Class Actions/Mass Torts

A class action lawsuit allows individual plaintiffs to group together to pursue common rights.   In order for a case to be pursued as a class action, the trial court must find that seven (7) requirements have been met.  Essentially, the court must find that the legal and factual issues that are common to the class members dominate over individual questions.  The court must believe that a class action is a more efficient and just form of litigation than the pursuit of countless individual lawsuits. 

Advantages of a class action can be significant.  The sharing of costs between many plaintiffs can make expensive litigation economically feasible.  The combination of resources of several different law firms that group together to pursue the rights of an entire class of individuals results in a greater level of resources being allocated to reaching a result that will benefit many.  The class action can level the playing field, particularly when the defendant is a large corporation with limitless resources.

A misconception concerning class actions is that whatever money is obtained will be divided equally among class members.  Such a division could lead to inequity when individual members have suffered different degrees of injury or damage.  In the majority of class actions, the division of settlement proceeds is done with consideration for the individual nature and degree of damage suffered by each plaintiff.  Formulas, damage criteria or trials relating to damages only are just some of the procedures that have been utilized to give consideration to the individual nature of damages.

The 1990's saw Weisman, Kennedy & Berris ("Weisman Kennedy") devote considerable time and resources to class action and mass tort litigation.  The firm found that the concept of bonding together large numbers of similarly wronged persons could be of great advantage to the individuals involved.  The firm started into mass tort litigation by successfully representing* over 50 clients who had been injured by an over-the-counter drug called L-Tryptophan (In Re: Showa Denko K.K. L-tryptophan Products Liability Litigation Action, MDL No. 865).  Injuries ranged from death and paralysis to excessive fatigue.

1992 saw the beginning of the national breast implant litigation (In Re: Silicone Gel Breast Implant Litigation, MDL No. 926).  The firm’s leadership role began when it was chosen to sit on the National Settlement Committee and act as Liaison Counsel for the state of Ohio.  It’s lawyers spoke at national seminars and played a significant role in the discovery process - devoting over twelve thousand (12,000) hours of lawyer, paralegal and nursing time to discovery efforts.  Weisman Kennedy represented over 700 clients.

Weisman Kennedy was also chosen to be a member of the Lead Counsel Committee in the In Re: Telectronics Pacing Systems, inc., Accufix Atrial "J" Leads Products Liability Litigation, MDL. No. 1057.  Telectronics and its Australian parent were sued for the improper design of a heart pacemaker lead.  In 1997, the firm acted as trial counsel in a summary jury trial that resulted in a verdict of $265 million against Telectronics.  Thereafter, the firm was part of the negotiating team that settled the case on a national level for $95 million.  By that time, Telectronics was out of business and had limited assets.  Commenting at the conclusion of the case on the work of counsel, Judge Spiegel stated: 

We find that the professional skill and standing of all Counsel involved on behalf of the class was highly commendable, professional and was prosecuted with a great deal of skill.

This case represents hard-fought litigation, and, in the beginning, a settlement of this magnitude appeared almost inconceivable. Class Counsel . . . demonstrated their professionalism and skill . . . aware of the strengths and weaknesses of their case.

Recognizing the extensive amount of time, services and skill . . . Plaintiffs Counsel . . . expended in this case, the Court concludes that the reputations of all of the Counsel in this action are well earned and deserved.

In Re: Telectronics Pacing Systems, Inc., Accufix Atrial "J" Leads Products Liab. Litig., 137 F.Supp.2d 1029, 1043-1044, (March 8, 2001). 

In May 2000, Weisman Kennedy acted as sub-class counsel for the people who had sustained the most significant injuries in the $4.8 Billion diet drug settlement (In Re: Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, MDL No. 1203). 

Building on past successes, the 2000’s saw Weisman Kennedy take the lead role in the In Re: Inter-op Hip Prosthesis Product Liability Litigation, MDL 1401, negotiating and overseeing the interests and rights of approximately 30,000 class members in the $1.1 Billion Settlement.   Weisman Kennedy was intimately involved in every aspect of the litigation, from document discovery and depositions to settlement negotiations.  After the resolution, Weisman Kennedy worked with the Claims Administrator to make sure that all claims were fairly and promptly processed and paid.   

In 2002 Weisman Kennedy was appointed co-lead and liaison counsel for the In Re Ford Motor Company Crown Victoria Police Interceptor Products Liability Litigation, MDL No. 1488.   The litigation involved allegations that the design of the Ford Crown Victoria Police Interceptor subjected the vehicles to unnecessary risk of explosion oftentimes with catastrophic injuries being suffered by the police officers. 

