DANGEROUS DRUGS & DEVICES

MASS TORT and DANGEROUS DRUGS & DEVICES

It’s a typical day for one of our clients at the Clauson Law Firm. Before we met her, a typical day went like this: She wakes up in the morning, and her new hip implant aches, all the way down to the bone. The pain screams and yells, over and over. Or she is growing increasingly worried about that Talcum Powder she’s been using for years. One of her friends even mentioned something about asbestos. Or that surgical mesh they used to repair her hernia—it just doesn’t feel right, like it’s pulling away, or falling apart. She tells herself, it’s just one of those days. But what if something’s really wrong, and she has become the victim of a defective product? She picks up the phone, and calls the Clauson Law Firm for help. Help. That’s what we do. As Americans, we are constantly trying new pharmaceuticals, new products, or new devices to make our lives easier and more manageable.

Most of those products, those drugs and devices, work just fine. The key is knowing what to do when they don’t work just fine. The Clauson Law Firm would like to welcome you to the Mass Tort/Dangerous Drugs & Devices page. Here, we will explain each of these terms, and the all-important relationship between them. As you read the examples and explanations, you can click the links for more information about two such “dangerous drugs and devices,” Talcum Powder and hernia mesh. And finally, know that the Clauson Law Firm is here for you. Reach out to us if you’re one of the thousands of Americans every year whose lives are affected by these products. We’d love to hear from you.

You can contact the Clauson Law Firm toll-free at 833-680-0177, or e-mail us at [email protected].

WHAT IS MASS TORT?

The best way to understand a legal term of art like “mass tort” is to treat it like a fortune cookie—break it apart and see what’s inside. Starting with the second term first, “tort” means a “wrong” act that a person commits. A “tort” is best understood by its counterpart, a crime. Both a tort and a crime are “wrong” acts that are punished, but there are two major differences.

• TORT V. CRIME: First, a “tort” is a wrong committed against a person or property.A“crime,” in contrast, is a wrong committed against society as a whole.
• MONEY, MONEY: The other major difference is, a “tort” is usually remedied by the payment of money, while a “crime” is usually (but not always) remedied by a punishment against the perpetrator. Punishment for a crime can, but doesn’t always, involve jail or prison.

• WHAT KINDS OF ACTIONS ARE TORTS? Some examples of torts are: NEGLIGENCE, WRONGFUL DEATH, PRODUCT LIABILITY, FRAUD, FALSE IMPRISONMENT, DEFAMATION, and TRESPASS.Note how each offense is committed against a person or property, and is often compensated by the payment of money.Now that you know what a “tort” is, what is a “mass” tort? Simply put, “mass tort” has two meanings.
• MASS TORT = WRONG AGAINST THE MANY, NOT THE ONE: First, a “mass” tort is a wrong committed against “the masses,” meaning a significant number of people.In that sense, a “mass tort” is an action.A “mass tort” is also a process, as a shorthand term for the kind of lawsuit that takes place. In a “mass tort” lawsuit, the “mass” is the number of plaintiffs seeking compensation from one or a few defendants.
• MASS TORTS INVOLVE - WHAT THINGS? Often, mass torts revolve around products intended for human use, such as the earliest mass torts about asbestos and tobacco.More recently, mass torts arise from pharmaceuticals, medical devices and chemicals, but also include products like earplugs, car airbags and Talcum Powder.
• CLASS ACTION V. MASS TORT: You’ve probably seen or heard of a “class action” lawsuit, which also has a number of plaintiffs suing at the same time. So what’s the difference?One major difference is, class action plaintiffs are grouped by their similar injuries, being members of the same group (hence, “class”) that suffered a similar type of injury. One plaintiff, or a few, are “class representatives” and stand for an entire block of plaintiffs on the left of the “v.”In a “mass tort,” plaintiffs are considered individuals who have suffered injury—not necessarily the same injury—from their one-on-one interaction with the defendant. “Mass tort” plaintiffs are grouped together by their sheer number rather than their membership in any “class.”A “mass tort” aims for convenience and efficiency, to try as many claims at once against the same defendant. If you have ever seen “Erin Brockovich,” with Julia Roberts, or “A Civil Action,” with John Travolta, you have seen a mass tort case.A “mass tort” aims for convenience and efficiency, to try as many claims at once against the same defendant. If you have ever seen “Erin Brockovich,” with Julia Roberts, or “A Civil Action,” with John Travolta, you have seen a mass tort case.

