At the outset of a nationwide products liability litigation, plaintiffs’ counsel are faced with procedural issues which are unique to mass torts and which can affect the litigation from start to finish.
When a prospective client inquires about, for example, a medical device failure/recall, the usual questions come to mind: (1) when did the incident/injury occur; (2) what is the associated statute of limitations or prescriptive period; (3) what is the extent of damages; etc. Because the existence of a mass action may affect the statute of limitations and/or the future litigation expenses, it is important to determine whether an MDL has formed (or is in the process of forming) and also whether there are any class action lawsuits pending.
A class action may interrupt or toll the prescription period or statute of limitations applicable to your prospective client’s case pursuant to the American Pipe case. There also may be other beneficial agreements reached in an MDL or class action. Such agreements might include a direct filing order (see Xarelto,MDL No. 2592, PTO No. 9), a joinder form (see Deepwater Horizon, MDL No. 2179, PTO No. 24), or a tolling agreement. MDL transferee courts also will typically implement streamlined processes for service of pleadings and individual plaintiff discovery (i.e., plaintiff fact sheets). If procedural devices are available, litigation expenses may be avoided by aligning your client’s action with the MDL or class action lawsuit. A thorough review of the MDL court’s website or class action proceedings is essential.
Lawyers seeking a common benefit role must follow the MDL court’s orders related to application for appointment. If a class action lawsuit is pending in lieu of an MDL, associating with class counsel may provide an opportunity for participation in such a role. Common benefit counsel initially address similar procedural concerns, including direct filing, service of pleadings, transfer/coordination of cases, and, of course, discovery. Attention to such manageability issues on the front end will result in significant efficiencies as the litigation matures.
All counsel should be mindful of varying product liability statutes of limitation across the county (generally 1-6 years) and the existence of exceptions for minors, discovery doctrines and/or statutes of repose, all of which can affect the applicable limitations period. The effect of later-arriving, non-prescribed plaintiffs’ is difficult to anticipate, making global settlement of MDL or class cases challenging.
In sum, the online availability of MDL and class pleadings, in combination with the publicity and advertisement related to nationwide products liability cases, provides attorneys with invaluable information for investigation of related matters at the very front end of their client’s case in order to position their client for an optimum (and least costly) outcome.
About the Author:
M. Palmer Lambert joined the Gainsburgh Benjamin law firm as an associate attorney in 2011. Born in New Orleans, Louisiana, he attended Tulane University, where he obtained the degrees of B.S. in Mechanical Engineering, Master of Business Administration, and Juris Doctor. Palmer holds a certificate in Environmental Law from Tulane Law School, where he participated as a student attorney for Tulane’s Environmental Law Clinic. He graduated magna cum laude and first in his undergraduate Mechanical Engineering class. He is a member of the Tau Beta Pi and Pi Tau Sigma engineering honor societies and a member of the Beta Gamma Sigma business honor society. Palmer focuses his practice in the areas of products liability, personal injury and complex litigation, including federal and state appellate court litigation. Palmer is also an experienced pilot with private, commercial, instrument, single-engine and multi-engine ratings. He is licensed to practice before all Louisiana state and federal courts, including the federal Fifth Circuit Court of Appeals.