Mass Tort Institute founder Terry Dunken has literally written the book on how to succeed as a mass tort attorney. Mass Tort Secrets provides end-to-end guidance for attorneys who want to build their own mass tort practice, and for current mass tort practitioners who hope to become more artful businesspeople: better profits, not just better results. Dunken offers many pointers in Mass Tort Secrets. This article discusses one of them.

Mass tort law can be an exciting practice area for attorneys. It is ever evolving, and it offers a chance to help many clients earn justice, and damages, against a single corporate bad actor for their injuries, whether physical or financial. Yet mass tort is not simple, nor does it bring the guaranteed windfall the whole “mass” thing might suggest. It naturally takes the ability to organize and manage a large caseload, but it also takes discernment and a strong business acumen.

Let’s say you’re just getting started as a mass tort practitioner. You see that as of November 15, 2021, there are 183 active multidistrict litigation (MDL) cases in federal district courts across the country. Cool, but which ones should you select as you seek your initial clients? Careful mass tort selection may be the most important element of growing and sustaining a successful practice. These are high-risk, high-reward matters by their very nature; it takes a heavy investment to produce a strong return. As with racehorses, a bad bet can prove costly.

As Mass Tort Institute founder Terry Dunken writes in his book Mass Tort Secrets: “[B]efore you jump headlong into any mass tort litigation, you must be business-like…The key is to do your research in advance to determine the smartest investments.”

Here are three variables, then, that you must consider in selecting mass torts:

Study Past Mass Tort Success—and Failure

Is there a mass tort similar to a current intriguing one that proved to be both sound and lucrative?

Conversely, is there another mass tort that looked like a slam dunk on the surface but proved to be a lemon?

For instance, imagine how the plaintiff’s attorneys who got involved in In Re: Lipitor (Atorvastatin) Marketing, Sales Practices and Products Liability Litigation must have felt a few years back when the court dismissed most of the cases on summary judgment for lack of credible expert testimony that established a nexus between the cholesterol drug and the onset of diabetes in women.   

On the other side of the spectrum, perhaps a potential mass tort strikes you as being just as compelling, as massive, or as egregious as the longstanding asbestos litigation saga, which Dunken calls “the granddaddy of all mass torts” in Mass Tort Secrets. In re: Asbestos Litigation may be the ultimate case study in justice at scale. The law and the science have proven to be so solid, and the docket is so righteously swollen, that the MDL court in the Eastern District of Pennsylvania was eventually forced to whittle things down to only a handful of cases. Settlement payouts from defendants into the tens of billions of dollars continue to this day.   

Either way, you will want to study how mass tort cases similar to the one you might want to pursue unfolded. Questions you should ask include:

  • What was the outcome?
  • What was the settlement amount?
  • How long did the MDL effort last?
  • How big was the population of claimants, anyway?  
  • How much did it cost to litigate the MDL?
  • In your estimation, was this case sufficiently profitable to the degree you would need to help fund the next mass tort you may select?

Emphasize Causation in Your Analysis

The Lipitor and asbestos examples suggested the question, but let’s state it explicitly: How ably can the plaintiffs in a mass tort prove that a dangerous drug, or medical device, or a household chemical, or a business practice actually caused the alleged injury?  

What scientific research exists purporting to demonstrate a connection? What unknowns and further proof will be needed via testimony from expert witnesses during discovery? Which experts do you anticipate could or will testify?

Generally speaking, the more literature and study that’s out there, the more comfortable you may feel about pursuing clients for a particular MDL. Take the current explosive Zantac MDL. Scientific studies dating back years show a direct link between exposure to the chemical MDNA and the formation of cancers to the pancreas, liver and other organs. That seems to make the allegation that the heartburn medication Zantac broke down into MDNA more palatable before a single expert witness is ever deposed.

However, in the absence of such peer-reviewed literature, the quality and nature of expert testimony could well be determinative, with or without a Daubert hearing.

In his book, Dunken talks about a famous mass tort involving allegations that defective breast implants caused injuries to women who received them. That mass tort effort found defendants often using a plaintiff’s doctor as the expert witness to refute the claims against them and other plastic surgeons. This anecdotal testimony made establishing a scientific foundation problematic.   

“There’s nothing worse than having your client’s own treating physician testify against your case theory,” Dunken writes.    

The Judicial Panel on Multidistrict Litigation consolidates cases into MDLs in federal jurisdictions across the country. Several of those jurisdictions, though, are hotbeds for MDLs. These include the Northern District of California; the Southern District of New York; the Southern District of Florida; the Northern District of Illinois; the Eastern District of Pennsylvania; and the District of New Jersey.

Be instinctive: If you are exploring the possibility of joining a mass tort pending action from the JPML, how likely do you feel it would be assigned to one of those district courts?

Get a Sense of Which Judge May Preside, or Is Current Presiding

Even if you’re looking to hop onto an existing MDL, you will need to draw on a similar instinct, and then research accordingly.    

It behooves you, as a result, to learn what you can about the tendencies of the judges within these districts, or who are already assigned to these cases. Find out:

  • Do they historically rule more favorably for plaintiffs or defendants?
  • What is their political bent?
  • How often do they appoint magistrates, and for what functions?
  • Crucially, what is their track record for admitting the types of expert testimony you’ll need via Daubert hearings? 

To quote Dunken in Mass Tort Secrets: “These considerations should be front and center when you’re weighing the strengths and weaknesses of potential cases.”

A Final Thought

The size and complex nature of mass tort litigation dictate that the effort you put into selecting a winning mass tort will need to be intensive—and intense.

If you frame your selection analysis around the elements and questions we have discussed here, you may just find yourself in a position to make a wiser, more profitable decision.    

Ready to make the leap into mass tort practice? Let Mass Tort Secrets be your most authoritative how-to resource. Buy this important book today.

Christopher O’Connor, Esq., is a licensed attorney (N.Y.) and a longtime journalist. His areas of focus include mass tort practice, employment law, enterprise technology, mental and spiritual health, and e-discovery. O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting, and cooking for his wife. 

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