Mass Torts and Class Actions

618.659.0588
107 Southpointe Dr.
Edwardsville, IL 62025

314.421.4430
500 N. Broadway, Ste. 1550
St. Louis, MO 63102

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risk managementIt's becoming more and more commonplace. Lawsuits are being filed on behalf of hundreds of known plaintiffs or by one representative plaintiff on behalf of hundreds or thousands of unknown plaintiffs. On the opposite side of the ledger are single plaintiffs who file lawsuits against scores of defendants, often in toxic tort cases. Whether it's simply a lot of parties in a law suit or if it's a true class action, dealing with these matters takes special expertise. In mass tort cases, something as commonplace as arranging a deposition can become a daunting task. Arranging a date on the calendar of fifty lawyers in an exercise in futility. Hotel ballrooms become the locations of such affairs and arranging for the sound system is as important as arranging for the court reporter. Coordinating among defendants, including choosing lead counsel to direct the others is usually required. Knowing when your client needs to take the lead or wait in the background can make all the difference in keep down expense and a positive outcome for your client.

Class actions have their own set of issues. Often the matter is won or lost at the certification stage. If you can keep the matter from being certifies it is possible that the individual damages will be too small for a plaintiff to move forward with or a plaintiff's attorney to bother with. Early investigation with your client and discovery with the representative plaintiff are necessary to obtain the information you will need to fight certification. Once the cases are certified as a class action a whole list of new requirements comes into play for the protection of the class.

Our firm was involved in one of the leading cases on avoiding certification of class actions in Missouri. In Sherry Smith v. Missouri Highway and Transportation Commission, our client had already had the trial judge certify a class action involving over one hundred accidents that occurred on a small stretch of interstate highway allegedly due to pavement that was excessively slick when wet. We were asked to get involved and see if we could not have the certification set aside based on the argument that the issues that were not common amongst the cases overwhelmed the common issues. Even though we were confronted with an abuse of discretion standard to overturn the trial judge's certification, we were successful in front of the Court of Appeals in getting the certification overturned. This appears to be one of the few reported cases in the country where that occurred at this early point in the proceedings. In the end none of the additional cases was filed against our client.

When a case is certified as a class action there are new issues about notifying the class and who is responsible for carrying out that notice and paying for the cost that have to be addressed. Any settlement requires that the individual class members be able to opt out and the court has to be involved in determining whether the settlement is in the best interests of the class and how payments, including attorney's fees, will be handled. A few years ago Missouri was in the minority of jurisdictions that held that violations of the Telephone Consumer Protection Act (TCPA) could be covered by insurance. The law had already been determined that such cases were uniquely suited to class action certification. We were able to get the cases settled and worked through the process with the court for carrying out the settlement. If you need the expertise, our firm has it.