Looking to Expand Into Mass Torts?

So how does art imitate reality? What lessons can a small firm learn about toxic torts from “The Litigators”?

The truth is that I am David Zinc. Sure, I didn't graduate from Harvard Law and our firm does not engage in anything similar to the ambulance chasing antics of Finley & Figg, but I am an attorney who has recently come to a relatively small personal injury firm with little experience in mass torts. Said another way, we're good at what we do, but we don't “do” mass torts.

And yet, we do. Truth is, it's hard not to. With all the advertising on TV for the mass tort cases, clients and referring attorneys know what drugs are under the microscope. If your reputation as a plaintiff's firm is strong, chances are great a pharmaceutical mass tort case will roll your way sooner or later. In our firm, when that case came by, it hit my desk. So I've seen everything the attorneys from Finley & Figg did: I've flown on the private jets with the “mass torts boys,” I've heard the stories about the agent orange settlements, I've been impressed by the gravitas of the judicial panel on multidistrict litigation.

Unlike David Zinc, though, I've made it around the block. I've negotiated the settlement agreement with Big Pharma and lived to tell about it. And I have some advice for attorneys or firms wanting to dip their toes in the waters of pharmaceutical mass tort practice.

Be Selective

Do not get involved in every mass tort that comes down the pike. You can't afford to, and not all toxic torts are created equal. If you're getting referrals or cold calls for a drug that isn't one you've decided to handle, just refer it to one of the mass torts firms that deal with that particular product. They won't be hard to find. You'll miss out on the huge fees, but you will save yourself immeasurable problems.

Deciding which drugs to get involved with can be a tricky proposition. The product Finley & Figg went after in “The Litigators” had all the markings of a legitimately bad drug and yet, it turned out to be completely benign. Questions to ask in deciding if any particular mass tort is one you want to pursue include: 1) Has the FDA recalled the product or taken any additional action? 2) Are there other attorneys in your geographical area actively pursuing these cases? and 3) How strong are the warnings on the label (if any)? Answer these questions for yourself and do not be swayed by what the “mass tort boys” tell you.

Most importantly, though — and perhaps this matter was the major one leading to Finley & Figg's downfall — it is important that you speak personally with the experts who denounce the drugs. Before you sign up a single case. If you simply cannot speak with them, read their reports. The case will rise and fall on the quality of these experts, and you should independently evaluate them: 1) Did they use reasonably accepted methodology? 2) Does epidemiological data support their conclusions? 3) Can their studies be replicated by other scientists? You don't need to conduct a full-blown Daubert hearing to ask these questions and get a sense of whether the expert is a quack or the real deal. Besides, there is nothing worse than having to concede to a federal judge that you have not read the report of an expert who purports to make your case for you.

Trust No One

Do not trust the attorneys on the plaintiffs steering committee (PSC), do not trust what you read on the blogs or in the newspapers, and do not trust the judge or mediator assigned to the MDL. If you file a case, it is your case and you are responsible for it. The fact that you will pay the PSC a percentage of your fee does not mean that you can shift the burden of handling your case to them — it is just the cost of doing business. But it does not give you an excuse to shirk responsibility for your cases.

Along these lines, read the orders that come in from the MDL. All of them. There will be hundreds of them; there will be days where six will arrive in an hour. Many will not relate to you or your case. But then there will be one that will. Nobody from the PSC will call you and tell you that you have to pay attention to that one order. But you will be expected to know what it says and follow its instructions.

Similarly, attend the mass torts conferences. The American Association for Justice (AAJ) hosts regular meetings where the PSC and other knowledgeable attorneys update individual lawyers on the progress of the MDLs. These are informative meetings and the only place where you are likely to be updated about where these cases stand. Attend them. This, obviously, requires travel. But if you're not willing to log the miles and attend these conferences, you shouldn't be practicing in the mass torts space.

At the conferences, though, take all relationships with a grain of salt. Recognize that there are politics you do not understand that go along with MDLs. The attorneys on the PSC who are educating you today will have a vested interest in getting you and your client to go along with a proposed settlement down the road. They will be pressured by the judge, the defendants and their own bottom line to make sure that there are no holdouts. They are excellent attorneys, wonderful friends and very knowledgeable, but their interests are not always aligned with those of your client.

Prep Your Case

Our firm has a mantra: Work up every case as if it will go to trial. Mass tort cases should be no different. You should invest the time and money into every case to make it ready for you to try it to a jury. Consequently, you should not sign up more cases than you have time or money to prep.

