CD: Reflecting on the last 12 months or so, what do you consider to be among the key trends in relation to mass torts?

Williams: Key trends relate to jurisdiction and venue. There is a growing recognition that even a single-plaintiff case in state court might generate outsized liability risk. Even a single, outlier plaintiff’s verdict in state court may have a serious impact on the number of cases filed and the settlement terms demanded. Accordingly, many of the battle lines are drawn over whether plaintiffs can hold on to favourable state-court venues for trial or whether defendants can move the litigation into federal court – with Rule 23 standards for class certification, Daubert standards for expert testimony and the availability of comparatively well-managed multidistrict litigation proceedings. These issues arise during the earliest motions-practice in a case and then persist through the latest stages of appeal, even petitions for certiorari at the US Supreme Court.

Kiser: The internet and social media have become game-changers for the plaintiffs’ bar and will continue to be. Plaintiffs’ lawyers are utilising television advertising and internet outreach to amass allegedly affected individuals prior to filing suit over an allegedly defective product. Plaintiffs lawyers are also conducting pre-filing testing and analyses to identify and substantiate liability theories, which they then assert against multiple manufacturers who make similar products and are in similar industries. We saw this in the metal hip implant litigation. Virtually all metal hip implant manufacturers have been sued under the same or similar theories, and there are websites and television commercials devoted entirely to identifying affected persons who may have claims. Plaintiffs are also trying to extend product claims across industries and will no doubt continue to do so. Glyphosate litigation is but one example of this.

Apr-Jun 2019 issue

Jones Day

King & Spalding LLP

Kirkland & Ellis LLP