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Class Action Lawsuits: a Mountain of Details

Posted By Charlene Sabini, PP, CLP, ALP, Friday, January 12, 2018
Updated: Thursday, January 18, 2018

Class Action LawsuitsA class action, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member of that group.

A group of people with the same or similar injuries caused by the same product or action can sue a defendant as a group. Similar lawsuits brought by a group of people who suffered similar harm or losses are also called "mass tort litigation" and "multi-district litigation." 

Most of us have heard of class action lawsuits but perhaps not the term "mass tort." Class action is a specific type of legal action where a lawsuit is filed on behalf of an entire group of plaintiffs who share a set of damages, misfortunes, or injuries. Class actions cut down on the number of court cases that arise when many are harmed by the same problem. Mass tort lawsuits are different. Mass tort claims also attempt to reduce the number of court cases in the system, but they are handled differently by covering a much broader range of claim types. A class action suit is, however, a type of mass tort claim. Mass tort claims are often brought when a large number of consumers are harmed by things like defective drugs or defective products and can be a bit more complicated than class actions.

Those who seek justice in class action lawsuits may have also incurred injuries caused by medical devices, motor vehicles, or other consumer products. Injured parties have also been known to sue as a class regarding consumer fraud, corporate misconduct, securities fraud, and even employment practices. Mass tort litigation can be a multi-party lawsuit based on a massive accident, such as an airplane crash, in which many people are injured or widespread personal injuries have been caused by a defective product, such as a medical device.1 The class action, as we now know it, originated in the United States and is still predominantly a U.S. phenomenon, but several European countries with civil law have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.2

In a typical class action, a plaintiff sues one or more defendants on behalf of a group, or class, of absent parties. In a traditional lawsuit, one party sues another party for redress of a wrong, and all of the parties are present in court. Class action differs from this. Instead of each injured individual bringing his or her own lawsuit, the class action allows all the claims of all class members—whether they know they have been injured or not—to be resolved in a single proceeding.3

The antecedent of the class action was what modern observers call "group litigation," which was common in medieval England from about the year 1200 onward. These lawsuits involved groups of people either suing or being sued in actions at common law, and the groups were usually based on existing societal structures like villages, towns, parishes, and guilds. It was easier to handle group cases because handling individual cases with the methods of transportation and communication available at that time in history was awkward. In his writing, Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action, reveals, however, that from 1,400 to 1,700 group litigation began its evolution from being the norm in England to the exception. The development of the concept of the corporation led to the wealthy supporters of the corporate form becoming suspicious of all unincorporated legal entities, which in turn led to the modern concept of the unincorporated or voluntary association.4 

So, group litigation in England slowly but eventually came to be replaced by individual litigation. The system had shifted so drastically that by the end of the 1700s, cases involving groups had actually become difficult to process. Due to developing laws, group litigation had become virtually nonexistent in England after 1850. Although it died off in England, it survived in the United States due to the efforts of Joseph Story, an associate justice of the U.S. Supreme Court in the early 1800s.5 He imported it into U.S. law through summary discussions in his two equity treatises as well as his opinion in West v. Randall, 29 F. Cas. 718 (R.I. 1820).  However, Story did not necessarily fully endorse class actions, because he "could not conceive of a modern function or a coherent theory for representative litigation.”6  Regarding West v. Randall, he more specifically said,


It is a general rule in equity that all persons materially interested, either as plaintiffs or defendants in the subject matter of the bill ought to be made parties to the suit, however numerous they may be.7 

Originally, then, American courts followed the example of our British brethren, using their power in equity to avoid multiplicity of actions where numerous individuals sued a common defendant for the same legal wrong. In 1842, the Supreme Court promulgated Equity Rule 48, “officially recogniz[ing] representative suits where the parties were too numerous to be conveniently brought before the court, but refused to bind absent parties to any resulting judgments.” For convenience, therefore, and to prevent a failure of justice, a court of equity permitted a portion of the parties in interest to represent the entire body, and the decree bound all of them the same as if all were before the court. In 1912, that Equity Rule 48 was rewritten, becoming Rule 38. The new rule maintained representative actions, but additionally allowed absent parties to be bound by judgments entered thereunder.8 

Certain class action law cases (and mass torts) have changed U.S. History:

The State of Tennessee v. John Thomas Scopes


Also known as the “Scopes Monkey Trial,” this famous class action suit challenged the constitutionality of the Butler Act, a 1925 Tennessee law that made it unlawful to deny the divine creation of man as written in the Bible and to teach the theory of evolution instead.


