At the MTMP Spring 2025 conference, legal professionals gathered to explore pivotal strategies for assessing new opportunities in mass tort litigation. A key session, titled “Know When to Stay or Walk Away: Strategies to Evaluate a New and Emerging Mass Tort,” focused on essential decision-making processes for attorneys contemplating involvement in this complex area of law.
Sara Papantonio, an attorney with Levin Papantonio Rafferty, led the discussion by outlining the three levels of participation in mass torts: passive, referral, and active. Each level presents unique risks and responsibilities. Papantonio described passive involvement as engaging in marketing activities without any intention of direct litigation. In contrast, referral involvement allows firms to stay connected to their clients while not managing the case files themselves.
For those opting for deeper engagement, active involvement signifies full responsibility, including trial preparations and case management—a route with which Papantonio’s firm is intimately familiar. Reflecting on her decade-long experience with multidistrict litigation (MDLs), including significant roles in opioid trials, she stressed that informed risk assessment is fundamental to successful engagement in mass torts.
Papantonio advised that the first question to consider when a new case emerges is, “What is my risk profile?” She identified four critical aspects that firms should assess: the injury type, the scientific basis for claims, the size and characteristics of the plaintiff group, and the potential damages involved. These factors collectively shape an attorney’s risk profile, helping them determine whether they should adopt a high-risk or low-risk strategy.
Drawing from her firm’s historical involvement in the national opioids litigation, Papantonio recalled that initial perceptions considered the case high-risk. However, the venture ultimately proved beneficial, culminating in over $60 billion in settlements aimed at aiding communities plagued by prescription opioid abuse.
Papantonio advised caution regarding the prevailing salesmanship often seen in the early phases of emerging torts, warning that not every new case presents the same potential as past iconic cases, such as tobacco litigation. To counteract this, her firm employs a scientific vetting committee tasked with reviewing relevant research on potential torts weekly.
“Mass tort litigation carries significant risks, and strategic thinking is essential,” she noted. By fostering thorough vetting and establishing collaborative partnerships, particularly with newer law firms, established attorneys can transition effectively from observation to active litigation roles.
The MTMP conference, according to Papantonio, serves as an invaluable platform for lawyers to hone their skills in evaluating these intricate cases. She stated, “You need to know what you are looking for and, just as importantly, when to walk away.”
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