People generally assume that because someone is a lawyer, they must know about every area of law. While lawyers might have a basic understanding of multiple areas of law, asking a tax lawyer about class actions and mass torts, is the equivalent of asking a pediatrician about brain surgery. While the paths of class actions and mass torts may cross paths, they are separate and distinct legal proceedings. People often, understandably, confuse the two.
Q: What is a class action?
A: A class action is a single lawsuit where one person brings a claim for many people who have suffered the same damage from a single product. A “class representative” brings the lawsuit not only for herself, but also for everybody in the group who may be affected.
Q: I think I understand but can you give me an example?
A: Let’s say you bought a Dell computer. And everybody who bought the same model, Dell Computer — Model ABC, got a bad hard drive. A person may bring a lawsuit that is styled, “Jane Smith, Individually and on behalf of all others similarly situated who purchased a Dell Computer — Model ABC.” The damages that Jane is seeking include a new replacement hard drive not only for herself, but also for everybody else who bought that same computer.
Q: Why does Jane Smith bother? Why doesn’t she just file a lawsuit by herself for her own losses?
A: Ah, because lawsuits, regrettably, are very expensive. The cost of the lawsuit would certainly exceed the cost of buying a replacement hard drive. Expenses in such a suit include not only the court’s fee to file the lawsuit, but the costs of expert witnesses, document production, and trial costs. Thankfully, the class action mechanism allows Jane Smith to sue on behalf of everybody aggrieved by the purchase of a defectively designed product. By bringing a class action, the cost of the suit can be shared among all members of the class.
Q: Can personal injury claims be class actions?
A: Probably not. For most personal injury cases, class actions are not effective tools because everybody’s damage is different, that is, an injury to one person is generally different in its nature and cause than an injury to another person. A firm represents each person individually. These proceedings are often referred to as mass torts.
Q: What about when a drug company puts out a bad drug that hurts people? Is that an example of a class action since they probably suffered from the same injury/injuries?
A: No, because not everyone will suffer the same extent of injury, the cases are best handled as mass torts. A defectively designed drug, or a drug with insufficient warnings, can cause an epidemic of harm. When that occurs, then the injured person will need his or her own lawyer to bring an individual lawsuit. Class actions are simply not good mechanisms to get personal injury damages in a drug case.
Q: A friend of mine was hurt taking a bad drug? Who should he call?
A: Cohen & Malad, LLP of course!