When the State of Tennessee passed the Butler Act, the American Civil Liberties Union (ACLU), in one of this organization’s earliest battles, asked for volunteers to deliberately teach Charles Darwin’s theories in a public Tennessee schoolroom. They found their representative in biology teacher John T. Scopes, who agreed to teach the forbidden subject in his classroom. Scopes was indicted in May of 1925 and the trial began in June that year.


Although the trial raised awareness and acceptance of the theory of evolution and of academic freedom, the Butler Act would not be repealed in Tennessee until 1967, and nationally in 1968, after subsequent civil action lawsuits that challenged the laws again.9


The ability to teach evolutionary theory in public schools continues to touch nerves and be challenged.


Brown v. Board of Education of Topeka, 347 U.S. 483 (1954):

This landmark decision declared that segregated or “separate but equal” schools were unconstitutional. This was viewed as a watershed moment in the civil rights movement and as one of the most important decisions of the U.S. Supreme Court.

In 1954, major sections of U.S. schools were segregated along racial lines due to the 1896 Plessy v. Ferguson, 163 US 537 (1896), decision which permitted segregation at the state level as long as the separate schools were equal. Thurgood Marshall, who was appointed in 1967 as the first black justice to the Supreme Court, led the class action lawsuit for the plaintiffs.

The related class action, a consolidation of five similar cases in four states, was eventually filed on behalf of Oliver Brown, the father of a child who was prevented from enrolling in a whites-only school in Topeka, Kansas. Brown claimed that the segregated school system in Topeka violated the Equal Protection Clause of the fourteenth amendment to the Constitution because the black and white schools were not and never could be equal to each other. The Court handed down its decision on May 17, 1954, and agreed unanimously with Brown, with Chief Justice Earl Warren delivering the decision.10

Roe v. Wade, 410 U.S. 113 (1973):

This case is one of the most socially controversial and high-impact pieces of legislation in the U.S. It was actually a consolidation of three civil action lawsuits being argued in different states at the same time. The 1973 Supreme Court decision rendered abortion legal until the end of the first three months of pregnancy and declared that restricting a woman’s right to choose abortion was an invasion of her privacy, being covered under the ninth and fourteenth amendments to the U.S. Constitution.

The decision, which struck down an 1851 Texas statute that criminalized abortion unless the life of the mother was endangered, came under immediate attack by opponents and still faces sensitive challenges at the state level.

The representative plaintiff in the class action, Norma Harvey, who later identified herself as the “Roe” in Roe v. Wade, wanted to end her pregnancy but could not afford to travel to one of the other U.S. states that had already legalized abortion. After many years speaking as a champion of the 1973 decision, Harvey told the press in 1995 that she had changed her views about abortion and was now “pro-life.”11   The issue is far from resolved and is still hotly debated across the country.


But interesting, modern class action lawsuits are bubbling away as we speak . . .


Example: “Abbott Laboratories is currently facing lawsuits (a mass tort) alleging that the drug Depakote can put unborn children at risk for serious birth defects if mothers take the drug while pregnant. Of all antiepileptic drugs, Depakote is the most likely to cause serious malformations in unborn children, according to the lawsuits. Despite allegedly knowing that Depakote has been linked to heart defects, developmental delays, and certain deformities, lawsuits claim that Abbott did not take proper steps to warn doctors and women about these risks . . .  the FDA has also warned women that Depakote may cause developmental delays and/or lower cognitive scores. Most recently, the FDA changed Depakote’s pregnancy category for the prevention of migraines from a ‘D’ to an ‘X,’ meaning that the risk of its use in pregnant women clearly outweighs any possible benefit.”12  


