FEATURE
Best Practices in Mass and Toxic Torts By RONALD B. LEE AND MOIRA H. PIETROWSKI
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n toxic and mass tort litigation, we repeatedly see plaintiffs naming defendants that have no connection to plaintiff’s alleged injuries. Individual defendants may feel that they are wrongly named and want a dismissal without payment. In many cases, that is exactly what needs to be done.
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Inherent in any large litigation is an investment of company time and resources that is better spent doing business, not fighting legal battles. It seems simple, but the first decision is to fight or manage the litigation. This decision needs to be made by counsel, the company and its insurers. Collaboration is the new order
of the day, with counsel playing a pivotal role by defending and advising the client and working with the insurers to implement the strategy. When a client is sued in multiple states and cases involving a toxic tort, how can an attorney accomplish the client’s and the client’s insurers’ goals? In most of these cases, the defendants are a mix of those with exposure and others with no reason to be in the case. Best practices require addressing the plaintiff’s alleged exposure to your client’s products at the beginning of the case, before being buried with legal defense costs. Our firm recently experienced a situation in which a plaintiff’s attorney essentially chose to sue first and discover facts later. We had four different clients that were defendants in all or part of 38 cases brought in two states. In less than five months, one client was dismissed without payment from all of the cases. Within eight months, two clients were dismissed without payment from all but one case each. The fourth client was dismissed without payment from 26 cases. Five cases were settled for a nominal amount, with negotiations started on the remaining cases. All of this was accomplished in the middle of the pandemic. The overarching issue in every case involves doing what the client wants. There are some who will fight tooth-and-nail to avoid paying any settlement amount. In mass litigation, that is expensive but can be the correct avenue to prevent the next wave of litigation. BACK TO CONTENTS