Additionally, you should do this prep early. You will typically file a short-form complaint and maybe a plaintiffs fact sheet, and then be tempted to put the case in the drawer while the MDL winds its way toward a settlement. But that approach is fraught with disaster.

Even if there is a settlement, you do not know when that day will come. It is entirely possible that a mass tort case will gather dust until a federal judge orders you to appear in her courtroom for a settlement conference in a matter of days. And when that call comes, you had better be ready to answer the bell. What's worse is that all that time, while the file is sitting in your drawer, your case is getting stale. Memories of who took what drug when are fading; medical records are being destroyed; product packaging — which can be so important — is getting lost.

Handle your mass torts cases like you would any other liability case: Preserve evidence, record statements from witnesses, and take photographs. Make the file ready so that when you put it away on a shelf, it is 100% “ready to go” when you take it down again.

Conclusion

Grisham clearly doesn't think much of the mass tort industry. “The Litigators” paints the practitioners in this field as everything that supports the case for tort reform. But the truth is that mass torts are a strong way for trial lawyers to check Big Pharma's unfettered safety violations. In doing so, we can help many people. However, it is not a practice area without dangers; and like so many other dangers, they are often hidden.

*****
Matthew Doebler, of Pribanic & Pribanic in Pittsburgh, is a trial attorney who gained much of his courtroom experience as a prosecutor in New York City. This article also appeared in the New Jersey Law Journal, an ALM sibling publication of this newsletter.

The wild world of mass torts can be irresistibly enticing to plaintiffs' attorneys from small firms. With the promises of huge fees and the suggestion of a nominal amount of work on each case, mass torts seem too good to be true.

However, John Grisham's novel, “The Litigators,” tells the cautionary tale of plaintiffs' attorneys who unwittingly follow the siren's song of mass torts only to shipwreck on the rocky island of sanctions, malpractice suits and financial ruin. In “The Litigators,” the “boutique firm” of Finley & Figg deviates from its meat-and-potatoes personal injury (PI) practice to pursue a bad drug claim against one of Big Pharma's most powerful companies. The story winds through creation of multidistrict litigation (MDL), deceptive negotiations by the pharmaceutical company and shifting allegiances of the mass tort firms that purport to be on the plaintiffs' side. Attorney David Zinc goes with the partners at Finley & Figg on their journey up the river of mass tort madness, which plays out like a litigation version of “The Heart of Darkness.”

Zinc is a wide-eyed associate who is new to plaintiffs' litigation, and his intentions are as pure as the driven snow. As the protagonist, he offers an outsider's view of both the messy world of PI practice in the tort reform era and the developing field of mass torts. In fact, “The Litigators” has a happy ending only because Zinc altruistically settles a traditional injury case; were it not for the fee he earned on that PI case, Finley & Figg would have been destroyed as a result of their venture into the world of mass torts.

So how does art imitate reality? What lessons can a small firm learn about toxic torts from “The Litigators”?

The truth is that I am David Zinc. Sure, I didn't graduate from Harvard Law and our firm does not engage in anything similar to the ambulance chasing antics of Finley & Figg, but I am an attorney who has recently come to a relatively small personal injury firm with little experience in mass torts. Said another way, we're good at what we do, but we don't “do” mass torts.

And yet, we do. Truth is, it's hard not to. With all the advertising on TV for the mass tort cases, clients and referring attorneys know what drugs are under the microscope. If your reputation as a plaintiff's firm is strong, chances are great a pharmaceutical mass tort case will roll your way sooner or later. In our firm, when that case came by, it hit my desk. So I've seen everything the attorneys from Finley & Figg did: I've flown on the private jets with the “mass torts boys,” I've heard the stories about the agent orange settlements, I've been impressed by the gravitas of the judicial panel on multidistrict litigation.

Unlike David Zinc, though, I've made it around the block. I've negotiated the settlement agreement with Big Pharma and lived to tell about it. And I have some advice for attorneys or firms wanting to dip their toes in the waters of pharmaceutical mass tort practice.

Be Selective

Do not get involved in every mass tort that comes down the pike. You can't afford to, and not all toxic torts are created equal. If you're getting referrals or cold calls for a drug that isn't one you've decided to handle, just refer it to one of the mass torts firms that deal with that particular product. They won't be hard to find. You'll miss out on the huge fees, but you will save yourself immeasurable problems.

