March 24, 2013
Plaintiffs' Mass Tort Lawyer Disbarred in Kentucky
In an opinion released March 21, 2013, the Kentucky Supreme Court has "permanently disbarred" plaintiffs' mass tort lawyer Stan Chesley from practicing law in the Commonwealth of Kentucky. Chesley may face reciprocal disbarment from his home state of Ohio, where he is married to a federal judge.
The Kentucky Supreme Court held that Chesley was guilty of eight ethical violations relating to the collection of an "unreasonable" fee in connection with the fen-phen litigation.
Hat tip: ABA Weekly Journal.-PM
February 26, 2013
Trial in BP Oil Spill Case
The trial in the BP Oil Spill case began yesterday in New Orleans federal court, before U.S. District Judge Carl Barbier. Coverage at…
- AP (Michael Kunzelman)
- NPR (Mark Memmott)
- NY Times (Clifford Krauss & Barry Meier)
- Times-Picayune (Mark Schleifstein)
May 04, 2012
Preliminary Approval Granted for Deepwater Horizon Settlement
The story is reported by the National Law Journal here. The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.
Class members have until August 31 to object and until October 1 to opt out. The final fairness hearing is set for November 8.
April 11, 2012
Cheng on Trial Sampling
Ed Cheng (Vanderbilt University) has posted When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling to SSRN.
In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in which the “second best” assumption can be wrong. Under the right conditions, sampling can actually produce more accurate outcomes than individualized adjudication. Specifically, sampling’s advantages in averaging (reducing variability), shrinkage (borrowing strength across cases), and information gathering (through nonrandom sampling), can result in some instances in which ten trials are better than a thousand.
March 03, 2012
BP Oil Spill Settlement
A settlement has been reached in the Gulf Oil Spill Litigation, which was set to begin trial in Louisiana federal court on Monday. Story from the New Orleans Times-Picayune here.
February 26, 2012
BP Oil Spill Trial Delayed
The first phase of the trial was supposed to begin tomorrow before Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana. It's been delayed until March 5. Story by Rebecca Mowbray of the Times-Picayune here.
October 21, 2011
Lahav on Trial by Formula
Alexandra Lahav (University of Connecticut) has posted The Case for Trial By Formula to SSRN.
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality will improve our civil justice system.
To date, the discussion about civil litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass torts context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others are treated in similar circumstances. This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.
September 01, 2011
Summary Judgment in Fosamax Case Leaves Only One Claim Standing
There is only one federal court claim left in the 1500 case Fosamax MDL in the Southern District of New York. Although trial will begin on September 7, the judge granted partial summary judgment for Merck on several issues, including the fact that the plaintiff cannot seek punitive damages. The opinion relies heavily on the outcome of the previous cases, despite the fact that the plaintiff's injury occurred during a later time frame, thus possibly changing the facts as to Merck's knowledge of risks and defects.
This decision raises questions about not only res judicata, but the scope of "law of the case" in large MDLs in which the plaintiffs are still bringing their own suits in their own names. One wonders how this plaintiff would have fared in a non-MDL situation.
August 19, 2011
BP Oil Spill MDL Gushes On
Judge Barbier in the Eastern District of Louisiana held a monthly status conference on August 12, 2011. The minute order entered thereafter hints at a plethora of civil procedure issues going on in the cases. At one point, without further explanation, the court “reminded parties of the public website for MDL 2179.”
--Patricia Hatamyar Moore
July 30, 2011
Note on Approval and Rejection of Non-Class Settlements
Alexandra Rothman (Fordham Law Review) has posted a draft of her note Bringing an End to the Trend: Cutting "Approval"and "Rejection" Out of Non-Class Mass Settlement to SSRN.
In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand cases aggregated for efficiency purposes. Nonetheless, Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules, which provides for judicial approval of settlement in class actions, decided that the settlement was not enough. Hellerstein’s actions inspired a debate over whether judges have the authority to approve or reject settlements absent class certification. This Note continues this discussion, and in doing so, contends that the 9/11 “rejection” was part of a larger trend of judges “approving” non-class mass settlements, even though the Federal Rules do not sanction such conduct. In presenting this trend, this Note discusses three examples of non-class action, multidistrict litigation before turning to the 9/11 settlement. This Note concludes that judicial “approval” and “rejection” of settlement, although a pragmatic response to the burdens of mass litigation, is inconsistent with the Federal Rules and adversarial system, and therefore, courts should bring an end to this practice.
May 16, 2011
Campos on Mass Torts and Due Process
Sergio Campos (University of Miami) has posted Mass Torts and Due Process to SSRN.
Almost all courts and scholars disfavor the use of class actions in mass tort litigation, primarily because class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court has stressed the importance of litigant autonomy in other contexts, most recently in decisions involving the Rules Enabling Act, preclusion, and arbitration. Indeed, this term the Court will decide four cases involving class actions that will likely reaffirm the importance of protecting a plaintiff's autonomy over the claim. In all of these contexts the Court, and most scholars, have understood protecting litigant autonomy as a requirement of procedural due process.
In this article I argue that protecting litigant autonomy in the mass tort context is mistaken, and, in the process, challenge basic notions of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting litigant autonomy leads to more mass torts. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action.
I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. I argue that an interest in deterrence, understood as an individual interest in avoiding the tort altogether, should be included in the due process analysis. I also argue for a more impartial method to balance competing interests. I conclude that the law of procedural due process should permit mandatory collective procedures in mass tort and similar contexts. I further suggest that the law of procedural due process should focus less on procedural rights such as litigant autonomy, a "day in court," and even the opportunity to be heard, and focus more on often ignored aspects of procedural design.
