Saturday, February 28, 2015
I wanted to post a quick blurb about my testimony yesterday before the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee in the hearing on The State of Class Actions Ten Years After the Class Action Fairness Act.
Here is the Prepared Statement I submitted 48 hours in advance of the hearing.
Not surprisingly given Republicans' control of the House, of the four witnesses testifying at the hearing, I was the only one offered by the Democrats. The others were representing the US Chamber, DRI-the Voice of the Defense Bar, and Skadden Arps.
Continuing the proud tradition of "tort reformers" in spinning corporations' huge legal victories as tragic defeats, one would have never known that Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and American Express v. Italian Colors (among many other corporate victories in the Supreme Court, the Advisory Committee, and state legislatures) had ever happened. Instead, listening to the Republican-sponsored witnesses and members of the Committee and Subcommittee, it seemed instead that democracy itself, and even the world economy, were threatened by legions of liberal federal judges granting class certifications in cases in which no class members had been injured. (Yes, the new urban myth of corporate interests is the so-called "no injury" class.)
As a former litigator, it was agony sitting there and not being able to object ("Mischaracterizes the evidence!" "Assumes facts not in evidence!" "Irrelevant!") to some of the things coming out of people's mouths.
It was also depressing to calculate how much I would have earned at the going hourly rate of an attorney with my background and experience in an urban market IF ANYONE HAD BEEN PAYING ME -- which of course, no one was. (My dear law school, St. Thomas, reimbursed my measly travel expenses.)
Somehow, I doubt that the other three witnesses were appearing pro bono.
But someone has to stand up for rights of injured, cheated, and discriminated-against Americans and the plaintiffs' lawyers who represent them. I am honored to have tried my best to do so.
Monday, December 8, 2014
Although I have only a passing familiarity with the incredibly convoluted BP litigation, I predicted this summer (but not publicly), when BP filed its petition, that the Court would deny cert. BP repeatedly attempted to undo a settlement agreement that it negotiated for a year and strongly advocated to be approved at the time, and the procedural posture of its cert petition was murky.
Based on a quick reading of the cert petition, it seemed to me that BP mischaracterized both the settlement agreement and the lower courts' orders so it could manufacture a claimed "circuit split." BP characterized the class as including people who suffered no damage traceable to Deepwater Horizon, but that didn't seem accurate to me. I think that under the settlement agreement (which is 1,000 pages long and I admittedly have not read it), the claimants have to file a form that certifies that they did suffer such damage. BP, which agreed to that in the settlement, later changed its mind and said that wasn't good enough proof.
In 2012 the Court also denied cert in the DB Investments (a/k/a De Beers Diamonds) antitrust class action, which was cited in BP's cert petition. Objectors to the De Beers settlement agreement urged a similar argument that some class members had no cognizable claim.
Sunday, August 17, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Future Claimants and the Quest for Global Peace, which will appear in the Emory Law Journal. Here’s the abstract:
In the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants will not have contacted attorneys whose participation is critical to those alternative methods of dispute resolution.
In lieu of class actions and non-class aggregate settlements, this Article proposes a hybrid public-private claims resolution process designed to provide many of the benefits of global peace, while preserving the constitutional rights of future claimants and ensuring them fair compensation as their injuries manifest. Under this proposal, defendants would secure judicial approval of a fair and reasonable class action settlement of the current claims and then, through an extra-judicial process, make fair offers on comparable terms to future claimants as their claims mature, adjusted to take into account the time value of money and intervening changes in legal doctrine and medical advances. Since the class action settlement would not purport to bind the future claimants, their constitutional rights would be protected. And even though the future claimants would not be bound by the class action judgment nor obligated to accept the fair offers on comparable terms, they would have an incentive to accept them, rather than sue in tort, because they would be assured fair compensation without incurring the costs of litigation.
Thursday, July 31, 2014
A recent opinion from the California Court of Appeals perhaps illustrates the extent to which defendants have been emboldened by the United States Supreme Court's decision striking down personal jurisdiction in Daimler AG v. Bauman.
