Class Action and Mass Tort Actions

Class actions are procedural device to determine the rights and remedies of large numbers of people whose cases involve common questions of law, fact and harm suffered in areas including insurance, banking, securities, workers' rights, maritime and unfair trade and consumer protection.

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, mass tort actions involve similarly situated people whose claims are brought in one "mass tort " complaint seeking the efficiencies and economic leverage that class action's provide. 

What Are Class Actions 

A class action is a civil lawsuit brought by one person on behalf of a larger group of people who have suffered a similar harm or have a similar claim.  Class actions can be brought in federal or state courts and are used when too many people have been affected by the subject of the claim for each to file separate lawsuits frequently involving injuries resulting from hazardous products and drugs like tobacco, asbestos, Agent Orange, breast implants, and contraceptives.  

Class actions are also used in securities (e.g., fraudulent financial statements or releasing false information about stocks and other forms of market manipulation) and employment (e.g., wage/hour laws violations and mass dismissals) cases or to stop illegal or harmful practices like oil spills, manufacturing pollution, or Constitutional protection violations. 

Mechanics of Class Action Proceedings 

A lawsuit becomes a class action when a plaintiff, called the "Lead Plaintiff", files a lawsuit claiming that a harm has been suffered and requesting that the case be certified as a class action.  

To have the case certified, the Lead Plaintiff must demonstrate that:

• a legal claim exists against the defendant(s);

• a significantly large group of people have been injured in a similar way and their respective claims involve similar issues of fact and law as that of the Lead Plaintiff; and

•the Lead Plaintiff is typical of the class members, has a reasonable plan and ability to adequately represent the class, and has no conflict with other class members.  

If certified as a class action, the court will order that the class of affected people be notified including through direct mailings.  Class membership is usually automatic and, unless they choose to "opt out", everyone affected by the wrongdoing will be part of the case.

Unless they have evidence to offer, class members generally are not involved in the case nor the settlement negotiations.  Instead, the Lead Plaintiff consults with the class action attorneys to develop the case's strategy (including and accepting settlement offers) and other class members only may choose to accept or opt out of the settlement.

 

Class Action Recoveries 

Because few class actions proceed to trial, and often settle following class certification, a large portion of the proceeding involves forging a settlement. 

The court decides how to divide any recovery and the attorneys are given costs and fees, often calculated as a percentage of the entire recovery.  The Lead Plaintiff receives an amount partly determined by his participation, and the rest of the recovery is then divided among the class members.

Mass Tort Actions 

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, many disputes involve similarly situated people whose claims are brought in one "mass action" complaint seeking the same efficiencies and economic leverage as if a class had been certified. 

Because they operate outside class action's detailed procedures, mass torts actions can pose special difficulties.  For example, unlike a class action settlement, which follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice, a uniform method for settling all mass tort claims may not exist.  

Some states permit plaintiff's counsel to settle all mass tort plaintiffs claims according to a majority vote while others require each plaintiff to approve the settlement of that plaintiff's respective claims.

Construction Accidents

People working in construction are exposed to tremendous hazards and dangers with thousands of construction workers seriously injured or killed each year. 

Despite state and federal regulations, as well as industry standards, requiring owners, general contractors and subcontractors to implement a wide variety of safety measures, each year U.S. workers experience 6,000 job related deaths and 5.7 million occupational injuries, illnesses and accidents. 

Because of nearly daily changes at construction sites, construction accidents require early legal intervention and investigation.

General Construction Site Accidents 

Each year more workers are hurt and killed doing construction than in any other industry.

Construction site injuries frequently result from objects or workers falling from elevated areas,  workplace motor vehicle machinery and equipment accidents (including trucks, cranes and forklifts), electrocution, fires, explosions, exposure to harmful substances and environments, a lack of excavation shoring, and unsafe ladders.

Construction Site Falls and Scaffolding Accidents

The most common causes of construction site catastrophic falls and deaths include unprotected sides and wall openings, holes in floors and unguarded protruding steel rebars, and falls off the edges of - - or holes in - - roofs.

An estimated 2.3 million construction workers work on scaffolds and each year 4,500 workers are injured in - - and 60 die as a result of - - scaffolding accidents.

Scaffolding accidents often involve falls due to lack of fall protection, instability or overloading caused scaffold collapse or tip-over, or being struck by falling tools, work materials or debris.

Structural Collapse Accidents

Structural collapses occur both in existing structures or structures being built.

