Mass tort litigation/ medical mass torts are designed to seek and address compensation for large numbers of people who have suffered similar injuries allegedly caused by a common source. Because of their scope and complexity, these cases often affect public policy changes and standard operating procedure amendments by businesses.
Serious injury caused by pharmaceutical drugs and medical devices is often a catalyst for mass tort practice, whether it be through a class action lawsuit or multidistrict litigation. Understanding the basics of how these drug and device cases work is critical to developing as a mass tort professional, whether it be as a paraprofessional, paralegal or attorney.
Here is an overview of each type of products liability case.
The First Type of Medical Mass Torts, Pharmaceutical Drugs
In these cases, the allegation is that a widely used medication has caused certain types of serious injuries, debilitating side effects or permanent medical conditions. These mass torts target both prescription and over-the-counter (OTC) drugs manufactured and distributed by large pharmaceutical companies.
Examples of recent cases involving drugs include claiming damages caused by acid-reflux/heartburn drugs classified as proton pump inhibitors, and Zantac, another popular acid-reflux drug. These drugs can be purchased as OTCs or via prescription. In the PPI MDL, the plaintiffs allege that the medications caused chronic kidney disease in some users. In the Zantac MDL, which is growing rapidly and gaining media attention, the claim is that the drug breaks down into a known carcinogen known as NDMA and that longtime Zantac users suffered liver, bladder and other cancers as a direct result.
To sustain a pharmaceutical tort, plaintiffs have the burden of proving:
- That they indeed bought or were prescribed the medication at issue
- That the type of injury did in fact occur
- That treatment from a medical professional such as doctors, nurse practitioner and physical therapists was sought
- That long-term or life-altering damage was suffered.
Securing this proof takes a thorough gathering of facts from prospective and actual clients of your firm, a review of medical, pharmacy and insurance records, interviews with and deposition testimony from expert witnesses and perhaps supporting validation from the scientific research community.
Often, investigations pre-dating the mass tort, including information revealed publicly by the Food and Drug Administration, and information gained during discovery will reveal or strongly suggest fraudulent misrepresentation, concealment or marketing on the part of the defendants. This births related causes of action that increase the liability of defendants and the amount of damages recoverable by plaintiffs.
For instance, in an MDL that reached private settlement in 2019, evidence showed that the second-generation antipsychotic medication Abilify caused severe compulsive behaviors, especially gambling. Research studies that demonstrated these behavioral injuries were published for several years prior to an FDA safety warning in May 2016 announcing findings of these injuries, forcing defendants Bristol-Myers Squibb and Otsuka Pharmaceutical Co. to add this side effect to Abilify’s “black box” warnings. The plaintiffs in these MDL cases alleged that the defendants knowingly failed to warn about the side effect.
The Second Type of Medical Mass Torts, Medical Devices
While cases alleging defective medical devices share procedural and evidentiary necessities and standards with cases involving drugs, they represent their own distinct category of mass tort. Medical device litigation is closer in character to non-medical products liability cases, where injuries are more immediately and visibly apparent.
These medical devices are used to directly treat or support the treatment of medical conditions. Examples of devices that have been subject to mass tort litigation alleging design or manufacturing defects include defibrillators, contraceptive rings, artificial hip components and transvaginal mesh.
Transvaginal mesh multidistrict litigation was among the most explosive injury-related law of the last decade. Aspiring mass tort professionals should study the long-form complaint in perhaps the most famous of these MDLs, the now and settled and closed In re; Boston Scientific Corp. Pelvic Repair System Products Liability Litigation for insight on how to plead medical mass tort causes of action.
Transvaginal mesh is a device made from collagen and other materials and is used to treat pelvic organ relapse, stress urinary incontinence and other conditions in women. Plaintiffs alleged that this mesh, once inserted, caused inflammation and chronic vaginal pain, among other maladies, either due to reactions to materials or to shrinkage or other physical displacements.
The complaint also alleges the defendants knew or should have known of these issues directly caused these injuries and developed alternatives, citing a 2011 FDA report than declared such complications were “not rare.” In spite of this scientific insight, the defendants allegedly refused to alter their marketing or disclosure practices.
DIFFERENT PRODUCTS, SAME CAUSES OF ACTION
The long form complaints in both the transvaginal mesh and Zantac MDLs discussed here share a nearly identical list of causes of action. The common causes of action are:
- Three strict liability counts (design defect, manufacturing defect and failure to warn)
- Breach of express warranty
- Breach of implied warranty
- Loss of Consortium
- Fraudulent concealment or misrepresentation
The Zantac complaint also includes a count alleging the wrongful death of some plaintiffs in the MDL.
A Final Thought on Medical Mass Torts
When you start litigating medical mass tort cases, you’ll find that you will need to learn medical language, scientific research processes and the development of manufacturing and design specifications. You also will need to sharpen the critical thinking skills required to manage large-scale client intake and discovery, qualify plaintiffs, interpret data, asses proximate causation and administer settlements.
The process may seem daunting at first, but you will likely find yourself building real value for yourself in short order by functioning as mass tort professional.
To learn more about mass torts, and to keep updated with ongoing cases check out the Mass Tort Institute’s website. You can also sign up for the MTI memo, our monthly newsletter for news, discussions, and more.
Written by Christopher O’Connor
About the Author
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 law practice management. He also possesses CIPP/US certification as a privacy professional.
O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting and cooking for his wife.