Civil Procedure & Federal Courts Blog

Consolidating the Toyota Lawsuits: Let the Jostling Begin

Almost as predictable as the fact that Toyota is facing a multitude of lawsuits is the fact that lawyers will begin an intense campaign to determine where and how the lawsuits will be consolidated, and which lawyers will win the prize of leading the charge.

The National Law Journal reports here that around 150 met in Chicago to discuss strategies for going forward, and to jockey for who will take the lead in the litigation.  Thus far, the fault lines have developed around arguments concerning venue, with some lawyers supporting the Central District of California where Toyota has its headquarters and where a District Judge is already hearing twelve cases against Toyota, whereas others favor the Western District of Kentucky (site of a large manufacturing plant) or the Eastern District of Louisiana (MDL district extraordinaire).

RJE

New Qui Tam suit draws broad intervenor efforts from state governments

Law.com reports here about a qui tam suit concerning the quality of PVC pipes.  The plaintiffs allege that J-M Manufacturing deliberately mislead regulators and consumers with products that did not meet manufacturing standards.  The recently unsealed complaint illustrates the interesting path of some qui tam suits: (1) a government fails or declines to exercise authority; (2) private litigants file a qui tam suit; (3) governments seek to intervene in the lawsuit.

RJE

Class actions against Toyota begin

The National Law Journal reports on the several class actions that have been brought against Toyota in the wake of the gas pedal problems and recalls.  The lawsuits are consumer class actions that seek damages for economic losses stemming from reduced value of cars subject to this problem.

It looks like the lawsuits are being filed state by state with the expectation that they will then be consolidated as an MDL.  The lead plaintiffs in the lawsuits appear to be persons whose cars actually experienced the gas pedal issues.  Although these plaintiffs have not alleged personal injury, there will be some serious typicality issues given the very broad class definition that the attorneys are seeking.

While the plaintiffs face some challenges in terms of class certification and causation, there is no question that multiple billion dollar lawsuits will pose a major litigation challenge to Toyota going forward. 

RJE

9/11 Workers Cases are in Settlement Talks

The New York Times reports that the lawsuits brought by the rescue and clean up workers might be near settlement, with 12 bellwether trials nearing their start in May in the Southern District of New York .

These are largely plaintiffs whose claims arose after the Victim Compensation Fund had closed, so liability and compensation has been a delicate political and judicial matter.

RJE

New York Times article features hormone replacement therapy litigation

The New York Times article, Menopause, as Brought to You By Big Pharma features a history of regulatory and litigation issues surrounding the prescription of hormone replacement therapy drugs. The litigation centers on the Prempro cases against Wyeth (now part of Pfizer).

RJE

Wyeth v. Levine Scholarship Roundup

Earlier this year the Supreme Court rejected federal preemption of tort claims for FDA regulated prescription drugs in Wyeth v. Levine, 129 S.Ct. 1187 (2009).  Since that time several commentators have weighed in on the decision.  After the jump, I have listed the recent scholarship addressing this new case.

Robert L. Rabin, Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption

Ashutosh Avinash Bhagwat, Wyeth v. Levine and Agency Preemption: More Muddle or Creeping Clarity?

Douglas G. Smith, Preemption After Wyeth v. Levine

Barbara J. Evans, Seven Pillars of a New Evidentiary Paradigm: The Food, Drug, and Cosmetic Act Enters the Genomic Era

Hannah B. Murray, Generic Preemption: Applying Conflict Preemption After Wyeth v. Levine

Richard L. Crupp, Jr., Preemption's Rise (and Bit of a Fall) as Products Liability Reform: Wyeth, Riegel, Altria, and the Restatement (Third)'s Prescription Product Design Defect Standard

Catherine M. Sharkey, Federalism Accountability: "Agency-Forcing" Measures (Legal Workshop entry available here)

Catherine M. Sharkey, What Riegel Portends for FDA Preemption of State Law Products Liability Claims

In the blogosphere, our friends over at Drug and Device Law Blog have written extensively on their view of the decision.

RJE

Swine Flu Vaccine Litigation

Last week saw the beginning of the delivery of vaccines for the H1N1 or "swine flu" virus.  Perhaps the only thing more predictable than the worry that we will not have enough of the vaccine are the lawsuits that have already been filed.

In New York state court, a group of health care workers has filed a lawsuit alleging that mandatory vaccination of all health care workers violates their civil rights.  The judge granted a temporary restraining order and has scheduled a further hearing for next week.

Another lawsuit filed in the D.C. Circuit challenges the licensing of the vaccines, alleging that the vaccines are untested and unsafe.

These cases, along with any lawsuits alleging actual injury from receiving the injections, are sure to raise issues of interest to civil procedure and federal courts scholars, from possible consolidation of a mass tort, to potential application of the 1986 National Childhood Vaccine Act (42 U.S.C. 300aa 1-34), and preemption issues.

Stay tuned for further developments in this field.

RJE