Example: “People are suing Bristol-Myers claiming that Abilify caused them to develop compulsive gambling habits and that the drug company owes them money as a result. Several studies have found a possible link between compulsive gambling and Abilify use, while the FDA has at least 30 reports of this side effect from Abilify users. Additionally, both Europe's and Canada's labeling for Abilify includes the risk of pathological gambling – but no such information exists on U.S. labels . . . The suits claim that Bristol-Myers Squibb failed to adequately test the drug and failed to warn both patients and doctors about this serious side effect.”13 

Example: While hip implant components have previously been made from a range of materials, including ceramic and plastic, metal-on-metal implants put metal parts in direct contact with other metal parts. This can lead to corrosion as the metal parts abrade each other and release tiny bits of debris into the body. The FDA issued a safety communication on January 17, 2013, warning that metal-on-metal hip implants have the potential to shed tiny metal particles into patients' bloodstreams, resulting in a variety of serious adverse effects. This can reportedly result in bone or tissue damage, device failure, or metallosis, which develops when dangerous levels of chromium and cobalt accumulate in the bloodstream. Of the six manufacturers facing litigation, only three have issued recalls over their artificial hips, leaving prospective patients at risk for receiving an allegedly defective device.14  


Manufacturers currently involved are: DePuy, Smith & Nephew, Stryker, Wright Medical, and Biomet. These manufacturers are now the subject of thousands of lawsuits.


Most metal hip manufacturers, with the exception of Wright Medical, are facing multi-district litigations (MDLs) over their products. In an MDL, all federally-filed cases are transferred to one court before a single judge to help save time and money and to ensure consistent rulings after a large number of people have been injured by the same product.15 


So, as a paralegal or legal assistant working in a class action legal environment, where do you fit in and what sort of tasks or duties might you be expected to accomplish? Some basics could include reviewing and organizing a vast array of documents for use in such things as investigations. You also may prepare written discovery and depositions. You may be asked to organize facts so your legal team can emerge with a sensible strategy. It’s not unusual for paralegals and legal assistants to be facing mountains of documents—even warehouses full of documents—and often a staggering number of pages of information from several law firms. You might well help coordinate discovery and maintain case files. It would be extremely helpful to have knowledge of litigation document management software, a couple of all-important database programs, as well as the use of trial aids and skills at assembling books of witness documents. Computer skills are clearly a must for the class action legal assistant.

If you are a legal assistant or paralegal with an interest in class action litigation (and some part of your firm practices in this area), volunteer to assist in those cases. Get in on the ground floor. And be ready to see legal matters in amplified detail.  ///

  1. Class Action Cases, n.d. Retrieved from http://litigation.findlaw.com/legal-system/class-action-cases.html
  2. Class Action, https://en.wikipedia.org/wiki/Class_action
  3. Ibid.
  4. Ibid.
  5. History of Class Action Lawsuits, n.d. Retrieved from https://classactionlawsuitcenter.com/history-of-class-action-lawsuits/
  6. Class Action Lawsuit, n.d. Retrieved from  https://www.revolvy.com/topic/Class%20action%20lawsuit&item_type=topic
  7. About Class Actions, (February 19, 2015). Retrieved from http://wweinsteinlaw.com/aboutclassactions.htm
  8. Class Action: An Overview, n.d. Retrieved from https://www.law.cornell.edu/wex/class_action
  9. Vito, (January 8, 2016). Retrieved from https://imgaudit.com/2016/01/how-class-action-lawsuits-have-changed-the-u-s-history/ 
  10. Lisa, (November 20, 2012). Retrieved from http://www.iveyengineering.com/class-action-lawsuits-2/ 
  11. Ibid.
  12. Depakote Lawsuits Allege the Drug Can Cause Birth Defects, n.d. Retireved from  https://www.classaction.org/depakote
  13. Abilify Lawsuits for Compulsive Gambling, n.d. Retrieved from https://www.classaction.org/abilify-compulsive-behavior-lawsuit
  14. Defective Medical Devices, n.d. https://www.classaction.org/hip-replacement-lawyers
  15. Ibid.

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