In Bristol-Myers Squibb Co. v. Superior Court of San Francisco County, No. A140035 (Cal. App. July 30, 2014), BMS filed a petition for writ of mandate to reverse the trial court's ruling upholding personal jurisdiction. The court set the scene:
Defendant Bristol-Myers Squibb Company (BMS) has been sued by dozens of California residents in a coordinated proceeding before the San Francisco Superior Court. They allege defects in Plavix, a drug BMS manufactures and sells throughout the country. Jurisdiction over BMS as to these plaintiffs is conceded. The question presented is whether California also has jurisdiction over BMS regarding identical Plavix defects claims brought by hundreds of non-resident co-plaintiffs, the real parties in interest here (RPI), in the same coordinated proceeding, consistent with the Due Process Clause of the Fourteenth Amendment.
The trial court had upheld general jurisdiction over the non-residents' claims against BMS because:
[I]t had sold in the state nearly $1 billion worth of Plavix between 2006 and 2012 and 196 million Plavix pills between 1998 and 2006, had been registered with the California Secretary of State to conduct business since 1936, maintained an agent for service of process in Los Angeles, operated five offices in California that employed approximately 164 people, employed approximately 250 in-state sales representatives, owned a facility in Milpitas employing 85 people that was used primarily for research, operated other facilities that were used primarily for research and laboratory activities in Aliso Viejo, San Diego and Sunnyvale, and had a small office in Sacramento that was used by the company’s Government Affairs group.
Despite these extensive contacts with California, the appellate court concluded that after Daimler, California could not exercise general jurisdiction over BMS because it was not "at home" in the forum.
All was not lost for the non-resident plaintiffs, however. Turning to specific jurisdiction, the court relied on Keeton v. Hustler Magazine to show that "the doctrine of specific jurisdiction can apply to the claims of a non-resident against a non-resident." Further, the court noted that although the United States Supreme Court has not yet defined "what it means for a suit to 'arise out of' or 'relate' to a defendant’s contacts with the State," California has adopted the “'substantial connection' test, under which the relatedness requirement is satisfied if 'there is a substantial nexus or connection between the defendant’s forum activities and the plaintiff’s claim.'”
The court held that there was a "substantial connection" between BMS' extensive contacts with California and the non-residents' claims of injury involving Plavix:
BMS has “deliberately exploited” the relevant market in the State (Keeton, supra, 465 U.S. at p. 781) for many years, having sold over 196 million Plavix pills in California between 1998 and 2006 and nearly $1 billion worth of Plavix between 2006 and 2012.
Further, plaintiffs allege BMS’s Plavix sales in California have led to injuries to California residents that are the same as those suffered by the RPI.
Finally, the court held that BMS had not satisfied its burden of showing that California's exercise of specific jurisdiction was unreasonable.
Hat tip: Levi Wilkes (St. Thomas J.D. Candidate 2015)
Saturday, January 25, 2014
Another update in the ongoing jurisdictional battles involving GlaxoSmithKline. Howard Bashman of How Appealing reports that the Third Circuit has allowed plaintiffs to appeal the lawfulness of GSK's diversity re-removals of state court Paxil personal injury cases more than one year after the cases were filed in state court.
Wednesday, November 13, 2013
The Fall 2013 newsletter from the ABA Mass Torts Litigation Committee has several blurbs of possible interest to Civil Procedure professors (the summaries below are in the newsletter's words), including:
By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman
Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.
Undoubtedly, the outcome of this case will impact the "jurisdictional gamesmanship" involved with the litigation of mass-torts actions.
Monday, September 9, 2013
A divided state Superior Court panel has thrown out a $14.5 million asbestos verdict awarded to the widow of a man who died from mesothelioma, determining that her counsel's suggestion of a specific sum for damages to the jury was improper and that the plaintiff's expert's testimony was inadmissable. Read more . . .
Thursday, August 8, 2013
The Judicial Panel on Multidistrict Litigation granted three Motions to Centralize and denied eight Motions to Centralize in its July 2013 Hearing Session.
