Before filing a case on behalf of multiple people who have been injured, either physically or monetarily, an initial decision must be made of whether to bring each person’s claims individually, or as a group. If you believe bringing the claims as a group would be more beneficial for purposes of economy of scale, greater bargaining power collectively, and efficiency, the next issue that needs to be decided is whether to pursue the case as a class action or a mass action. These two types of procedural mechanisms for bringing a group of claims together are appropriate under different circumstances, and each have their own pros and cons.
Sometimes the decision of which type of action to pursue is easy, while other times there is some strategy and weighing of options involved, as well as legal considerations of whether the proposed class meets the criteria for certification. Here are some considerations to keep in mind when making this decision with your clients:
- How many plaintiffs can be practically joined? Can they represent others or just themselves?
- How similar are the plaintiffs claims in regard to both commonality and typicality?
Mass Torts Sometimes Are Not The Right Fit For Class Actions
A common example of claims that are sometimes not appropriate as class actions are mass torts, where multiple people are injured such as in a large accident. Mass torts can include such things as injuries from pharmaceutical drugs, large scale accidents and even products liability claims. In fact, the comment to FRCP 23(b)(3) explicitly cautions against the use of the class action device in mass tort cases. The reasons for this include that these cases involve personal injuries and sometimes even death, meaning that each claim is not easily described as “typical,” because there is a need for individual evidence of exposure, injury and damages for each plaintiff, not just class representatives.
Here in Indiana we are unfortunately too familiar right now with such a large accident, the stage collapse at the Sugarland concert at the Indiana State Fair. In that case the victims have brought a mass action, not a class action, against various defendants alleging fault for the accident. It would not have been appropriate to try to bring a class action because there was no commonality regarding the injuries, and therefore each plaintiff’s case ultimately must be decided on its own. On the other hand, the State Fair stage collapse case is perfect for a mass action as the liability claims (what caused the stage to collapse and who is responsible) will require the same proof for all the injured parties.
There are both factual and legal differences between individual claims in mass actions. These differences make it impossible to fulfill the elements of typicality and adequacy which are required for Rule 23(a). Further, these same differences make it difficult to demonstrate that the putative class has the requisite “cohesiveness” which is required in Rule 23(b)(2) and makes it difficult to demonstrate that the putative class as common issues which “predominate” which is required for Rule 23(b) claims.
Another reason not mentioned in procedural rules themselves, but which often is an important factor in why class actions do not practically work for mass torts is that when someone suffers a personal injury they and the courts have major concerns about autonomy, and being properly represented as a class member. Each plaintiff has significant interest in individually controlling the prosecution of separate actions, and a substantial stake in making individual decisions on whether and when to settle. This came into stark focus when, for example, in the nationwide asbestos settlement classes proposed in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) the individual absent class members had concerns so great about the proposed class action settlements that they pursued their objections all the way to the United States Supreme Court on multiple occasions.
While there are many legal and practical differences between class actions and mass actions, they often have the same general goal in mind — get relief for the injured parties as quickly, efficiently, and in as cost-effective manner as possible. Certain factual situations lend themselves better than others to one procedural mechanism or the other, so the first step is to examine the facts of the case and decide which has a better chance of achieving the goals of your clients before going forward.