MASS TORT, BY THE NUMBERS:

• 1979-80: The first cases are filed in federal court against Dow, Monsanto and other manufacturers of the chemical defoliant called Agent Orange, which was used in Vietnam from 1962-1972. Agent Orange is thought to be the first mass tort case in the United States.
• 1984: The Agent Orange litigation, which saw numerous federal cases consolidated into a single MDL (multi-district litigation), is settled for approximately $180 million. There were an estimated 10 million plaintiffs in the litigation.
• 1960s: A number of workers win worker’s compensation claims against Johns-Manville for asbestos-related claims.
• 1973: The first U.S. worker to win an asbestos lawsuit against a manufacturer, in Borel v. Fibreboard. The Borel case marks the beginning of the longest-running mass tort—asbestos litigation—in U.S. history.
• 1970s-2000s: An estimated 730,000 U.S. citizens filed asbestos-related lawsuits in the three decades after Borel, with more than $70 billion paid out for those lawsuits.
• 123,000+: Estimated number of MDL lawsuits currently pending in federal court.
• 50: Estimated number of U.S. district courts with a pending MDL (more than half of U.S. total).

What Law Governs Mass Torts?

“Mass tort” is considered to be part of personal injury law. This means that “mass tort” is primarily concerned with the law of negligence.

Okay. So what is negligence?

Negligence has four basic components: duty, breach, causation (proximate and in fact) and damages. American law schools take an entire semester to review this complex concept—there’s a lot of pieces there—but let’s talk about the basics.

1. Duty: Someone or something owes a duty to you, to act in a particular way.
2. Breach: That person/entity failed to uphold that duty.
3. Causation : (proximate AND in fact): That breach was both a) close enough in time and distance to the harm to eliminate later in time, more direct causes, AND b) the injury would not have happened without that breach.
4. Damages: Measurable physical or economic damage results.

**ALL FOUR elements must be present for a negligence claim.**

Here’s a simple example, just to show you how the four elements of negligence work. Actual cases are MUCH more complicated.An aircraft mechanic, whose job includes tightening the bolts on the cargo door before the plane takes off, doesn’t tighten the bolts this time. When the plane gets into the air, the bolts fall out and the cargo door flies open, injuring a passenger sitting right next to the door.

The mechanic has a DUTY to ensure the aircraft’s safe operation, which includes tightening the cargo door bolts. The mechanic didn’t tighten the bolts, so he BREACHED his duty. The breach of leaving loose bolts happened closely enough to the harm (the flying door) so nothing interfered with the chain of events or was a more direct cause, AND the door would not have flown open without loose bolts. The DAMAGES are the passenger’s injury.

Makes sense. What else do I need to know?

Here’s an equation: Mass Tort = Product Liability

Often, mass tort involves a type of negligence law called Product Liability. The best-known mass tort cases, whether on tobacco, asbestos, Agent Orange or—more recently—pharmaceuticals and medical devices—center on a manufacturer placing a defective product into the “stream of commerce.” Product liability is a very full branch of law, and has too many moving parts to get into major detail here. An attorney can explain what kinds of facts make for a strong, or weak, product liability claim.

All right. What can I expect if I am part of a mass tort lawsuit?

Have the proper expectations. Mass Tort lawsuits can take years to resolve. Here’s why:Steps in a mass tort lawsuit

• Identify potential claimants— the people who believe they have been injured by a product. This is usually done through advertising on radio, television and other media, such as the Internet. Potential claimants are often given a phone number to call, or a website to visit, where operators take down their details and pass them along to attorneys.
• Attorneys acquire medical records for the claimants who seem to have stronger claims, reviewing the records for commonalities of injury, the product involved, and anything else the records show in common.
• Court filing. Attorneys consolidate plaintiffs with similar claims into individual cases, for the court’s convenience and the strength of the overall claim.
• Bellwether trials. A few of the consolidated cases are tried first, to gauge how judges and juries will react to the claim. These “bellwether” cases give the attorneys a test run, so to speak, and help establish expectations and suggest adjustments.
• Settlement offers. Typically, the defendant company will offer a settlement that the plaintiffs may then accept, or proceed to a full-blown trial. Settlement is often a lengthy process by itself, with a fair amount of negotiation.

