A growing number of plaintiff’s personal injury attorneys are starting a mass torts practice area, taking advantage of the federal multidistrict litigation (“MDL”) system that efficiently consolidates the cases of individual plaintiffs against major corporate defendants.
Ordinarily, a personal injury practice consists of one-off, single-event matters. In contrast, a mass tort practice offers economies of scale, where an attorney can represent numerous plaintiffs who have been injured or killed by a the same drug or medical device. Based on conservative estimates, two to four million people per year are injured in mass tort cases.
Once the federal courts form an MDL, a plaintiff’s steering committee is appointed to run the lawsuit, take discovery and make decisions on behalf of all clients. To facilitate the filing of new actions, the courts will create websites with short-form complaints and plaintiff’s fact sheets, allowing plaintiff lawyers to focus on marketing and finding clients.
Today there are 247 federal MDL dockets with a total of 135,000 actions pending. Multidistrict litigation now comprises 36 percent of the entire federal civil caseload — up from 16 percent in 2002 — demonstrating the success of the MDL approach.
The steady use of MDLs to resolve mass harms has eclipsed the older approach of filing class actions. Certifying a nationwide class action under Federal Rule 23(b)(3) has become much more difficult because of recent US Supreme Court decisions and new federal laws. Unlike class actions, mass tort cases to not require court approval.
- The anti-psychotic medication Abilify made by Bristol-Myers Squibb
- Roundup herbicide made by Monsanto
- Talcum powder made by Johnson & Johnson
- Chemotherapy drug Taxotere made by Sanofi-Aventis
See below for a chart of active MDL litigation.
The designated trial court will promptly create a discovery schedule and select test cases — called “bellwether trials” — to encourage settlement actively. Lawyers are obtaining high settlement values — ranging from $100,000 to $500,000 — in mass tort areas involving IVC filters, Zofran, Xarelto and Transvaginal mesh.
Marketing Tactics to Find Clients
Marketing with a content-driven website is the best strategy to find mass tort cases with high settlement values. A strong organic web presence with a blog capitalizes on how clients search for mass tort lawyers.
There are other, more expensive approaches to finding mass tort clients. One approach is advertising on network and cable TV. A typical law firm advertising budget can start at $15,000 to $20,000 per week to test campaigns using an ad agency, which may also be hired to field the incoming calls. A potential plaintiff will watch a commercial as many as 12 times before acting. This approach is less efficient than web marketing, because it can cost $1,500 or more to acquire a client, and it will generate many irrelevant calls.
Attorneys can also buy leads from lead-generation companies. However attorneys should be suspicious about this approach, because some lead-gen companies will sell a single lead to five or six different law firms. At LawLytics, we help plaintiffs’ attorneys predictably grow their businesses without wasting time or money, so buying a piece of a lead and a diminished chance of getting the case seems like a frustrating and inefficient way to operate.
Generating clients online
Successful mass tort attorneys will create a 5,000-50,000 word mass tort practice section on their law firm’s website that responds to the way that injured claimants research for a solution to their medical problem. The practice description should be supported with regular blog posts that describe new developments in law and medicine.
A good illustration involves IVC filters, which are small cage-like devices inserted into the inferior vena cava blood vessel, leading to the heart. They are designed to catch blood clots, but evidence shows that they actually cause them. The devices can tilt, break apart, migrate and puncture other organs. Some 1,800 cases are consolidated in federal trial MDLs in Arizona and Indiana.
The goal of marketing must be to educate clients about the side effects of the product they used. Lawyers should use clear, concise language that the general public will understand. Your marketing should be about the client — not about the firm.
Many law firms make the mistake of emphasizing a financial recovery. For example some law firms display:
- Illustrations of dollar signs
- “You may be entitled to compensation”
- “Our lawyers have won more than $700 million”
- “You may be entitled to a cash award”
When patients with an IVC filter conduct research online, they are not initially looking for attorneys — they are looking for articles about:
- Symptoms and side effects
- Type of injuries caused by the device
- FDA warnings and research
- Medical options such as the removal procedure and testing or monitoring
Accordingly, an effective mass tort practice website should be more like what a patient would find, for example, on the University of Michigan Health System site, describing medical information and risks of an IVC filter. Only after covering this critical information should a law firm website get into patient legal rights.
