January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.
Many people do not realize that mass actions are very different from class actions. While there are similarities—a large group of people injured by the same defendant—there are also enormous differences.
In a class action, there is one plaintiff who represents multiple people called “the class.” The injuries suffered by each member of the class must be so similar that one plaintiff can adequately represent all of the injured people. On the other hand, in mass actions (also known as mass torts), each injured person’s case is handled individually because their injuries are too different, i.e., the severity, the length of time, and the economic harm (such as lost wages or future medical expenses).
The majority of mass torts are cases where a plaintiff has suffered injuries caused by a dangerous drug or medical device, in these cases each plaintiff’s injury is unique to that plaintiff. However, there are still common issues that apply to all plaintiffs injured: the general side effects of the drug, the way the manufacturer developed it, whether the manufacturer failed to warn, etc. Mass actions are often consolidated in one court for pre-trial proceedings.
For settlement purposes, although a mass tort plaintiff is treated as an individual, there is often an aggregate settlement that arranges plaintiffs in a group depending on individual factors (age, injury, future income). In all cases where a group settlement has been negotiated, the firm must obtain each plaintiff’s permission to settle on his or her behalf because of the individual nature of the case. In contrast, if it is a class action there is no requirement that each member of the class approve a settlement because only one plaintiff is representing an entire group of people (“the class”). The individual plaintiff can accept the settlement on the group’s behalf. In a class action the only way to be sure that you have your own day in court is to pursue a lawsuit on an individual basis (this is known as “opting out”). Cases where plaintiffs have been injured by a dangerous drug or defective product are rarely—if ever—resolved through a class action.
It is important for everyone, including current and prospective clients, to understand the difference between class actions and mass actions because a mass action has drastically different requirements and procedures. The mass action is much more daunting because, for example, a plaintiff will have to respond to individual discovery requests. Just as mass torts treat each plaintiff individually, so does FNJ. FNJ will helpanyone injured by a dangerous drug or medical deviceon an individual basis.