Canada: The Power Of Many Customized For One: Mass Torts vs. Class Actions

Last Updated: March 28 2017
Article by Valerie Lord

When a person sustains an injury or suffers damage from a product or incident, there may be several ways to seek a legal remedy – especially if other people have been similarly affected. Choosing which road to take should come after careful consideration of the advantages and disadvantages of each option. With the addition of Paul Miller and Valerie Lord here at HSH, our firm now offers mass tort litigation as an avenue clients might consider, in addition to the more familiar class action lawsuit. This article will provide both potential plaintiffs and legal professionals with a brief introduction to mass tort and class action work, and highlight what each process can offer to individuals seeking justice for a harm they have experienced.

What is "Mass Tort"?

Although many people are familiar with the term class action, "mass tort" is not yet as commonly known. The concept is rather simple. Mass tort refers to the simultaneous launching of multiple individual lawsuits, all against one common Defendant, relating to a single common triggering event.

The Triggering Event

Whether an action is launched by way of class action or mass tort, both will have a triggering event in common. These incident come in a variety of forms, from airplane crashes, to asbestos exposure, to medical device recalls (Hernia Mesh, Transvaginal Mesh, St. Jude Defibrillator, Synchromed II Pain Pump) to defective drugs (Abilify, Taxotere). Once a triggering event has been established as potentially actionable, the key differences between how a class action versus a mass tort proceed are as follows:

1. Finding Clients

  • Class Action: Representative Plaintiff – Who will be the name and the face of the class as a whole? This person must be able to fairly and adequately represent the interests of the entire class.
  • Mass Tort: Identifying clients – As mass tort actions are launched individually, there is no need to find a Representative Plaintiff. However, without the formal class action proceedings, it becomes important to gather a sufficient number of clients to ensure that once the claims are issued and served, the Defendant (which is often a corporation) is aware of the litigation pressure it now faces.

2. Statement of Claim

  • Class Action: In class actions, the claim is commenced by naming the Representative Plaintiff.
  • Mass Tort: Mass tort actions are launched on behalf of individual Plaintiffs. As such, each client in a mass tort will have a Statement of Claim in his or her name as against the Defendant(s). Although the allegations will likely be similar for all Plaintiffs, the damages claimed will be customized to each client's particular situation.

3. Certification Motion and Notice of Class Action

  • These two steps apply only to class proceedings. The lawyers for the class will bring a Motion for Certification before the Court to convince it that the lawsuit should be allowed to proceed as a class action. Once the class action has been certified by the Court, it will direct that a Notice be put out to all potential members of the class. This ensures all potential members are made aware that a class action has been commenced.

4. Opting Out

  • Being part of the class means that a Plaintiff gives up their right to file an individual lawsuit against the Defendant. If a Plaintiff is considering pursuing their action individually, such as by way of mass tort, it is very important that written confirmation of their desire to opt out be given. Those who do not opt out will be bound by the outcome of the class proceedings.

5. Settlement or Trial

  • Class Action: Whether the action is resolved by way of mutual settlement or trial, the members of the class will be bound by the settlement or decision that has been reached for the class as whole. Plaintiffs are then "categorized" based on the severity of their damages, and the settlement funds are distributed to each of the "categories". Settlements for class actions must also be approved by the Court. Individuals will have virtually no say in how much they should receive personally.
  • Mass torts: The advantage of pursuing a claim by way of a mass tort versus a class action becomes more apparent at the settlement stage. Individual Plaintiffs will have a direct say into whether they wish to accept, counter, or reject a settlement offer. They will have the power to negotiate and navigate their case the way they see fit, without being bound by decisions made on behalf of the class. If called for, clients in mass tort litigation can have the option to proceed to trial with their case, and will benefit from having direct involvement, which members of a class action may not be privy to. Mass tort actions recognize that sometimes one size does not fit all.

Whether a claim is pursued by way of class action or mass tort, Paul Miller and his team at HSH are happy to provide a free consultation, and if a case is to proceed, often do not require any upfront monetary retainer. This offers access to justice to clients who may not have the financial resources to support an individual lawsuit that can often take many years to negotiate and settle. Mass tort actions provide the benefit of sharing important resources to tackle difficult issues, such as liability, and results tailored to each claimant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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