Tech and Torts: the Promises and Pitfalls of Online Mass Tort Litigation￼March 2, 2023
Five seconds after turning on your television you’re likely to hear an authoritative voice ask, “Have you or a loved one been diagnosed with mesothelioma? If so, you may be entitled to financial compensation.” Today, it’s impossible to watch television or browse the internet without seeing countless advertisements for mass tort litigation. Long gone are the days of grassroots Erin Brockovich-style solicitation. Mass torts are big business; in 2020 lawyers spent approximately $400 million on mass tort advertising for just five cases. The bulk of this spending comes from the increasing use of television and social media advertisements as well as the emerging application of online tort lead generators. These mass lawsuits are vital in that they offer compensation for painful, and often deadly, diseases. While the growth in mass torts may bring a sense of justice to clients who would not otherwise have had access to representation, it also presents ethics concerns rising from murky digital boundaries.
While the growth in mass torts may bring a sense of justice to clients who would not otherwise have had access to representation, it also presents ethics concerns rising from murky digital boundaries.
One of the most recent mass torts cases is the ongoing Camp Lejeune litigation. Beginning in the 1980s, residents of the army base became aware of the presence of multiple industrial solvents in the water supply which provided water to the barracks that housed both servicemembers and their families. The Department of Veterans Affairs states that there is an association between exposure to these chemicals and diseases such as Parkinson’s, leukemia, and Non-Hodgkin’s lymphoma over time. In 2022, more than $145 million was spent on television and social media advertising towards soliciting clients to join the suit. Yet, the amount is likely to double or triple. In August 2022, Congress passed the Promise to Address Comprehensive Toxins Act, allowing those stationed at Camp Lejeune to seek damages if they were exposed to the toxic water for at least thirty days between August 1953 and December 1987. As many as 500,000 veterans and their families may be eligible to file a claim. The sheer scale of potential Camp Lejeune torts could eclipse the previous records set by a product-liability suit against 3M, whose military-issue earplugs caused servicemember’s hearing damage. For mass tort litigators, the Camp Lejeune case is a perfect storm: concerned veterans and their families have already organized themselves into Facebook groups where they could easily be contacted. Firms have also infused their digital presence with cash, budgeting $32 million for online advertisements last year alone.
While the push towards advertising on social media is a recent development, legal advertising itself isn’t a new phenomenon. Although in practice since the 1800s, the modern era of legal advertising began in 1977 with the Supreme Court decision in Bates v. State Bar of Arizona that essentially legalized attorney advertising. Today the use of technology in tort law has revolutionized the previously unobtainable. The use of virtual reality helps lawyers recreate incidents, enables expert walkthroughs, and ensures better analysis of forensic evidence. This gives lawyers and judges insight into events few would have witnessed and allows previously vague instances to have tangible weight in court. The largest change, however, comes with the novel client solicitation process. Mass torts are now entrenched in an “ecosystem” where marketing firms find clients, financiers provide backing to firms, scientists assess potential viability, and clients become commodities to be “bought and sold” by marketers, based on demand. This network streamlined the mass torts process by routing interested callers from television advertisements to call centers or steering others to targeted online advertisements and firm-run social media pages. Online, clients may interact with automated chat bots who offer routine screening questions. Regardless of the initial point of contact, if the potential clients qualify as plaintiffs, then the lead generators send the law firm’s contracts.
Yet with great progress comes accompanying downsides.
Yet with great progress comes accompanying downsides. The rapid growth of mass torts may lead to more bankruptcies among commonly targeted industries like pharmaceutical and device-making companies. Bankruptcies can look attractive to companies since they provide an efficient route for settling with thousands of claimants. Instead of sifting through many cases, the bankruptcy court might estimate the company’s liability via expert testimony or previous verdicts. If the parties choose to settle out of court, it may also facilitate settlement negotiations if the company doesn’t have the money. However, the extensive oversight of bankruptcy courts will disrupt the day-to-day operations of the company and companies would no longer be able to transfer value to shareholders in the form of dividends.
This new digitized form of mass torts also creates a legal minefield for lawyers hoping to entice potential clients. Lawyers must carefully navigate client solicitation since they could run afoul of ethics rules. According to the American Bar Association Journal, a lawyer hiring a professional lead generator to obtain leads for a mass tort case can be a violation of the Model Rules of Professional Conduct. Violations could occur if lawyers fail to adequately inform the lead generating service of rules governing direct solicitation as seen in Rule 7.3. By failing to train the lead generator, a lawyer would violate Rule 5.3(b) because the outside party’s conduct was not compatible with the lawyer’s professional obligations. Yet if the lawyer carefully outlines the scope of solicitation, the lead generator may be allowed depending on the jurisdiction. So, has technology turned mass torts into the “wild west” of ligation, or is it torts’ next natural phase in our digital world? That remains to be seen. While the increased transparency and accessibility of mass torts certainly brings litigation to a broader audience, these promises are complicated by challenges which may have long-term corporate and ethical consequences.
Chloe Caldwell Picchio graduated from Barnard College with a degree in Religion and a concentration in Environmental Science. She also has a master’s degree from Columbia Journalism School, where her work focused on healthcare reporting. At UNC, Chloe is the Communications Director for the Environmental Law Project as well as a staff member of the North Carolina Journal of Law and Technology. Between classes, Chloe loves hanging out with her corgi puppy Luca.