COMMENTARY: Lawyers, junk science and the mass tort playbook

As college and professional football approach their playoff seasons, the discussion naturally centers on the playbooks teams use.

A “playbook” of a different sort allows attorneys who specialize in profit-seeking mass tort litigations — often based on ambiguous or misleading facts and funded by third-party investors — to win settlements that net millions of dollars.

For those unfamiliar, mass tort litigations aggregate enormous numbers of individual personal injury claims targeting one defendant. Naturally, those defendants are typically major corporations, the types of innovators and large employers that fuel economic growth.

Cases often settle out of court in large part because of the sheer number of claimants the suing lawyers attract through ads, persuading targeted corporations to settle even meritless cases simply because of the potential losses involved, however unlikely. Accordingly, suing attorneys pump up plaintiff numbers to boost their likelihood of avoiding trial.

Mass tort litigation is now a significant — and growing — legal enterprise that drains money from more productive sectors of the economy. Specifically, estimates place the total cost of the tort system passed onto consumers in increased product costs and lost economic growth at just under $500 billion.

The American Tort Reform Association recently released a comprehensive report on the abuses of the mass tort legal system titled “The Trial Lawyer Playbook.”

Specifically, the report exposes how mass tort litigators employ everything from public relations and advertising campaigns to disseminating junk science and accepting funding from outside investors — all strategies “that keep the mass tort machine running smoothly.”

Mass tort lawyers spend a fortune on legal advertising ($6.8 billion from 2017 to 2021) because they rightly anticipate millions more in returns than costs.

Soliciting potential individual plaintiffs through familiar late-night television ads or pop-up internet advertising, the spots are often written in an intentionally misleading or vague manner to give viewers who may have little reason to believe they have suffered injury the impression that a massive payday lies ahead.

Payoffs may indeed result, but everyday plaintiffs are rarely the beneficiaries. Instead, after the lawyers and financial backers claim their shares of any settlements, often very little money remains for the clients to split.

Moreover, lawsuits often hinge on misinformation, confusing juries. Trial judges, meant to act as gatekeepers, frequently neglect to establish reasonable evidence standards. This failure allows the presentation of unreliable information as fact, mainly when hired “experts” exaggerate product risks and obscure case facts.

Here’s the kicker. These mass tort litigations are often fueled by third-party funders who provide up-front money for advertising and lead generators. Hedge funds and other large investors can make millions of dollars off the tort settlements they fuel, giving them new revenue streams impervious to the effects of stock market ups and downs.

Indeed, in 2021, close to $1 trillion was spent on more than 15 million television ads soliciting plaintiffs for lawsuits.

Accordingly, we’ve reached a point that demands corrective action. At the state and federal levels, potential remedies include the prevention of third-party funders from operating anonymously and improved measures to prevent attorneys from using junk science to influence juries.

We must collectively ensure that America’s courtrooms protect and appropriately compensate deserving private citizens rather than make mass tort attorneys and their funding partners even wealthier at victims’ expense.

Timothy Lee is senior vice president of legal and public affairs for the Center for Individual Freedom. He wrote this for InsideSources.com.