Best Practices in Mass and Toxic Torts

By Ronald B. Lee and Moira H. Pietrowski

In 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.

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. However, best practices can be used to obtain dismissals when there is no exposure by plaintiff to your client’s products.

BEST PRACTICES

Develop a relationship with the plaintiff’s attorneys, and be honest in order to gain the trust needed to obtain dismissals.

Often in mass litigation, there is the tendency to treat the opposing side as an untrustworthy enemy that needs to be defeated. Sometimes that is true. Other times, it is critical to develop a relationship of trust. That can help when you try to educate opposing counsel about your client’s business and/or products, which can lead to opposing counsel understanding the basis for your client’s dismissal. Such actions are not only ethical and required but provide patterns of honesty and good faith dealing that will benefit your client in other mass tort cases with similar opposing counsel.

Our firm had a situation in which a client did not want to search paper-archived sales records but wanted to use time-limited computerized records to support a dismissal. Our communications to opposing counsel were clear that the computerized records were limited to certain years. Discovery progressed, and plaintiff’s employer produced additional records. Our client then searched the paper-archived records and found information consistent with the plaintiff’s employer’s records. While the client remained in that case, our relationship allowed us to get dismissals in other cases.

To obtain dismissals, build relationships and share relevant discoverable information early with the other side. Often, defendants remain in cases because they refuse to provide basic discoverable information.

Gather the client’s documents early and understand your defenses immediately.

You cannot obtain early dismissals unless you have the information you need from your client. Develop a relationship with the client so that they understand what is needed and why. Conduct a thorough analysis of the information in light of each plaintiff. Understand the sales information, chemicals involved and the plaintiff’s alleged exposure. Prepare and provide affidavits to prove how accurate information was gathered. Depending on the situation, it makes sense to disclose what is discoverable early in the case to support the reasoning for your client’s early dismissal.

Be relentless in your pursuit of information from your client and for dismissal from opposing counsel.

Once you have shared information indicating that your client should be out of a case, pursue dismissal by phone calls and emails with opposing counsel. For cases with minimal product exposure, consider obtaining authority and negotiating a small payment. If the other side requests more discovery, suggest a dismissal with an option to re-join if additional discovery supporting plaintiff’s position surfaces.

Finally, there are times when a dispositive motion is needed to get the dismissal your client deserves. Early dispositive motions tend to be held in abeyance until discovery is completed. Sharing dispositive motions with opposing counsel prior to filing can help. Such actions provide opposing counsel an opportunity to address the issue internally without preparing a formal response.

These best practices have worked for our firm in securing early dismissals in mass tort litigation. There are clients and situations that require a more aggressive approach, and many mass tort cases involve attorneys who will not agree to anything. Even in those situations, relationship building and honesty, picking your battles, and being relentless will serve you well.

Ronald B. Lee is a shareholder and the practice group manager of the Product Liability & Toxic Tort Group at Roetzel & Andress in Akron, Ohio.

Moira H. Pietrowski is a shareholder in Roetzel & Andress, focusing on product liability, toxic tort, fire litigation and general negligence.