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Keep from Drowning in the Sea of Mass Torts!
“Enriched and emboldened after successful fights against asbestos and tobacco companies, some of the nation's top plaintiffs' lawyers have trained their sights on drug makers, claiming that many giant pharmaceutical companies have hidden the dangers of medicines the lawyers say have harmed thousands of people.” Thus began an article on the front page of the May 18, 2003 the Sunday New York Times, entitled, “Trial Lawyers Are Now Focusing on Lawsuits Against Drug Makers,” which reported on a significant increase in the number of lawsuits against pharmaceutical companies over the last several years. (See Alex Berenson, “Trial Lawyers Are Now Focusing on Lawsuits Against Drug Makers,” N.Y. Times, May 18, 2003, at 1.) In fact, during the last 3 years alone, ten of the 19 products liability litigations transferred to the Judicial Panel on Multidistrict Litigation have involved pharmaceuticals or medical devices. (See Web site of the Judicial Panel on Multidistrict Litigation at www.jpml.uscourts.gov.)
In order to avoid drowning in the sea of mass tort litigation, drug and medical device companies must aggressively and “offensively” defend these actions — and do so as soon as the mass tort litigation emerges. Critical to stemming the mass tort tide is an understanding of the factors that drive the filing of these actions against pharmaceutical and medical device companies: 1) the ease with which controversial issues relating to drugs and medical devices can be recognized; and 2) complicated causation issues. Armed with that understanding, the single most important pre-trial goal for any defendant must be the early exposure of frivolous claims based on tenuous causation and junk science. Of course, the immediate benefit of this strategy is obvious: the dismissal of the individual case at hand. The benefits of early exposure, however, are much more far-reaching in that it can act as a deterrent to the filing of new cases, as well as a catalyst for the dismissal of existing actions based on similar unsupported theories. Early exposure of frivolous claims is the key to stopping the growth of a particular mass tort litigation, as well as to causing its ultimate demise.
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