Deciding which drugs to get involved with can be a tricky proposition. The product Finley & Figg went after in “The Litigators” had all the markings of a legitimately bad drug and yet, it turned out to be completely benign. Questions to ask in deciding if any particular mass tort is one you want to pursue include: 1) Has the FDA recalled the product or taken any additional action? 2) Are there other attorneys in your geographical area actively pursuing these cases? and 3) How strong are the warnings on the label (if any)? Answer these questions for yourself and do not be swayed by what the “mass tort boys” tell you.

Most importantly, though — and perhaps this matter was the major one leading to Finley & Figg's downfall — it is important that you speak personally with the experts who denounce the drugs. Before you sign up a single case. If you simply cannot speak with them, read their reports. The case will rise and fall on the quality of these experts, and you should independently evaluate them: 1) Did they use reasonably accepted methodology? 2) Does epidemiological data support their conclusions? 3) Can their studies be replicated by other scientists? You don't need to conduct a full-blown Daubert hearing to ask these questions and get a sense of whether the expert is a quack or the real deal. Besides, there is nothing worse than having to concede to a federal judge that you have not read the report of an expert who purports to make your case for you.

Trust No One

Do not trust the attorneys on the plaintiffs steering committee (PSC), do not trust what you read on the blogs or in the newspapers, and do not trust the judge or mediator assigned to the MDL. If you file a case, it is your case and you are responsible for it. The fact that you will pay the PSC a percentage of your fee does not mean that you can shift the burden of handling your case to them — it is just the cost of doing business. But it does not give you an excuse to shirk responsibility for your cases.

Along these lines, read the orders that come in from the MDL. All of them. There will be hundreds of them; there will be days where six will arrive in an hour. Many will not relate to you or your case. But then there will be one that will. Nobody from the PSC will call you and tell you that you have to pay attention to that one order. But you will be expected to know what it says and follow its instructions.

Similarly, attend the mass torts conferences. The American Association for Justice (AAJ) hosts regular meetings where the PSC and other knowledgeable attorneys update individual lawyers on the progress of the MDLs. These are informative meetings and the only place where you are likely to be updated about where these cases stand. Attend them. This, obviously, requires travel. But if you're not willing to log the miles and attend these conferences, you shouldn't be practicing in the mass torts space.

At the conferences, though, take all relationships with a grain of salt. Recognize that there are politics you do not understand that go along with MDLs. The attorneys on the PSC who are educating you today will have a vested interest in getting you and your client to go along with a proposed settlement down the road. They will be pressured by the judge, the defendants and their own bottom line to make sure that there are no holdouts. They are excellent attorneys, wonderful friends and very knowledgeable, but their interests are not always aligned with those of your client.

Prep Your Case

Our firm has a mantra: Work up every case as if it will go to trial. Mass tort cases should be no different. You should invest the time and money into every case to make it ready for you to try it to a jury. Consequently, you should not sign up more cases than you have time or money to prep.

Additionally, you should do this prep early. You will typically file a short-form complaint and maybe a plaintiffs fact sheet, and then be tempted to put the case in the drawer while the MDL winds its way toward a settlement. But that approach is fraught with disaster.

Even if there is a settlement, you do not know when that day will come. It is entirely possible that a mass tort case will gather dust until a federal judge orders you to appear in her courtroom for a settlement conference in a matter of days. And when that call comes, you had better be ready to answer the bell. What's worse is that all that time, while the file is sitting in your drawer, your case is getting stale. Memories of who took what drug when are fading; medical records are being destroyed; product packaging — which can be so important — is getting lost.

Handle your mass torts cases like you would any other liability case: Preserve evidence, record statements from witnesses, and take photographs. Make the file ready so that when you put it away on a shelf, it is 100% “ready to go” when you take it down again.

Conclusion

Grisham clearly doesn't think much of the mass tort industry. “The Litigators” paints the practitioners in this field as everything that supports the case for tort reform. But the truth is that mass torts are a strong way for trial lawyers to check Big Pharma's unfettered safety violations. In doing so, we can help many people. However, it is not a practice area without dangers; and like so many other dangers, they are often hidden.

*****
Matthew Doebler, of Pribanic & Pribanic in Pittsburgh, is a trial attorney who gained much of his courtroom experience as a prosecutor in New York City. This article also appeared in the New Jersey Law Journal, an ALM sibling publication of this newsletter.