Is the statute of limitations still an issue for mass tort claims?

Yes. Each state has a statute of limitations— a deadline, really—for filing a product liability lawsuit, ranging from one year to as many as 10 or 11 years. Most states have a two-year limit from the date the injury occurred; a chart appears below. There are also “statutes of repose” that set time limits beyond the ordinary statute of limitations.

1. 1 year: KY, LA.
2. 3 years: AR, DC, MD, MA, MT, NH, NM, NY, RI, SC, SD, VT, WI
3. 4+ years: FL, ME (6), MN, MO (5), NE, NV, NC (6, from the purchase date), ND (10-11), TN, WY
4. All other states: 2 years.

DANGEROUS DRUGS & DEVICES: WHAT THEY ARE, AND WHAT THEY HAVE TO DO WITH MASS TORT

Mass tort is a general term, describing a type of multi-plaintiff lawsuit. In contrast, dangerous drugs and devices are specific: these are particular products that fuel, or drive, mass tort lawsuits. So, if mass tort is like an automobile engine, with a lot of complicated pieces working together, then dangerous drugs and devices are like the car’s fuel. They make the engine go.

Important Facts &Dates in the History of Dangerous Drugs and Devices

What is a dangerous drug?

Although states generally have their own definitions, a “dangerous drug or device” is generally understood to be one where proper use requires a doctor’s advice and supervision. Implicit in the definition is the harm that can result from using a drug or device, even when used according to instructions.

THE FOOD AND DRUG ADMINISTRATION: A TIMELINE

History is littered with examples of pharmaceuticals and medical devices that injured tens of thousands of American consumers, or more. From the Dalkon Shield, a device alternative to birth control pills, in the early 1970s to more contemporary products like hernia mesh and Talcum Powder—which are discussed in separate case studies on this site—American consumers have faced risks in using and taking the very products intended to help them. The Food and Drug Administration (FDA) is the federal agency that oversees and regulatespharmaceuticals and medical devices.The following is a brief history of drug and device regulation in America:

• 1820: Eleven doctors meet to form the U.S. Pharmacopeia, the first centralized list of drugs in the country.
• 1862: President Lincoln forms the Bureau of Chemistry, which is the predecessor to the Food and Drug Administration (officially formed in 1930).
• 1906: President Roosevelt—the first one—signs into law the Food and Drugs Act, which focused on proper product labeling.
• 1912: Congress passes the Sherley Amendment, which prohibits false or misleading claims about a drug’s efficacy. One such product of the day was Mrs. Winslow’s Soothing Syrup, for teething and colicky babies, which was laced with morphine and allegedly killed many infants.
• 1938: FDA oversight is extended to therapeutic devices.
• 1962: Concerns arise in the U.S. about the drug thalidomide, a sleeping medication, after the drug is linked to birth defects in western Europe.
• 1971: Saccharin, an artificial sweetener, is removed from the Generally Recognized as Safe (GRAS) list, pending further study.
• 2019-present: A number of popular prescription drugs and medical devices are the subject of current mass tort lawsuits, including the following cases active as of 2019:

Dangerous Drugs & Devices

1. Talcum Powder
2. (Surgical) hernia mesh
3. Opioids, e.g., oxycodone
4. Proton pump inhibitors (PPI), e.g., Nexium
5. Roundup weed killer
6. 3M earplugs
7. Xarelto (blood thinner)
8. Risperdal (antipsychotic, used primarily for schizophrenia or bipolar disorder)
9. Zantac (anti-heartburn)
10. Juul e-cigarette products
11. Inferior vena cava filters (IVC)

Some products or devices thought to be dangerous to consumers are subject to recall. In 2019, for example, the U.S. Consumer Product Safety Commission published a list of recalled products. The FDA published its own 2019 list of recalled medical devices.

If You’ve Been Harmed By a Drug or Medical Device, Call Us

If you think you have suffered harm from a drug or medical device, don’t wait! You should contact Clauson Lawright away, before the statute of limitations tolls (expires) on your claim. The toll-free number is 833-680-0177, or you can e-mail us at [email protected]. We’re on your side. We can help.