For buildings under construction, structural collapse accidents require examining construction codes and blueprints to determine:

            ° whether structure was being built properly according to its design or if it's design was                             improper;  

            ° were the foundation and building materials appropriate;

            ° was the building properly braced during construction; and

            ° was it engineered to be structurally stable.

For an existing structure's collapse accident investigation involves ascertaining the structure's age, how well it was maintained, and whether owner was aware of any potential safety hazards and, if so, what it did - - or failed to do - - to address these dangers.

Liability and Damages in Construction Site Accidents

Workplace injuries range from broken limbs to severe brain and spinal cord injuries to death. 

Further, construction site injuries often devastate the injured worker's family members whom may have depended on his income and now are responsible for his care. 

The property's owners, general contractors, contractors, construction managers, construction companies and equipment manufacturers may all be liable for compensation for pain and suffering, emotional trauma, medical costs, lost income and future earnings.

Defective Road Conditions

Sometimes it's the road - - and not the driver or vehicle - - that causes the car accident.
 

The American Society of Civil Engineers' ("ASCE") “2010 Report Card for Pennsylvania’s Infrastructure” gave our roads - - which are the state and local municipalities' responsibility - - an overall D-minus grade rating 38% of Pennsylvania's roads as "fair" or "poor".

 

Defective road conditions like potholes and sinkholes can cause a driver to lose control of his vehicle leading to accidents resulting in serious personal injury or death.

 

Accident Causing Defective Pennsylvania Roads

 

According to ASCE, Pennsylvania's 40,000 miles of state roads and 76,000 miles of local roads are among the nation's oldest and have exceeded their design capacity including cracking and expanding because of temperature and weather changes and rapidly deteriorating due to chemicals used for snowy/icy conditions.

 

Further, ASCE says that 27% of Pennsylvania’s 22,280 bridges are structurally deficient deeming 17% as "functionally obsolete".

 

Potholes, crumbling roads giving way to soft shoulders, drainage problems causing water or ice hazards, and other defective roadway conditions can lead to car accidents, injury and death.

 

Governmental Liability for Defective Road Conditions

 

Although Pennsylvania’s Sovereign Immunity Act generally bars suits against the government, dangerous highways conditions created by potholes, sinkholes or similar conditions are exempted.

 

Thus, the Commonwealth and local governmental entities are liable if the dangerous condition creates a reasonably foreseeable risk of injury that’s suffered by a motorist and the government had actual written notice of the "dangerous condition" sufficiently prior to an accident to protect against it.

 

Pennsylvania law allows lawsuits against the government seeking damages for past and future loss of earnings and earning capacity, pain and suffering, and medical and dental expenses and loss of consortium.

 

Unlike most personal injury claims, lawsuits against government entities for injuries caused by dangerous road conditions require written notice of the claim made within six (6) months of the accident.

 

Product Liability for Defective Road Conditions

 

If a defective product - - such as asphalt or pavement supplied by a private contractor - -was a “substantial factor” in causing the injury, a product liability lawsuit may be filed.

 

Anyone in the product's chain of distribution can be held liable, including manufacturers, wholesalers, distributors, and retailers.

 

Further, because Pennsylvania is a “strict liability” state, claimants need not show that someone’s negligence caused their property damage or personal injury.  Instead, claimants must only show the defect's existence and its relationship to the harm that was caused.

Teleradiology: Misleading Patients As To Who is Reading Their Film

Although patients know that hospitals have third parties perform laboratory testing, few question the source of their CT scan's reading.

However, recognizing the financial advantages of outsourcing radiological services, hospitals have begun to outsource both beyond their own institution and the United States' borders.

Beyond misleading patients as to whom is providing their care, a patient injured through a teleradiologist not subject to the hospital's credentialing requirement suboptimal reading may have corporate negligence and informed consent claims case against the hospital.

What is Teleradiology

As a result of technological improvements, imaging can be easily transmitted to remote locations preventing physicians from travelling back to the hospital to interpret a study or film that could be done on their home computers.

When teleradiology studies are provided by a Pennsylvania-licensed radiologist directly affiliated with the institution at which the patient is receiving care, teleradiology can be a cost-effective way of improving patient care.

Unfortunately, because digital technology also enables transmitting the images anywhere around the world, overseas radiologists are often used to do interpretations.

Beyond the lack of communication between the clinician and doctor reading the study, the interpretation-providing-overseas-physician's frequent lack of credentials makes teleradiology an inferior form of care.

No Current Bar Against Teleradiology

Although patients and their families often select an institution based on its overall reputation, hospitals are not presently required to disclose the practitioner's interpreting the radiology studies location and credentials.

