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When I’m speaking about mass torts around the country for Consumer Attorney Marketing Group, one of the common questions I hear from attorneys is about the timing of litigations. Firms want to know if it’s too late to get into a mass tort. Is it too late to get into hernia mesh? Too late to get into Roundup? Too late to get into IVC?

I always answer that there are two conditions under which it’s too late to get started in litigation.

  1. It’s too late because you can no longer file due to a settlement.
  2. It’s too late when the acquisition costs become higher than you think makes sense to go get more cases.

Of course, there are numerous factors when you’re deciding on which mass tort to enter. There’s really no advising what’s “right” or “wrong.” Many of the considerations hinge on how comfortable you are with risk. Would you rather throw in a bit more money per case cost to experience less risk on mid-stage litigation or are you ready to jump into an emerging tort you believe looks promising for a lower case cost? Does your firm have enough working capital from your personal injury cases or other sources to wait it out possibly years before you see settlement disbursements? Let’s look at choosing a mass tort from a marketing or business perspective.

The Lifecycle of a Mass Tort

Before we can get into the meat and potatoes, let’s review the lifecycle of a mass tort. Mass tort litigation is divided into three stages.

Early/Emerging: The initial phase of mass tort litigation is before the Multidistrict Litigation has been formed or is newly formed. Lawsuits are filed before one federal judge overseeing the litigation who appoints the Plaintiffs’ Steering Committee (PSC) to pursue discovery on behalf of the injured plaintiffs.

Mid-Stage: This stage of litigation represents when the MDL has already been formed and is active.

Late Stage: The case is close to settlement or in settlement talks.

Risk vs. Reward

During the emerging phase, the cost to acquire clients is the least expensive but the risk is higher. Courts are still considering motions to consolidate cases in multidistrict litigation (MDL). By the time litigation reaches the mid-stage, MDLs have already been created and many legal issues have been settled. The supervising judge schedules bellwether or test cases for trial. When litigation enters the settlement phase, the cost to acquire cases is highest. However, the risk is low, compared to the emerging phase. The decisions hinge on how averse you are to risk and how willing you are to invest in cases.

Top Mass Tort Comparison Ranks from Q2 2019 to Q1 2019

At Consumer Attorney Marketing Group, we track both media monitoring data and our own campaign performance metrics to rank mass tort practice areas by media spending. We publish data and analysis of mass torts monthly in our Legal Marketing Index®. We’ve compared the rankings of the top 10 mass torts in Q1 to the rankings in Q2.

The rankings of the top mass torts are not static. Mass tort litigations may drop off the list if a case settles; emerging litigations may be added. The list is not dependent on legal issues or quality of litigations but on advertising and marketing dollars spent by firms. The mass tort comparison ranks for the top 10 areas between the first and second quarter of 2019 are below:

  1. Roundup — Up from #4
  2. Hernia Mesh – Stayed at #2
  3. Talc – Stayed at #3
  4. IVC – Down from #4
  5. Defective Military Earplugs – Stayed at #5
  6. Mesothelioma/Lung Cancer – Up from #7
  7. Xelajnz*
  8. Truvada*
  9. Valsartan – Stayed at #9
  10. Surgical Staples*

*Xeljanz, Truvada, and Surgical Staples were not previously on the Top Mass Tort List in Q1.

The Bottom Line

If you’re considering adding a mass tort litigation area to your practice, the information Consumer Attorney Marketing Group publishes in our monthly Legal Marketing Index® (LMI) can be useful to help you make decisions. The LMI contains important demographic targeting data from media industry monitoring companies, as well as CAMG’s exclusive proprietary data and intake analysis. CAMG also hosts webinars presented by leadership on emerging torts. Learn about the background of litigations, qualifying criteria, the science behind the cases, and more. Visit the CAMG website to sign up for the monthly LMI, to register for upcoming webinars or to access our library of previously recorded webinars.