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Economics, Social Issues

Prediction: United States mass tort litigation will continue to encounter standing and due process headwinds

Economics, Social Issues
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Prediction

With plaintiffs' attorneys favouring contingency fee agreements whereby they receive a percentage of recoveries, especially for mass actions which maximise fee awards from deep-pocketed organisations, the search is now on for the 'next big thing'. Previously, mass actions centred around asbestos, tobacco, pharmaceuticals, breast implants, pelvic mesh, and environmental contamination (among others). To ensure maximum recovery, the plaintiffs' bar argued for – and courts adopted – alternative causation theories to impose liability for damage and injuries even when plaintiffs could not directly prove their damages and/or injuries were caused by a particular defendant. Even in those cases, however, plaintiffs must allege their injuries are attributable to the acts or omissions of specific defendants. The plaintiffs' bar is now focusing on two types of ubiquitous products that allegedly cause various maladies: forever chemicals (PFAS) and ultra-processed foods (UPF). However, as demonstrated by the courts' decisions in Hardwick v. 3M Co. and Martinez v. Kraft Heinz Co., Inc., claims brought by mass action plaintiffs will not be permitted to survive dismissal based upon general, non-specific allegations about injuries suffered from general exposure to ubiquitous products. We expect that trend to continue for other, similarly ubiquitous products on which the plaintiffs' bar focuses its attention.

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