spouses to prepare all items needed for discovery (financial, medical, employment)
- Preparing complaints; handles service of process
- Identifying local and co-counsel for litigation
Litigation in Mass Torts
Depending on the venue, mass tort litigation can be centralized into multidistrict litigation also known as “MDLs”. MDLs are where plaintiff leadership creates the structure for the handling of lawsuits after they are filed with the court.
For cases outside of multidistrict litigation, the normal litigation steps such as initial disclosures, discovery, dispositive motions and other undertakings are handled by the legal team. A firm may also need to employ local counsel in a particular venue to help with the specific local rules required for litigating cases. Other reasons for employing local counsel include:
- Local counsel familiarity with the presiding judge
- Local counsel familiarity with local rules
- Local counsel connections to good mediators, if necessary
Settlement and Disbursement
Once a lawsuit has been won or a settlement has been reached between a claimant and a defendant, the settlement is paid to the claimant’s law firm. That law firm is then responsible for all administrative steps required to release funds to their client, including:
- Preparation of a settlement statement that details where all the proceeds will be paid.
- Clearance of medical and other debts
- Payment to creditors of the claimant
- Deduction of law firm fees and expenses
- Deduction of common benefit fees and other costs associated with multidistrict litigation
There are additional methods of receiving compensation in special cases. For example, if the claimant is a minor and the amount of the award is over $10,000, a minor settlement fund generally must be set up to ensure that the proceeds go for the benefit of the minor.
In some instances, it may be beneficial to the injured claimant to gain interest on a settlement and receive future payment(s). These can be monthly, yearly, or any number of larger lump sum payments. These structured settlements are set up by an independent financial advisor.
Are you ready to take the leap and start a profitable and fulfilling mass tort practice? The Mass Tort Institute’s Practice Management for Attorneys certification course aims to equip attorneys with the foundational knowledge they need to build a successful mass tort practice.
For continuing updates and more information on how mass torts work, check out our Sidebar Blog. We have information from everything to the basics to the complexities that exist in the mass tort space.
Written by Jerise Henson
About the Author
Jerise Henson is the Academy Content Writer at The Mass Tort Institute. She has served in numerous roles in mass tort firms from case manager to paralegal and director of client services. She is passionate and dedicated to improving education and training for allied professionals in the mass tort industry.
The Mass Tort Institute is a consortium of industry leaders dedicated to providing education, training, and networking opportunities for those advocating on behalf of mass tort victims.