April 21, 2011
Popper on the Gulf Oil Spill and Caps on Liability
Andrew F. Popper (American University) has posted Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability to SSRN.
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
April 09, 2011
Actuarial Litigation Symposium at UConn
Schedule and list of speakers after the jump.
Insurance Law Center Symposium
April 15, 2011
Actuarial Litigation: How Statistics Can Help Resolve Big Cases
8:00 to 9:00 Continental Breakfast
9:00 to 10:00 I. Class Actions and Regulatory Actions
- Francis McGovern, Duke University School of Law
- Edward Brunet, Lewis & Clark Law School
- Alex Stein, Benjamin N. Cardozo School of Law
- Robin Effron, Brooklyn Law School
10:00 – 10:15 Break
10:15 – 11:45 II. Aggregate Litigation and Mass Torts
- Samuel Issacharoff, New York University School of Law
- Howard Erichson, Fordham University School of Law
- Deborah Hensler, Stanford Law School
- Adam Scales, Washington & Lee Law School
- Peter Kochenburger, University of Connecticut School of Law
12:00 – 12:30 Lunch
12:30 – 1:15 Keynote Address
- Kenneth R. Feinberg, Founder, Managing Partner, Feinberg Rozen, LLP
1:15 – 1:30 Break
1:30 – 3:30 III. Accuracy in Statistical Adjudication Techniques
- Joseph B. Kadane, Carnegie Mellon University, Dep’t of Statistics
- Edward K. Cheng, Vanderbilt University Law School
- Robert G. Bone, Professor of Law, University of Texas School of Law
- D. James Greiner, Harvard Law School
- Peter Siegelman, University of Connecticut School of Law
March 21, 2011
Lahav on Redish's Class Action Book
Alexandra Lahav (University of Connecticut) has posted Book Review: Are Class Actions Unconstitutional to SSRN.
This is a book review of Martin Redish, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford U. Press, 2009).
In Wholesale Justice, Redish argues that class actions are unconstitutional and must be significantly reformed. The argument he presents is one that will surely be debated in courtrooms as well as classrooms and is especially significant given that the Supreme Court is hearing four major class action cases in the October 2010 term. After summarizing Redish's arguments, the review demonstrates that class actions are both constitutional and consistent with ideals of democratic accountability. In the end, the question is not whether the class action is constitutional (it is) but whether class actions are socially beneficial. This is a policy issue, not a constitutional one. Nevertheless, a broader point in Redish's book deserves serious attention. Too often procedures and remedies stealthily prevent the vindication of substantive rights. The appropriate solution to this accountability problem is a more robust public discussion of the relationship between rights and remedies.
March 08, 2011
Campos and Erichson Debate the Future of Mass Torts on PENNumbra
PENNumbra, the online companion to the Penn Law Review is hosting a debate about the procedural future of mass torts between Sergio Campos (University of Miami) and Howard Erichson (Fordham University).
From Sergio's opening statement:
The evolving case law on aggregate litigation, based largely on notions of notice and due process (embodied in “day in court” principles), has been met with significant criticism on both sides by reformers who claim that the system is inherently unfair or encourages wasteful litigation.
In The Future of Mass Torts... And How to Stop It, Professor Sergio Campos argues for a change in course from the current treatment of mass torts. The current model of providing each individual plaintiff a “day in court,” he suggests, ultimately undermines plaintiffs’ interests by dividing the potential recovery—and thus the litigation incentives—among the plaintiffs while leaving the defendant with the full incentive to avoid litigation. Although the Supreme Court has recently upheld plaintiffs’ right to individual litigation, due process need not be inherently inflexible. By looking to older precedent, such as Mullane v. Central Hanover Bank & Trust Co., Campos supports a “compelled, collective ownership” of claims by procedures such as multi-district litigation or the mandatory class action. Although this model may infringe on “litigant autonomy,” Campos argues that this is ultimately necessary to best protect the interests of mass tort plaintiffs.
January 24, 2011
Decision of Interest: 5th Circuit Rejects Katrina Flood Settlement
The Fifth Circuit rejected the $21 million settlement of a class action over damage caused by the levee breaches on the grounds that it did not grapple with the fairness of dispersal of funds and instead "punted" that job to the special master.
December 16, 2010
BP Litigation and Parallel Proceedings
The Blog of the Legal Times has a posting today about the implications of parallel proceedings in criminal and civil court given the recent suits that the DOJ has filed against BP regarding the oil spill.
November 08, 2010
NYTimes Sunday Magazine Cover Story about BP Litigation
The Sunday Magazine of the New York TImes has a long and interesting feature on the role on organization of lawyers in the BP litigation with a particular emphasis on the personalities involved and their past association with complex litigation. A very interesting read.
October 25, 2010
3d Cir. on Preemption of Cellphone Liability Lawsuits
The Third Circuit has held in Farina v. Nokia that consumers may not sue cellphone companies over health hazards posed by cellphone radio wave emissions because this conflicts with the FCC's power to regulate the industry.
October 04, 2010
Toyota's Twombly/Iqbal Strategy
Toyota has filed motions to dismiss in many of sudden acceleration cases including a case recently filed in Virginia. They argue that the plaintiffs have failed to state a claim because they cannot identify a specific defect which caused the accelaration, therefore failing to meet the "heightened" Twombly/Iqbal standard.
The National Law Journal reports here.