Mass Tort Cases: Challenges for Plaintiff’s and Defense Counsel

Thu, Mar 27th, 2025 | by Miles Mediation and Arbitration | Article | Social Share

Mass tort cases present unique challenges for both plaintiff’s and defense counsel. Unlike a class-action case, where a representative plaintiff stands in for the other members of the class, each plaintiff in a mass tort case must prove that he or she was harmed by the action of the defendant. Currently there are a number of pending mass tort cases, including Camp Lejeune litigation, AFFF firefighting foam litigation, and Philips Recalled CPAP litigation. Here’s a closer look at these cases and at some of the issues faced by counsel when representing a client in one of them.

Pending Mass Tort Cases

Some of the largest pending mass tort cases include:

Camp Lejeune. This litigation was spurred by a new federal law (the Camp Lejeune Justice Act) that was passed in August 2022. There are now over 110,000 administrative claims and over 1,000 civil lawsuits pending. In September 2023, the government initiated an early settlement program for eligible claimants; in 2025, we could see the first trials in those cases. The settlements are a product of allegations that thousands of military personnel and their families were exposed to toxic drinking water while they lived at or near the Camp Lejeune military base.
Firefighting foam (AFFF). The AFFF firefighting foam lawsuits allege that exposure to aqueous film-forming foam (AFFF) can cause certain types of cancer. All AFFF lawsuits in federal court were consolidated into a new multi-district litigation (MDL) in South Carolina, and In August 2023, a global settlement deal was announced. Unfortunately, however, the settlement only included water contamination cases brought by local counties and water authorities. It did not cover claims by individuals alleging that they developed cancer from exposure to AFFF. There are currently 6,400 pending cases in the AFFF MDL. The global settlement of the water contamination cases has led to widespread speculation that a global settlement deal of the cancer cases could be in the works, but nothing yet has materialized on that front.
Philips Recalled CPAP. The CPAP (continuous positive airway pressure) machine recall lawsuits began after Philips recalled millions of CPAP and BiPAP (bilevel positive airway pressure) devices used for sleep apnea after discovering that the sound abatement foam in the machines was causing users to inhale toxic chemicals. CPAP lawsuits followed and continue to be filed. In April 2024, Philips, a Dutch medical device maker, agreed to pay $1.1 billion to settle lawsuits over their allegedly dangerous sleep apnea machines. The settlement includes $1.075 billion for personal injury claims and $25 million for medical monitoring. (I am personally involved in this mass tort case as I was appointed to the Philips Recalled CPAP, BI-LEVEL PAP, and Mechanical Ventilator Products Litigation, MDL Plaintiff’s Steering Committee by Judge Conti.)
Exactech knee and ankle recall. Exactech is a leading manufacturer of surgical implant systems used for total knee and total ankle replacement surgeries. Exactech was forced to initiate a major recall of all its knee and ankle replacement systems after discovering that a defect in the product packaging was causing polyethylene components in the products to oxidize, leading to an abnormally high rate of premature implant failure. This led to a growing product liability mass tort. At the start of 2023, there were just 123 pending cases in the MDL. As of December 2024, there were more than 1,800 pending cases in the MDL. On October 29, 2024, Exactech filed for Chapter 11 Bankruptcy in the U.S. Bankruptcy Court for the District of Delaware. This move is seen by some as an attempt to avoid liability to over 3,000 victims harmed by their defective orthopedic products.
Hair relaxer. In October 2022, a groundbreaking study was published which found that regular use of hair relaxer (a product used by millions of Black women in the U.S.) increases the risk of uterine cancer. This sparked a wave of hair relaxer cancer lawsuits that were quickly consolidated into a new class action MDL. Millions of African American women in the U.S. use hair relaxers on a regular basis their entire adult life, which makes the volume of the potential claims quite large. The hair relaxer MDL has been the fastest-growing mass tort case in the country; in 2023, it started with less than 150 pending cases and currently has about 8,600 cases. This growth rate will almost certainly continue into 2025.

Challenges for Plaintiff Attorneys

Plaintiffs face myriad challenges when addressing mass tort cases, and the challenges can vary depending on the type of mass tort claim. One challenge many plaintiffs are confronted with is client selection. When a mass tort is in its infancy, it may be difficult to determine what claims will survive a defendant’s effort to sever the causal link between its product and a plaintiff’s alleged injuries. Difficulty with case selection can be compounded by industries that promise to deliver leads for potential clients and the competition to secure a limited pool of clients. In addition to case selection, plaintiffs’ attorneys, particularly those that are selected for leadership roles, are faced with the sometimes-difficult task of litigating by committee. An open-minded approach to working with counsel who may have a diversity of ideas, perspectives, and strategies makes for a successful team.

Challenges for Defense Attorneys

As mass tort litigation commences and motions on the pleadings are ruled upon, it is often the case that discovery is defendant focused. Plaintiff-oriented discovery will likely be reduced to fact sheets and other truncated discovery procedures. Defendant-oriented discovery, on the other hand, will proceed in a decidedly more complex fashion, which may create an imbalance of exposure. Defense lawyers face the challenge of managing this exposure while mounting a strategic and efficient defense under complex circumstances.

Challenges for All Counsel

It can be expensive and time-consuming to litigate mass tort cases, especially for the lawyers and firms that are selected by the court to serve in leadership roles. It’s unfortunate because the cost and time associated with litigating mass tort cases can often be a barrier for entry to leadership roles for many plaintiffs’ firms, which has led to diversity problems. Some courts are actively attempting to address this issue by demanding roles for lawyers who have been traditionally underrepresented. The cost and time can be difficult for defendants also, so much so that bankruptcy threats have become part of the defense strategy. That said, multi-district litigation is designed to promote judicial efficiency; without it, the cost of litigation would make justice prohibitive for all parties concerned.

Advice for All Counsel

My advice for plaintiffs’ lawyers and defense lawyers is the same—communicate with opposing counsel often and early. The complexity of mass tort cases requires lawyers, whether they represent a defendant or plaintiff(s) to prepare for extended and time-consuming litigation. The litigation can, and often will be unnecessarily protracted if the parties don’t understand one another. Counselors should consider scheduling regular “check-ins” with each other to discuss the progress of the litigation, their clients’ goals, their expectations, and if possible, to simply get to know the lawyers they will likely be working with for a long time.

The Option of Mediation

Mass tort cases are uniquely situated for mediation. The cases are often closely supervised by the court because of the extensive docket, complex nature of the litigation, and the exceedingly high stakes. Moreover, the court, because it is aware that most mass tort cases conclude by global settlement, will take an interest in seeing to it that the parties are appropriately contemplating their settlement options.

In fact, it is not uncommon for the court to appoint a settlement special master and the parties to establish a settlement committee to facilitate settlement discussions. Mediation is a good option for mass tort cases, but it is a better option when the parties start early. Unlike your conventional single event cases, mediation in mass tort cases is more effective if the effort is applied throughout the litigation, rather than simply at critical junctures.

*Originally published in the Daily Report and reprinted with permission.

About M.J. Blakely

M.J. Blakely is a mediator, trial lawyer, and complex litigation specialist with a passion for establishing justice for all. His real-world legal experience led him to the conclusion that most cases settle, so he dedicated a part of his practice to ensuring parties reach the best possible settlement outcomes. M.J.’s mediation practice includes catastrophic personal injury and wrongful death cases, product liability cases, class actions, mass tort cases, civil rights cases, and commercial business disputes. Although M.J. primarily represents plaintiffs these days, he has represented both plaintiffs and defendants during his nearly 20-year legal career, and he is intimately familiar with the unique interests each party brings to mediated and arbitrated disputes.