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.
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.
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.
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.
More recently, mass torts arise from pharmaceuticals, medical devices and chemicals, but also include products like earplugs, car airbags and Talcum Powder.
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” is considered to be part of personal injury law. This means that “mass tort” is primarily concerned with the law of 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.
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.
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.
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.
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.
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.
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.
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 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@example.com. We’re on your side. We can help.