Further, to get around Medicare's refusal to pay for medical services performed outside the United States, offsite radiology services often perform "preliminary interpretations" contracted and paid for by a local radiology group servicing the hospital which follows up the with a "final reading" that is billed to Medicare.

"Corporate Liability" and "Lack of Informed Consent" Claims

Although there is no presently recognized requirement that treatment recommendations conveyed to the patient or family include a disclosure that they are based upon interpretations provided by practitioners not directly affiliated with the hospital or located in the United States, patients injured as a result of a teleradiologist's suboptimal reading may have corporate negligence and lack of informed consent claims against the institution.

In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), Pennsylvania's Supreme Court recognized that hospitals are directly liable to patients under the doctrine of corporate liability establishing a duty that the hospital owes directly to the patient to oversee all persons who render care and to adopt adequate policies ensuring quality care.

Because corporate liability involves hospital's direct negligence (as opposed to vicarious liability for hospital employee's act) and is based on the institution's negligent acts arising from its policies, an injured party need not establish a doctor's negligence to prevail under a corporate liability theory.

Further, in 2002, Pennsylvania's law of informed consent was legislatively changed to include misrepresentation where a patient was misled as to the doctor's training, experience or credentials.

The use of teleradiology without full disclosure is no less misleading to a patient than a surgeon exaggerating his or her experience performing a procedure and goes to the heart of a hospital's duty to its patients.

Marcellus Shale Accidents

The shale gas industry's rapid expansion has introduced risks of serious accidents, explosions, worker injuries, property damage and environmental harm. 

Specifically, Marcellus Shale exploration and drilling causes industrial accidents including well blowouts, fires, methane leaks, loss of well control and gas migration.

 

Marcellus Shale 

Marcellus Shale -- a deep underground rock formation extending from Ohio and West Virginia into Pennsylvania -- holds the United States largest natural gas reserve comprised of hundreds of trillions of cubic feet of natural gas.

 

Although geologists have known about this massive reserve for years, recent drilling innovations including hydraulic fracturing ("Fracking"), coupled with higher energy prices, have greatly increased mining of Marcellus Shale natural gas.  

According to the Pennsylvania Department of Environmental Protection, 2,500 Marcellus Shale drilling permits were issued between 2007 and 2009 and 5,000 permits were issued in 2010.

 

Fracking

 

Each project involves constructing a "well pad" and drilling a "well bore" to depths of up to 6,000 feet.

 

The majority of Marcellus Shale wells use “fracking”, high pressure pumping of millions of gallons of chemically-treated water mixed with sand deep into the ground to break up the shale and release trapped natural gas.

 

Because it involves withdrawing millions of gallons of freshwater, contaminates water and groundwater wells and results in improper drilling fluid and wastewater disposal, Fracking raises significant environmental concerns.

 

Drilling fluid wastewater spills or leaking into holding pits pollutes rivers, streams and aquifers killing fish and contaminating local water supplies.

 

Marcellus Shale Accidents 

The oil and gas exploration industry's growth has strained existing state regulatory safeguards exposing property owners, businesses and workers to accidents, injuries and environmental damage.

Drill operators often encounter unexpected natural gas pressures in areas that haven’t been drilled previously causing blowouts and injuries.  Further, sparks from a drill bit can ignite trapped methane, a highly volatile gas, severely burning workers.

 

Natural gas also migrates underground from improperly constructed wells, building up to explosive pressure beneath houses and buildings.

 

Injuries in a Marcellus Shale well drilling accident often result from the employer's negligence or lack of workplace safeguards.  

Further, those whose property is damaged or contaminated by well drilling, may have claims against a drilling rig operator or gas exploration companies.

Texting-While-Driving Accidents

The National Highway Traffic Safety Administration describes sending or reading a text message while operating a motor vehicle as “by far the most alarming distraction” leading to death, injury and property damage on our nation’s highways.

Beyond forming a crime, texting-while-driving is negligence the victims of which are entitled to be compensated for their injuries and financial losses.

Texting-While-Driving Accidents

According to the U.S. Department of Transportation ("DOT"), texting while driving creates a 23 times greater crash risk than driving while not distracted.

According to the DOT, sending or receiving a text removes a driver’s eyes from the road for approximately 4.6 seconds, which, when traveling at 55 miles per hour, is like driving the length of a football field blindfolded.

Further, due to immaturity and lack of experience behind the wheel, younger drivers are more likely to text while driving with 23% percent of a 2011 AAA Foundation survey respondents between 17 and 26 admitting that they or their friends texted while driving.

