I am often asked about what a class action is and if a claim against a pharmaceutical company fits within a class action. This is an often misunderstood area of the law. We all see the commercials on television for folks who have taken one drug or another that may have caused adverse side effects that either the patients were not warned about or, because of the design, the drug caused.

The most notable of these types of claims that folks may remember were the diet drug Fen-Phen and the pain medication Vioxx. Both of these drugs were blockbusters for their companies, and both drugs led to major health issues that spurned lawsuits across the country. These lawsuits ultimately led to a settlement after several trials in which both sides got to test the juries’ reactions to the claims.

None of these cases were class actions. In fact, they are known in the legal world as mass torts.

A tort is a legal term that means a wrongful act that leads to a civil claim. A civil claim means money damages for harms caused. Someone who causes a car accident has created a tort; a grocery store that has a dangerous floor spill and does not warn customers who then slip and fall has created a tort. A mass tort is harm created on a large scale.

So the big difference between a mass tort and a class action? Each case is handled and evaluated individually. In a class action, the individual members of the “class” are presented collectively as a group. Often in a class action, the individual harm is small, such that it would not be economical for an individual to pursue, but as a group it would be. A good example of a class action was a recent settlement by Bank of America in which folks recovered a settlement for being overcharged on fees. The recovery for some folks was as small as $10.00. That was handled as a class action.

Drug litigation cases are handled individually, but if there is a settlement, then often the entire group will be treated as a whole. Folks could either opt into the settlement or through advice of their lawyers; they could pursue the cases through a jury trial.

Some of the current mass tort cases you may hear of in the news are the transvaginal mesh claims or bladder sling claims, metal on metal hip claims, and Lipitor claims. It has been alleged that in each of these cases the manufacturer knew of some risks or did not test these drugs or devices, and they have led to great harm. These types of cases are not claims or lawsuits against the doctors; they are against the company who manufactured the drug or device.  These cases are handled on an individual basis and are not class actions.

It is important to speak with an experienced attorney about these types of claims. Most attorneys will offer a free, confidential consultation to discuss your individual claim.


Ben Whitley is a personal injury attorney in Raleigh who represents clients throughout the State of North Carolina. He focuses his practice on catastrophic injury cases and medical device claims.