As printed in The Trial Lawyer magazine, published by The National Trial Lawyers.
A growing number of plaintiff's personal injury attorneys are starting a mass torts practice area, taking advantage of the federal multidistrict litigation (“MDL”) system that efficiently consolidates the cases of individual plaintiffs against major corporate defendants.
The phenomenon has been fueled over the last 15 years by companies that intentionally, criminally or negligently sell drugs and medical devices with dangerous side effects that harm thousands of plaintiffs.
Ordinarily, a personal injury practice consists of one-off, single-event matters. In contrast, a mass tort practice offers economies of scale, where an attorney can represent numerous plaintiffs who have been injured or killed by the same drug or medical device. Based on conservative estimates, two to four million people per year are injured in mass tort cases.
A mass tort practice is an opportunity for law firms of any size. So many attorneys are starting mass torts practices that the litigation now makes up 36 percent of the entire federal civil docket -- up from 16 percent in 2002 -- demonstrating the success of the MDL approach.
Hallmarks of mass tort cases
- Many plaintiffs but the same defendant.
- An economy of scale -- the average cost to acquire a client declines as more clients are obtained.
- Common legal issues and facts.
- National practice in single federal court.
- Consolidated discovery by plaintiffs and defendants.
- Court-approved short-form complaint and plaintiff fact sheet available on court website.
- The court appoints a plaintiffs' steering committee to manage the litigation.
- A 5-7 year settlement window.
Most mass tort cases are product liability cases against pharmaceutical and medical device companies. Other mass torts involve airplane crashes, train wrecks, hotel fires, asbestos, patent, antitrust price fixing, data security breaches, securities fraud and employment claims.
It is the only practice in which economies of scale exist. These cases are national in scope and involve filing same primary claim over and over for multiple plaintiffs. The math is compelling: in the right situation, it can cost $1,500 to acquire a client with a case that will settle for $300,000.
Once the federal court forms an MDL, a plaintiff's steering committee is appointed to run the lawsuit, take discovery and make decisions on behalf of all clients. To facilitate the filing of new actions, the courts will create websites with short-form complaints and plaintiff's fact sheets, allowing plaintiff lawyers to focus on marketing and finding clients.
Today there are 230 federal MDL dockets with a total of 123,125 actions pending in 50 US District Courts.
The steady use of MDLs to resolve mass harms has eclipsed the older approach of filing class actions. Certifying a nationwide class action under Federal Rule 23(b)(3) has become much more difficult because of recent US Supreme Court decisions and new federal laws. Unlike class actions, mass tort cases to not require court certification.
The Judicial Panel on Multidistrict Litigation in Washington, DC, is empowered under 28 U.S. Code § 1407 to create a new MDL, as it did recently for:
- New MDL No. 2754 to hear litigation against Bristol-Myers Squibb Company, Pfizer Inc. and McKesson Corporation charging that blood-thinner Eliquis (apixaban) causes severe and fatal bleeding.
- New MDL No. 2782 to hear Ethicon Physiomesh Flexible Composite Hernia Mesh litigation over defects in the hernia mesh, which can lead to complications when implanted in patients.
- New MDL No. 2768 to hear litigation involving the Stryker-branded LFIT Anatomic CoCR V40 femoral heads, a prosthetic hip replacement device. Plaintiffs charge the hips have excessive metal debris, separation of the head from the stem, trunnion fracture, and corrosion.
- New MDL No. 2757 to hear litigation that proton pump inhibitors Prilosec, Nexium, Protonix and Dexilant cause kidney injuries including acute interstitial nephritis, chronic kidney disease, and end-stage renal disease.
Watch these on-demand webinars about marketing mass torts:
Mass Torts Marketing: Hernia Mesh - https://goo.gl/yfqfvP
Mass Torts Update Webinar For Summer 2017 - https://goo.gl/AeH6Ed
Mass Torts Marketing: Xarelto - https://goo.gl/PWY4Li
Mass Torts Marketing: Taxotere - https://goo.gl/LeMG5D
The designated trial court will promptly create a discovery schedule and select test cases — called “bellwether trials” — to encourage settlement actively. Lawyers are obtaining high settlement values — ranging from $100,000 to $500,000 — in mass tort cases involving the Wright Conserve hip, Fluoroquinolones, and transvaginal mesh.
The best strategy is to find a mass torts case with strong liability, many plaintiffs, a financially viable defendant, high settlement values and a reasonable cost to acquire a client.