The website should be regularly updated with a blog covering topics such as new medical research, progress of litigation, and in this case — videos from NBC News investigating C.R. Bard IVC filters in 2015.
Ready to learn more about marketing a mass torts practice? Check out our free, on-demand webinar “How To Grow A Mass Torts Practice.”
It goes without saying that a mass torts practice description should be on a website that can be viewed on a cell phone. According to Comscore, 68% of all digital media time is spent on mobile devices as of July 2016.
There is no time like the present to get started with a mass torts practice area. After analyzing which MDL makes sense to become active in, an attorney can review the short-form complaint and other relevant documents in the court docket. The next step is to find clients, and the best approach is a content-driven website that answers the questions that patients will be asking. In time, this can create a prosperous new practice area to supplement a personal injury practice.
|Taxotere, 89 cases to date||MDL No. 2740, Eastern District of
Louisiana, New Orleans, created 10/04/16
|Chemotherapy drug made by Sanofi-Aventis||Permanent hair loss (alopecia)|
|Talcum Powder, 1,200 cases in NJ, IL and St. Louis||MDL No. 2738, District of NJ in Trenton, created 10/04/16 – 10 cases so far
Earlier this year, $72 million & $55 million verdicts returned in St. Louis
|Baby Powder & Shower to Shower, made by Johnson & Johnson||Ovarian Cancer|
|Abilify, 22 cases in federal court||MDL 2734, Northern District of Florida, Pensacola, created 10/04/16||Drug for schizophrenia, bipolar disorder, depression, and Tourette syndrome, made by
Bristol-Myers Squibb Company, Otsuka Pharmaceutical Co
|Causes compulsive gambling, sex and shopping behaviors|
|Bair Hugger surgical blanket, 700 cases in MDL||MDL 2666, District of Minnesota in Minneapolis, created 12/11/2015||Surgical warming product made by 3M||Blower in blanket sucks up bacteria on surgery floor and causes deep joint infections in knee and hip operations|
|IVC Filter, 1,800 cases in MDL||MDL 2570 for Cook Medical, Inc. in Southern District of Indiana in Indianapolis, created 10/15/14.
Also MDL 2641 for Bard IVC in District of Arizona in Phoenix, created 08/17/15.
Cordis IVC Filter Litigation is centered in the California state courts.
|Blood clot filter placed in inferior vena cava vein leading into the lungs.||Causes blood clots. The device tilts, migrates and break apart, causing internal punctures|
|Transvaginal mesh (TVM), 80,000 lawsuits in 8 MDLS||Caldera TVM Class Action In California
Boston Scientific TVM Litigation MDL 2362, Bard TVM Litigation MDL 2187, Ethicon (J&J) Transvaginal Mesh Litigation MDL 2327, Neomedic TVM Litigation MDL 2511, Cook TVM Litigation MDL 2440, Coloplast TVM Litigation MDL 2387, American Medical Systems TVM Litigation, MDL 2325
|8 manufacturers: women who have a hysterectomy will have mesh implanted to keep the organs from sagging or to prevent incontinence||Mesh erodes, causes pain and incontinence. Must be removed surgically.|
|Xarelto, 11,000 cases in federal MDL||MDL 2592 in Eastern
District of Louisiana
In New Orleans, created 06/02/16. Also 700 cases consolidated in Philadelphia Court of Common Pleas
|Blood thinner to prevent blood clots. Made by Bayer and Janssen||Causes uncontrollable internal bleeding and strokes|
If you would like help creating and executing a content plan for your mass torts practice, our content department has expertise and can help do it for you. And if you’re a LawLytics Member and want to write the content yourself, we can help you figure out how to organize it on your LawLytics-powered law firm website.