www.lexpert.ca 7
is typically a class-wide release, and defen-
dants know that no future claims will be
brought involving the product at issue. In a
mass tort settlement, defendants and plain-
tiffs have the challenge of not knowing what
is still out there.
"at release will effectively operate to
bar future claims that may be brought by
individuals who do not participate in the
settlement program and who haven't other-
wise opted out," says Linley.
"How long the tail is, what future claims
may still be brought, and how those may be
managed, is a complex analysis that oen
is made without all the necessary informa-
tion that one may want to have on both the
plaintiff and the defendant side."
e same principle that applies in a
class-wide release creates a situation where
the plaintiff 's lawyers may repeatedly need
to argue the same issues, says McCartney.
When trying a case as a class action, the
court will deal with the common issues in
a common issues trial before addressing
individual issues. If litigating the case as a
mass tort, there is no common-issues trial
that binds the whole class.
"If you're doing it as a mass tort, you
might have a group of 100 cases, but that
may not be the totality of what would
have been the class," she says. "So, litiga-
tion lawyers could be trying issues over
and over again, having to call experts
multiple times."
"For mass tort
litigation, there's
no legislation. We
have to work within
the existing rules
of civil procedure
and use things
like consolidation
and joinder, and
tools like case
management, in
order to bring those
actions along"
Peter Kryworuk,
LERNERS LLP
1-866-685-3311 | www.mcleishorlando.com
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