There are three optimal moments to seek mass tort clients:
- The emerging phase. This is the least expensive time to acquire clients before the litigation is consolidated. Most patients will not yet connect their prescription with an adverse event and attorneys can educate potential clients with descriptive website content. The highest consumer awareness exists when advertising about a mass tort is at its peak. Currently, this includes hernia mesh, IVC filters, Roundup, talcum powder, Taxotere, Xarelto, Abilify, proton pump inhibitors, Invokana, Onglyza, and Mirena.
- After an MDL is created. Many attorneys will seek clients at this point the litigation because it has reached critical mass, and there are often dozens of product liability lawsuits filed in federal courts nationwide. The Judicial Panel on Multidistrict Litigation will recognize that there are common factual issues which are sufficiently complex to merit centralized treatment.
- The settlement phase, when the defendant announces to its stockholders that it has set aside a settlement fund. At this point, attorneys are signing clients to settle their cases.
Marketing Tactics to Find Clients
- Strong Organic Web Presence. Marketing with a content-driven website is the best strategy to find mass tort cases with high settlement values. A strong organic web presence with a blog capitalizes on how clients search for mass tort lawyers.
- Pay for Performance Advertising. The attorney pays for a call and is not buying leads. The charge depends on how long the phone call lasts.
- Standard Television Advertising. TV ads will create the lexicon that people use to search for lawyers online. Smart lawyers will incorporate the exact wording of TV ads into their website. Bear in mind that a consumer will watch an ad 12 times before acting. A typical law firm advertising budget can start at $15,000 to $20,000 per week to test campaigns using an ad agency, which may also be hired to field the incoming calls. This approach is less efficient than web marketing because it can cost $1,500 or more to acquire a client, and it will generate many irrelevant calls.
- Buying Leads. Caveat Emptor is the watchword with this approach. Attorneys should be careful because some disreputable companies will sell a single lead to five or six different law firms.
Successful mass tort attorneys will create a 5,000-word to 50,000-word mass tort practice section on their law firm's website that responds to the way that injured claimants research for a solution to their medical problem. The practice description should be supported by regular blog posts that describe new developments in the law and medicine.
More than 1,600 cases are pending before US District Judge Kurt D. Engelhardt in the Eastern District of Louisiana in MDL 2740, charging that Sanofi-Aventis failed to warn doctors and patients about the increased risks of total, permanent hair loss caused by Taxotere (docetaxel).
Potential plaintiffs will find the sections on the site about side effects, different kinds of cancer, Taxotere key terms, hair loss, and even fashion after Taxotere hair loss. Once on the site, potential clients will visit the key section on litigation, a timeline of litigation, MDL consolidation, the growing number of cases and synopses of two lawsuits.
As the site demonstrates, the goal of marketing must be to educate clients about the side effects of the product they used. Lawyers should use clear, concise language that the general public will understand. Your marketing should be about the client — not about the firm.
Many law firms make the mistake of emphasizing a financial recovery. For example some law firms display:
- Illustrations of dollar signs.
- “You may be entitled to compensation.”
- “Our lawyers have won more than $700 million.”
- “You may be entitled to a cash award.”
When potential mass tort clients conduct research online, they are not initially looking for attorneys — they are looking for articles about:
- Symptoms and side effects.
- Type of injuries caused by the drug or device.
- FDA warnings and research.
- Medical options such as surgery, testing and monitoring.
Accordingly, an effective mass tort practice website should be more like what a patient would find, for example, on the http://www.umcvc.org/conditions-treatments/vascular-surgeryUniversity of Michigan Health System site, describing medical information and risks of an IVC filter. Only after covering this critical information should a law firm website get into patient legal rights.
The website should be regularly updated with a blog covering topics such as new medical research, and the progress of litigation.
Ready to learn more about marketing a mass torts practice? Check out the free, on-demand webinar “How To Grow A Mass Torts Practice” at https://goo.gl/dxR1KV
It goes without saying that a mass torts practice description should be on a responsive website that can be viewed on a cell phone. According to Comscore, 68% of all digital media time is spent on mobile devices as of July 2016.
There is no time like the present to get started with a mass torts practice area. After analyzing which MDL makes sense to become active in, an attorney can review the short-form complaint and other relevant documents in the court docket. The next step is to find clients, and the best approach is a content-driven website that answers the questions that patients will be asking. In time, this can create a prosperous new practice area to supplement a personal injury practice.