A mass tort is not the same as a class action. In order to have a class certified, you need to meet the requirements of Federal Rule 23 or its state equivalent. Although the requirement might be articulated differently from jurisdiction to jurisdiction, class action statutes always contain a “typicality” requirement. Federal Rule 23 requires “the claims or defenses of the representative parties [to be] typical of the claims or defenses in the class.”
This is where most mass torts go astray. There is no typical injury. For example, in the asbestos litigation, all plaintiffs claim to have suffered mesothelioma or a different form of lung cancer as a result of breathing in asbestos dust. But, there is no typical cancer. Shouldn’t a person who was diagnosed with stage 3 lung cancer at age 25, who suffered years of radiation and chemotherapy recover more money than a person who was diagnosed with stage 1 lung cancer at age 65, who didn’t suffer as much? Class actions do not have a mechanism to account for the individual injuries of each person.
A mass tort can take into account the specific injuries of each plaintiff. The term “mass tort” just means that a large number of individuals are bringing suit against the same group of defendants for similar injuries. Frequently, mass torts become consolidated.We will talk more about consolidation next week.