28 April 2024

In Unison Or In Harmony: Choosing Between A Class Action Or Mass Tort Litigation After An Airplane Accident?

Howie, Sacks & Henry LLP


Howie, Sacks & Henry LLP (HSH) was formed in 2000 by three lawyers who envisioned a firm that provided exceptional legal services to injury victims in a clear, compassionate, and caring way. To us, HSH represents not just our firm name but also our mission: Hope Starts Here.
Many legal terms never really transcend the confines of a courtroom. Voir dire, for example, is a well-known part of proceedings at trial, yet many people would probably stare blankly if...
Canada Litigation, Mediation & Arbitration
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Many legal terms never really transcend the confines of a courtroom. Voir dire, for example, is a well-known part of proceedings at trial, yet many people would probably stare blankly if it was mentioned outside legal circles.

Not so with class actions. Even reading these words now might prompt you to think about advertisements advising potential class participants of an action that are routinely posted in newspapers. Or, perhaps, your mind might turn to the dramatic scenes in the blockbuster film Erin Brockovich in which the namesake protagonist visits members of a community suffering the ill effects of a poisoned water supply and convinces them to join together to fight this injustice.

While class actions generally have a high degree of familiarity among the public, "mass torts" have yet to garner anywhere close to the same level of awareness. Yet, this term is one you may hear from a personal injury lawyer when discussing legal options after you've suffered a loss related to an air travel accident.

In this blog post I outline the differences between class actions and mass torts and explain why an aviation lawyer may recommend one form of litigation over another.

What are class actions?

A class action is a legal procedure or "vehicle" which allows one plaintiff to advance a lawsuit on behalf of class members against one or more defendants.

A class action is a singular action certified by a court that, if successful, can provide compensation to all class members. A monetary award by a court or court-approved settlement negotiated on behalf of the class is shared among members. Depending on the type of injuries and losses suffered, class members can obtain various levels of compensation.

A class action generally requires one plaintiff to become a "representative plaintiff" for the purpose of bringing the action. The representative plaintiff must undertake to act in the best interest of the class members. Once an action is certified, class members are automatically included unless they opt out and choose to launch an individual tort action. If a class member does not opt out of the class by a date specified by the court, they are generally bound by the result of the class action.

If multiple proposed class actions concerning similar losses are initiated, courts may rule on which action and class counsel should be selected to represent the class. Often, class counsel will come to a consortium agreement on their own to avoid the unnecessary costs and delayed associated with "carriage" motions.

What are mass torts?

If a person suffers harm as a result of the actions or inaction of another person, institution or other entity, they may bring about an individual tort claim for their damages. A "mass tort" is an alternative to a class action whereby an individual retains independent control over their claim while benefiting from the power and efficiencies that come from proceeding with a number of other individual tort actions against the same defendant(s), at the same time.

The concept of litigating and negotiating settlements for multiple individual claims was first adopted widely in the United States. The origins of "mass tort litigation" can be traced back to 1960s in the US, when thousands of individual anti-trust and asbestos lawsuits were filed across various state courts. The claims become unmanageable, leading the U.S. to create a federal management model called "multidistrict litigation" (otherwise known as "MDL") to manage the cases efficiently towards global resolutions.

In Canada, mass tort litigation has gained popularity in the past two decades. Unlike the MDL system in the US, Canada has generally created ad hoc procedures to handle these groups of claims, since there is no similar federal MDL statute, and the provincial class action statues do not apply. As a result, mass tort litigators in Canada typically leverage and utilize the provincial Rules of Civil Procedure to litigate their claims.

Why would an airplane accident lawyer advise choosing one type of procedure over another?

Howie, Sacks, & Henry LLP represents clients in both class action cases and in mass torts. Each of these legal procedures provides certain advantages for plaintiffs, and choosing which to pursue frequently comes down to the unique circumstances of the case.

Class action litigation can be beneficial when multiple accident victims experienced very similar harm and would likely receive comparable court awards or settlements if their cases were pursued individually.

Class actions are also frequently the legal vehicle of choice when the amount of compensation each class member expects to claim is small enough that individual tort actions could prove cost prohibitive – particularly if the defendant(s) are large, well-funded, and could adopt a divide-and-conquer approach to draw out proceedings. This strategy could severely limit recovery if an individual was required to cover a portion of court costs out of their award or settlement. Think of participating in a class action as being like a minnow choosing to swim with a school of other to avoid the risk of becoming the singular target of a big fish.

Finally, since each province has its own unique statutes, the certifiability of a class action may depend on if and where the matter can be filed, as some provinces have been shown to be more "plaintiff friendly" with respect to the test for certification than others.

As my colleague Paul Miller and I have noted in a previous blog post, mass tort procedures are often preferable in situations where "one size does not fit all." While class actions can create "groups" of class members to account for some of the potential range of damages among the class, in some cases the differences are too intricate for the class action model to work.

Moreover, unlike a class action which assigns a representative plaintiff and counsel to serve on behalf of the entire class and commits all members of a class to be bound by a settlement or decision in court, mass tort arrangements permit individual plaintiffs to discuss their unique experiences and injuries during negotiations in which they actively participate, to retain their own choice of counsel, and to have more flexibility in deciding whether to accept any proposed settlement structure or to pursue their own action further.

Beyond weighing the advantages of choosing either type of procedure with a prospective client, a knowledgeable and experienced aviation accident lawyer will also explain why the defendant(s) may have certain advantages if either type of litigation is pursued.

How will I know which option is right for me?

The aftermath of an airplane accident can be chaotic. Passengers may be in shock, contending with physical and/or psychological injuries, and figuring out how to manage a great upheaval in their lives. They will also be faced with sifting through information about the accident from the news media, the airline, their insurer, and potentially other passengers and their lawyers.

If you or a loved one finds yourself in this situation, remember that it is your right (and in your interest) to seek independent legal advice before deciding whether to accept compensation offered by an airline, to launch or join a class action, or to pursue an individual claim.

As a knowledgeable and skilled personal injury lawyer who has not only represented airplane accident victims in legal proceedings, but who experienced a traumatic airplane accident herself, I understand and empathize with what you may be feeling. I would be pleased to speak with you as part of a free, no obligation initial consultation. I will listen to you tell your story, explain your rights, and outline your various options – including whether a class action or mass tort proceeding may be advisable.

At a moment in your life when the future may appear greatly uncertain, the team at Howie, Sacks & Henry LLP will work to show you that Hope Starts Here. Through compassionate and attentive care, and skillful advocacy, we've helped many people just like you who have been harmed by another's negligence.

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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