Last month, I participated in a panel discussion on the status of mass tort multidistrict litigations (MDL) at a meeting of the Section of Litigation of the American Bar Association (ABA) in Squaw Valley, Calif. A fortuitous snowfall of about 100 inches fell that same week, so the skiing was great. But I digress: the central topic of discussion was who is representing the plaintiff in mass actions.

Federal Judge Eldon F. Fallon, E.D. La., told of his experience managing some of the complex mass torts tied to pharmaceuticals and the challenge of weeding out meritless cases, particularly where the plaintiff may have never used the drug.

Prof. Howard M. Erichson of Fordham Law School discussed serious ethical issues that plaintiff lawyers face  in mass tort settlements. This included making aggregate settlements for an inventory of clients and entering into “all or nothing” agreements that required the lawyer to have all of their clients opt into a settlement. In either of case, the individual plaintiff might lose rights.

It’s in this same vein that I discussed the issue of keeping my clients informed about the progress of an MDL and the end game of settlement. As a plaintiff lawyer, the most acute need is to explain a proposed settlement to clients so that they could decide to opt-in or opt-out. (Since many settlements are for small sums, opting out is not a practical alternative, given the cost of a trial.)

As I consider recent settlements, many were so complex and mechanistic that I could not predict what my clients would get by way of settlement—yet, they had to sign a release as a pre-condition for entering into the settlement plan.

For example, in a recent case related to a diabetes medication, plaintiffs were awarded points for various factors, yet it was not known what a point was worth, let alone how many points one could earn. Another case related to a transvaginal mesh product had several factors to account for and a lengthy spreadsheet with fields that had to be filled-in.

Predicting the net recovery in these and several other cases have been made all the more difficult as there also have been “hidden” expenses the client has encountered in these settlements. Not only was their share of the leadership’s common time and expenses to be paid, but also sums paid to the administrators of the settlement plan and also to the companies resolving liens. (Commonly, the assessment for time is paid for by the lawyer by reducing the fee to the client, but the expenses are the responsibility of the client.)

In my view, it’s factors like this that make it extremely difficult to properly inform my clients of their options. Even in some earlier and simpler mass tort settlements, no one could say that the individual claimant got the same attention as a private client in a one-off case might receive. However in these cases, I could at least more confidently answer the inevitable client questions: “How much will I get and when will I get it?” Now, those questions are impossible to answer.

As the panel wrapped the discussion, we left a question with the audience: Have we sacrificed client sovereignty for sake of efficiency? Since the audience was largely made-up of defense counsel (as is the case with many ABA meetings), I was unable to generate much sympathy or concern, but I’d like to think that most would agree that more attention should be paid to adequate representation of the individual plaintiffs in mass torts.

This post was written by Paul D. Rheingold, founding partner of Rheingold, Giuffra, Ruffo & Plotkin LLP. Mr. Rheingold has long been active in mass tort work, including leadership and educational roles in over 20 drug and medical device mass torts, including some of the largest drug and medical device mass torts. Paul is the author of Litigating Mass Tort Cases. A cum laude graduate of Harvard Law School, Mr. Rheingold is the former national secretary of the Association of Trial Lawyers of America (now known as the American Association of Justice). Mr. Rheingold has been a faculty member at Harvard Law School, a visiting scholar at Stanford Law School and the RAND Institute, and is a member of the New York, Massachusetts, and District of Columbia Bars.

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