Plaintiff litigation advertising is cynical recruitment tool to enlist potential plaintiffs in mass tort litigation. Litigation advertising furthers three primary objectives (1) enlisting potential plaintiffs in mass tort litigation (2) damaging the reputation of corporate defendants and (3) increasingly the likelihood that corporate defendants do not obtain fair trials in cases in which the advertisers have a financial stake. The most pernicious objective is the contamination of the prospective jury pool on the eve of trial.

According to Rustin Silverstein, the President of X-Ante, over $1,000,000,000 is spent each year on litigation advertising at a remarkable burn rate of 27 ads per minute. Often, these advertisements are sponsored and paid for by hedge funds, or other financial stakeholders in mass tort litigation, whose activies are not constrained by the ethical considerations that govern plaintiff counsel. These ubiquitous advertisements, often posing as public service announcement to give them an air of legitimacy, solicit lawsuits caused by pharmaceutical drugs, medical devices, asbestos and a host of other products. These advertisers may recover a sizeable return on their $1 billion dollar investment if they succeed in prejudicing prospective jurors in venires in which a major case is proceeding to trial. Research reflects that advertising is often concentrated in those markets where product liability activity is heaviest.

For example, X-Ante reported in June 2021 on a “tsunami of mass tort advertising” targeting Bayer and Monsanto’s weed killer Roundup (glyphosate). Over the past several years, advertisers launched an aggressive campaign seeking claims related to injuries, particularly Parkinson’s Disease, allegedly caused by the commercial herbicide paraquat, often sold under the brand name Gramoxone. According to X-Ante, during a three month period from February through April 2021, “over 12,000 paraquat lawsuit ads aired nationally and in over 130 media markets across the country at an estimated cost of over $970,000. An ad soliciting a paraquat lawsuit aired, on average, every 10 minutes somewhere across the United States during this three month period” (emphasis added).

In highly suggestive ads, viewers are advised that their diagnosis with Parkinson’s Disease “may be due to exposure to Paraquat, a highly toxic herbicide”. Showing physicians draped in stethescopes and wearing white lab coats huddled over patient medical charts, the announcer states that Paraquat has been “linked to a substantial increase in risk of Parkinson’s Disease” and urges viewers to call the Paraquat Legal Helpline on the television screen. Similar ads are posted on Facebook, Google, Vimeo and other social media. As a result of these advertising blitzkriegs, which often peak just prior to jury selection, prospective jurors in paraquat personal injury litigation are predisposed to believe that paraquat is highly toxic and causes Parkinson’s Disease. These advertisers hide their true agenda behind a seemingly helpful public interest facade.

In bringing this prejudice to the attention of the trial court, it is strongly recommended that the corporate defendant provide a well-documented statistical analysis of the timing and extent of television, social media, directed email and other forms of communication. A review of the case law suggests that the trial court’s remedies are limited. It is too little too late for the court to instruct jurors to consider only the evidence at trial and to ignore the weeks-long propaganda blitz that they have been watching on television or Facebook. The prejudice has already seeped into jurors’ consciousness and is ‘baked into’ their view of the corporate defendant. Remarkably, courts have been slow to recognize the prejudice that litigation advertising can create in the courtroom. In part, courts have been reluctant to act due to First Amendment concerns. However, it is necessary for corporate defendants to focus a spotlight on advertising abuses. Otherwise, there will be no demand for reforms by the bar.