An Argument for Scrutiny and Vetting of Mass Tort Litigation

The development of technology and media channels the support law firms connecting with potential plaintiffs has made it easier than ever to launch mass torts. In combination with the growing availability of litigation funding, this has created an environment that one industry commentator fears is encouraging ‘questionable claims’ and burying defendant companies under massive settlements.

In an op-ed for Bloomberg Law, Philip Goldberg, managing partner of Shook Hardy & Bacon, argues that the tremendous volume of these mass tort claims is creating an atmosphere where courts are more likely to give the benefit of the doubt to these claims, rather than diligently assessing their merits. Simultaneously, the large sums of outside investment through third-party legal funding is also driving up the value of settlements, as the emphasis for funders and law firms is on maximizing the financial return.

Goldberg also highlights that this litigation is becoming increasingly dominated by multi-district litigation (MDL), with the number of MDLs rising from 73 active cases in 2013 to over 300 at present, with mass torts comprising 90% of those active cases. Goldberg argues that companies turning to bankruptcy procedures, such as in the J&J talcum powder litigation that LFJ covered, is not being done for cynical reasons, but instead as a last resort to resolve these claims. It should be noted that the Appeals Court denied J&J’s attempt to use bankruptcy protections in this case.

In closing, Goldberg argues that MDL judges must take a thorough approach to this wave of mass tort litigation, and diligently assess the merits of each of these claims as a starting point, to ensure that the system is not abused.