Personal Injury

Mass tort vs. class action — which is right for your case

By AdvocateDaily.com Contributor

Mass tort litigation is a better fit for some plaintiffs than class actions, says Oakville personal injury lawyer Meghan Walker.

Walker, associate with Will Davidson LLP, tells AdvocateDaily.com that injury victims who are one of many affected by a particular incident or product malfunction often face the choice between joining a class action or going it alone in a process known as mass tort litigation.

“Which choice you make all comes down to the particulars of your injuries, but your personality can be a factor as well,” Walker explains. “If you’re uncomfortable with the idea of being active in a discovery process, for example, then a class action may be preferable.

“But on the flip side,” she says, “if you want to be able to tell your story and articulate to defence counsel or a jury how affected you have been, then mass tort may be the appropriate way to go.”

Walker says the distinction between the two forms of litigation can be tough to grasp for a layperson with little experience in the legal process, but the key differences are in the level of commonality between plaintiffs’ injuries and the amount of input given to individual claimants as the case progresses.

“If you’re part of a class action, you generally don’t have any input on how the case proceeds,” she says, explaining that litigation decisions, such as whether to accept a proposed settlement, are not made by each class member.

Mass tort litigation, on the other hand, allows a large number of claimants to pursue individual cases against the same defendant. Plaintiffs may have to opt out of class actions in order to go ahead, and Walker says there are important deadlines in this regard.

“In an individual action, you maintain full authority over how the case proceeds, and whether you want to accept or turn down settlement offers,” Walker says.

When it comes to damages, each mass tort case is assessed and resolved on its own merits, as opposed to class actions, where the compensation is divided among class members, she adds.

Walker’s firm has a long and ongoing history in both forms of litigation, having been involved in class actions related to incidents as varied as pharmaceutical products and environmental contamination.

In the last couple of years, Will Davidson LLP has also participated in product liability mass torts involving various manufacturers of transvaginal mesh (TVM) — flexible, net-like material inserted into the pelvis via an incision — that has been identified as the source of health problems in many women.

Walker says the firm’s TVM work proceeds via mass tort, largely because of individual differences in plaintiffs’ injuries.

“There is a very wide spectrum,” she says. “Some people, for example, are totally disabled and unable to work, which can lead to significant individual care claims.

“The cases look really different, even for people affected by the same products, and if you’ve been severely affected, mass tort litigation can be a good option to allow your case the attention it deserves,” Walker says.

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