MDL No. 2458 - IN RE: Effexor (Venlafaxine Hydrochloride) Products Liability Litigation (before Judge Rufe in the Eastern District of Pennsylvania)
MDL No. 2455 - IN RE: Stericycle, Inc., Steri-Safe Contract Litigation (before Judge Shadur in the Northern District of Illinois)
MDL No. 2454 - IN RE: Franck's Lab, Inc., Products Liability Litigation (before Judge Engelhardt in the Eastern District of Louisiana)
MDL No. 2469 - IN RE: Capatriti Brand Olive Oil Marketing and Sales Practices Litigation
MDL No. 2467 - IN RE: Bank of America, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2466 - IN RE: Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2465 - IN RE: JPMorgan Chase Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2464 - IN RE: HSBC Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2463 - IN RE: Fresh Dairy Products Antitrust Litigation (No. II)
MDL No. 2453 - IN RE: Adderall XR (Amphetamine/Dextroamphetamine) Marketing, Sales Practices and Antitrust Litigation
MDL No. 2456 - IN RE: Kashi Company Marketing and Sales Practices Litigation
Saturday, July 13, 2013
Nineteen plaintiff families filed a single complaint against Pfizer and other pharmaceutical companies in state court in West Virginia, alleging that Zoloft caused birth defects to children born of women ingesting it. Only one of the plaintiff families was nondiverse from the defendants. A West Virginia state rule required each family to be docketed separately and to pay a separate filing fee, but did not required them to fiile separate complaints.
The pharmaceutical companies removed eighteen of the nineteen families to federal court, alleging diversity jurisdiction. The district court remanded, holding that the action was really one civil action lacking complete diversity, and that the one nondiverse family was not fraudulently joined.
The Fourth Circuit held that the remand order was within the scope of 28 U.S.C. 1447(c) because it was based on the district court's lack of subject matter jurisdiction. Therefore, the remand order was not reviewable on appeal under 28 U.S.C. 1447(d).
Retired Justice Sandra Day O'Connor, sitting by designation, joined the opinion. E.D. v. Pfizer, No. 12-2188 (4th Cir. July 12, 2013).
Thursday, June 27, 2013
From The Legal Intelligencer, part 3 of 3:
Each state and federal court might have its own inviolable power to adjudicate cases and issue orders within its territory. But that does not stop judges from cooperating in the face of mass-tort litigation that arises both in state and federal court.
U.S. District Judge Barbara Jacobs Rothstein, of the Western District of Washington and a visiting judge to the U.S. District Court for the District of Columbia, said that for many years input was not obtained from state-court judges, but that has changed.
Wednesday, June 26, 2013
From The Legal Intelligencer, Part 2 of 3:
The number of mass torts filings in the United States hasn't seen a precipitous drop-off, but profit margins for the law firms defending those cases have taken a hit.
A confluence of events over the past five years has caused mass torts work, namely in the pharmaceutical space, to face increasing rate sensitivity. That has caused firms to either reconfigure their mass torts practices or de-emphasize the work altogether. Even some still involved with defending mass torts now use the once lucrative work more as a springboard for other assignments in practice areas facing less rate pressure.
Tuesday, June 25, 2013
The Philadelphia Court of Common Pleas, recently a hotbed for mass-tort litigation, may have seen its mass claims drop by 70 percent in 2012. But that does not mean that mass torts are slackening elsewhere.
Lawyers told The Legal that mass-tort cases are being filed in other jurisdictions because of the uncertainty that was created after many administrative changes were made to the Complex Litigation Center, including the end of reverse bifurcation and the end of consolidation in pharmaceutical cases.
Sunday, March 24, 2013
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
Tuesday, February 26, 2013
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)
Friday, May 4, 2012
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.
Wednesday, April 11, 2012
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.
Saturday, March 3, 2012
Sunday, February 26, 2012
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.
Friday, October 21, 2011
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.
Thursday, September 1, 2011
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.