Step Aside, Class Actions: Mass Torts Are Here

Known by corporate America as a haven for product liability class actions, Canada is experiencing a rise in a new litigation trend — mass torts. An alternative to product liability class actions, mass torts pose unique challenges for defence lawyers who must grapple with competing strategic considerations and emerging strategic opportunities.

Below are some key facts about mass torts, as well as some pros and cons for both defendants and plaintiffs.

1. Mass Torts Model. Unlike a class action, which involves filing one claim for a group of people, a mass tort involves numerous individual claims concerning the same product (or group of related products). Plaintiffs may also commence a class action and later opt to discontinue the class action in favour of an “inventory” settlement on behalf of a large number of individual plaintiffs.

2. Product Liability Claims. Utilized mostly for claims relating to pharmaceutical medicines and medical devices, mass torts typically centre on alleged injuries arising from a single product. They may also include allegations of negligent design or manufacture, or failure to warn involving a family of related products with allegedly similar characteristics. Each case is typically commenced in the plaintiff’s province of residence.

3. Disadvantages for Plaintiffs. Plaintiffs’ counsel may prefer to commence a mass tort in order to ensure a seat at the settlement table and avoid the potential for a carriage fight that may come with a class action. However, mass torts also come with a notable disadvantage — complexity. The sheer volume of administrative tasks such as client intake, record collection and file management can lead to issues in quality control.

4. Advantages for Defendants. One important advantage for defence counsel is the individualized nature of the mass torts model because it generally grants them access and visibility into the plaintiffs’ counsel records that may not be available in a Canadian class action. This allows for a broader view of the liability and damages issues in each individual case.

5. Challenges for Defendants. Perhaps the greatest challenge for defendants is the absence of rules similar to the U.S. multidistrict litigation system. This lack of processes and rules in Canada can introduce an element of unpredictability when managing mass torts across the various provinces.

Have more than five minutes? Contact Robin Linley or any member of our Class Actions group for additional information on this topic. You may also read Robin’s detailed article in DRI’s For the Defense magazine.