In the area of commercial and security fraud litigation, the lawyers of Weisman, Kennedy have also been active.  The firm has acted as lead or class or liaison counsel in successfully litigating a number of security fraud cases such as:  In Re: First Energy Sec. Litig., United States District Court, Northern District of Ohio, Case No. 5:03-1826 ($84.9 Million Settlement);  In Re: Phar-Mor, Inc., Sec. Litig, MDL-959; In Re Meadowbrook Rehabilitation Sec. Litig., United States District Court, Northern District of California Case No. C-93-0561 ($2.875 Million Settlement); In Re: Figgie International Sec. Litig., United States District Court, Northern District of Ohio Case No. 1:94 CV 0982 ($7.5 Million Settlement);  In Re: Gliatech Inc. Sec. Litig. United States District Court, Northern District of Ohio, Case No. 1:00 CV 2236 ($4.5 Million Settlement); In Re: Valley Systems Sec. Litig., United States District Court, Northern District of Ohio Case No. 5:92CV2124 (resolved for newly-issued common stock of Valley Systems valued at $2.7 Million, warranted to purchase 60,000 shares of Valley common stock and cash in the sum of $1.85 Million); Sherma v. Cole National Corp, et al. United States District Court, Northern District of Ohio, Case No. 1:02-2397 ($5.375 Million Settlement).  

Weisman Kennedy has also successfully sued a number of insurance companies in class actions.  Wojtkiewicz v. Blue Cross Blue Shield, involved litigation related to the improper calculation of co-payments.  Commenting on counsel, Judge Michael J. Corrigan noted: 

… plaintiff is represented by attorneys experienced in the prosecution of class action litigation who have demonstrated their ability to do so…

In the Community Mutual Insurance Company co-payment litigation, Judges Beckwith and O=Conner, in discussing the work of plaintiffs= counsel, stated:

The high caliber of Class Counsel is well reflected in the affidavits submitted by each individual attorney involved in the prosecution of this litigation.  Each attorney has established a national reputation for management of complex class actions.  Each attorney enjoys the respect of the bench and bar for his or her ability to efficiently pursue class claims and secure substantial benefits for the class.

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These cases often present difficult and complex factual scenarios, as well as legal issues of first impression.  They cannot be lightly undertaken by inexperienced counsel nor by law firms unprepared to significant expenses of litigation over long periods of time.  Both Class Counsel and their law firms are to be commended for their dedication to this case and the others that they have championed.

In Stanich v. Travelers Indemnity Company, et al., United States District Court, Northern District of Ohio, Case No. 1:06CV962, Weisman Kennedy negotiated a class settlement that provided for available class benefits of approximately $22.5 Million.   Commenting prior to the settlement upon the qualifications of class counsel,  Judge Kathleen O’Malley noted: 

As the Court has already indicated in its Order Regarding Class Certification, "[t]he Court is quite familiar with the attorneys and firms who have appeared on Plaintiffs’ behalf, all of whom are well-qualified, experienced and capable of conducting class action litigation."  (Doc. 128 at 34).  In addition, the briefing on class certification clearly indicates that the Plaintiffs’ counsel has more than adequate knowledge of the applicable law, i.e., the procedural and substantive law applicable to class action proceedings and Ohio law regarding fraudulent concealment.

Finally, the Plaintiffs’ counsels’ conduct to date, as well as the Court’s familiarity with these attorneys and firms, clearly indicates that they have sufficient resources to prosecute this action and intend to apply themselves to the task diligently.  (D.C. Docket No. 141, p. 44). 

Other examples of insurance class action cases that Weisman Kennedy has handled include: 

• Kline v. The Progressive Corporation, Circuit Court of Johnson County, Illinois (Settlement providing for class benefits in excess of $450 Million);
• Goldy v. Auto Owners Insurance Co., et al., Cuyahoga County Court of Common Pleas Case No. 03-518258 (Settlement providing for class benefits in excess of $22 Million);
• Stanich v. Travelers Indemnity Company, et al., United States District Court, Northern District of Ohio, Case No. 1:06CV962 (Settlement providing for class  benefits of approximately $22.5 Million);
• Hrnyak v. Mid-West National Life Insurance Company of Tennessee, United States District Court, Northern District of Ohio, Case No. 1:08CV2642 (Settlement providing for class benefits of approximately $6.4 Million);
• Ellens v. Genworth Life and Annuity Insurance Company, United States District Court, Northern District of Ohio, Case No. 1:08CV2640 and  Middleton v. Genworth Life and Annuity Insurance Company, United States District Court, Northern District of Ohio, Case No. 1:08CV2641 (Joint Settlement providing for class benefits of approximately $7.2 Million).

The success of Weisman Kennedy has not gone unnoticed by large multi-national corporations.   The firm’s half-century of experience in plaintiff’s litigation has also led it to devote a significant portion of its practice to defense of major corporations facing serious class action/mass tort exposure.  For example, in In Re: Welding Fume Products Liability Litigation, MDL No. 1535 Weisman Kennedy has been one of the lead firms in defending the welding rod industry.   This unique adaptation of a plaintiff’s firm has led to multiple extensive federal trials garnering national headlines.   

*Every case is different and can be evaluated only upon the facts unique to that particular case.  Therefore, information contained this Web Site concerning the results in any case may NOT be viewed as a representation, prediction, warranty or guarantee by Weisman, Kennedy & Berris of like or similar results in any other case. 

The skilled lawyers of Weisman Kennedy are available to meet you in your home or at the hospital. There is never a charge for an initial consultation. For more information about protecting your rights or to arrange for a free consultation, please contact us today at 216-781-1111 or by email.