The Pennsylvania Department of Transportation revealed that 13,000 crashes occurred between 2005 and 2010 involving 16 to 19 year old distracted drivers resulting in 60 fatalities. 

Texting-While-Driving is a Crime in Pennsylvania

Because of the dangers posed by distracted driving, it is a crime in Pennsylvania to use a cell phone,  IPAD, or portable computer to send, read or write a text message, instant message, email or other written communication while operating a vehicle. 

Because texting while driving is a form of distraction that a driver chooses, texting accidents comprise reckless or negligent driving. 

If a texting driver causes death, injury, or property damage, crash/collision victims have the right to seek compensation for their losses.

Handling Texting-While-Driving Cases

Most critical to prevailing in a texting-while-driving accident case is conducting an independent investigation to determine how the accident occurred including obtaining cell phone records to ascertain whether a driver was texting at the time of the crash.

The Schain Law Firm works closely with a network of medical experts, economists and life-care planners who can fully document the extent of a texting accident victim’s injuries and financial losses.

Black-Box Recorders in Automobiles

Most drivers are unaware that their vehicle is equipped with a “black box” gathering information regarding the events immediately before and during a motor vehicle accident.
Eighty five percent (85%) of current automobiles have event data recorders (EDR), more commonly known as black boxes, installed in them.

The National Highway Traffic Safety Administration (“NHTSA”) defines an EDR as a device recording a “vehicle's dynamic, time-series data during the time period just prior to a crash event or during a crash event, intended for retrieval after the crash event."

On March 14, 2012, the U.S. Senate passed “Moving Ahead for Progress in the 21st Century Act” (“MAP-21”), a transportation bill making event data recorders mandatory in all new cars and there is pending Pennsylvania EDR legislation - - the Pennsylvania Motor Vehicle Event Data Recorder Act - - currently under review by the Committee on Transportation.

While those protective of privacy may not support a law making black boxes mandatory, in all vehicles, data obtained from an EDR can help establish liability and deconstruct a motor vehicle accident streamlining accident claims and litigation processes, facilitating prosecution of drivers disobeying traffic laws and resulting in improved vehicle and roadway design.

Background on Black Boxes in Cars

Although historically identified with airplane crashes in which downloaded data was used by aircraft accident investigative engineers, the use of black boxes in automobiles dates to the early 1970s, when the National Transportation Safety Board (“NTSB”) recommended that automobile manufacturers and the NHTSA use onboard sensors and recorders to gather crash data.

Within a few years, General Motors began installing early versions of EDRs in its vehicles mainly used to control airbag deployment and document crash severity data.

Black boxes became more sophisticated recording data from minor accidents during which airbags did not deploy and by 2005, General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru and Suzuki were voluntarily equipping their vehicles with EDRs.

Recent Vehicular Black Box Legislation

Beyond making EDRs mandatory in all vehicles, starting in 2015, MAP-21 requires manufacturers to make EDR data accessible with commercially available equipment.

Starting with 2013 models, EDRs must keep a record of 15 discrete variables in the seconds before a crash including the car's speed, how far the accelerator was pressed, the engine revolutions per minute, whether the driver hit the brakes, whether the driver was wearing a safety belt, and how long it took for the airbags to deploy.

On March 10, 2012, the Pennsylvania Motor Vehicle Event Data Recorder Act was filed and transferred to the Committee on Transportation and requires that a manufacturer of a new motor vehicle sold or leased in Pennsylvania disclose both whether the car is equipped with ,and what type of data can be recorded by, an EDR.

The pending act also provides an outline for information retrieval, requiring consent from the motor vehicle owner to download data and provides that illegally downloaded information is inadmissible as evidence in any civil, criminal or administrative action and is insufficient to support an adjudication of the motor vehicle accident’s cause unless corroborated by other evidence.

Vehicular Black Box Data’s Impact and Privacy Protections

If made readily available, this information gathered by EDR’s will greatly affect criminal and civil cases involving motor vehicle accidents.

Specifically, accident claims and litigation processes should be streamlined for insurance companies leading to settlement and saving insurers millions of dollars in litigation fees.

Additionally, retrieved data can establish the speed of vehicles and lead to the prosecution of drivers disobeying traffic laws.

Further, increased awareness of, and accessibility to, black-box data will result in improved vehicle and roadway design and lead to safer driving.

Although previously unclear if black-box data to belonged to the car owner or to the manufacturer, MAP-21 establishes that EDR compiled data from belongs to the car owner.

Therefore, outside of a court order granting law enforcement access, where an emergency medical team needs the data, or in the event of an NTSB investigation, insurance companies would be unable to collect EDR data without owner consent.