Tuesday, October 31, 2006
Article in the New York Times -- Supreme Court Hears Tobacco Case, from the Associated Press:
The Supreme Court grappled Tuesday with whether to allow a $79.5 million verdict
against a cigarette company, a case that business groups are pointing to in asking
the justices to clamp down on large damage awards.
Mayola Williams was in the crowded courtroom to hear the justices discuss the
judgment that an Oregon jury imposed against Altria Group Inc.'s Philip Morris USA
in connection with the death of her husband, Jesse.
A two-pack-a-day smoker of Marlboros for 45 years, Jesse Williams died of lung cancer
nine years ago. Mayola Williams followed through on a promise she said she made to
her husband and sued Philip Morris, which makes Marlboros, for fraud. She won.
The article goes on to discuss the oral argument in some detail. The New York Times also provides a webpage linking the briefs submitted and opinions below.
The Washington Post's related story is Philip Morris Asks Court for Relief: Cigarette Maker Challenges $79.5 Million Damage Award, by Charles Lane.
The United States Supreme Court has posted the transcript for today's punitive-damages oral argument in the Philip Morris v. Williams case. Andrew Frey argued for Philip Morris, and Robert Peck argued for Williams.
Monday, October 30, 2006
The Supreme Court hears oral argument tomorrow in Philip Morris v. Mayola Williams, concerning due process limits on punitive damages. Because the appeal addresses whether a jury may punish a defendant for harm to non-parties, it may prove enormously significant for punitives in a wide range of mass torts including asbestos, Vioxx, and Prempro, as well as in civil rights and consumer fraud cases. For those interested in a preview, here are a few useful links:
Here at the Mass Tort Litigation Blog, you can find info on the case here (with link to Sebok analysis), here (with news report), and here (with link to audio for the argument in State Farm v. Campbell). Here's the Oregon Supreme Court decision. Oyez will have the oral argument audio when it becomes available, and has an abstract. Medill has a handy case summary, and Tony Mauro wrote a Legal Times article on the upcoming argument. The Tobacco Control Resource Center provides an anti-tobacco perspective in its case backgrounder. Ted Frank, skeptical of aggregated punitive damages, wrote an analysis for the American Enterprise Institute and offers additional links on Point of Law here and here. Among law blogs, you'll find the Williams case addressed at Products Liability Prof Blog, at TortsProf, at ScotusBlog, and at WSJ Law Blog.
Sunday, October 29, 2006
The Philip Morris USA v. Williams oral argument in the United States Supreme Court, scheduled for this Tuesday, October 31, concerns the constitutional limits for punitive damage awards. In advance of that argument, one might be interested in listening to the oral argument in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the prior Supreme Court decision governing punitive damages. Sheila Birnbaum of Skadden Arps argues on behalf of State Farm, and Laurence Tribe of Harvard Law School argues on behalf of Campbell.
Article in the New York Times -- Damage Limits at Stake in Tobacco Appeal, from the Associated Press:
The question of whether juries should be allowed to award massive punitive
damages is at stake when the U.S. Supreme Court hears arguments over an
$80 million verdict against tobacco giant Philip Morris.
The Oregon case is widely seen as a test of how the court will interpret previous
cases on punitive damages -- the additional money intended to punish a company
or individual for their behavior and act as a deterrent.
Two key cases have suggested there should be a limit of 9-to-1 or less on punitive
damages compared to actual or compensatory damages, intended to simply restore
any financial or economic losses.
The ruling in Philip Morris v. Williams -- scheduled for oral arguments Tuesday --
may have a sweeping effect on jury awards beyond the tobacco industry, attracting
intense interest from corporate America and trial attorneys.
Article in the New York Times: No Clear Answers in E. Coli Infections, from the Associated Press. The article provides an interesting overview of the development of the spinach e. coli infections and the investigative work of government agencies to stop it. Here's an excerpt:
Like lab technicians on a crime-scene television drama, investigators have tracked a
strain of bacteria over thousands of miles -- from bagged spinach in Midwestern
refrigerators to the guts of a wild pig in the hills of California's central coast.
While they may never pinpoint the exact source of the strain of E. coli blamed for
killing three people and sickening more than 200, they have come closer than ever
before. And experts say the investigation has yielded valuable clues for preventing
''We've completely overhauled the way we test and package greens,'' said Samantha
Cabaluna, a spokeswoman for Natural Selection Foods LLC, the company that packaged
the tainted spinach. ''Regardless of the source or method of contamination, we're better
prepared to catch it.''
Saturday, October 28, 2006
Article in today's New York Times -- Mayor Expands Search for 9/11 Remains, by David W. Dunlap:
The Bloomberg administration said yesterday that it would cast a net well beyond
ground zero, from Broadway to the Hudson River, from the bottom of manholes
to the top of nearby skyscrapers, in its search for human remains from Sept. 11, 2001.
The chief medical examiner is to inspect the roofs of the Millenium Hotel and 1
Liberty Plaza, opposite the World Trade Center site. Tiny bone fragments may be
found there, mixed in with the stone ballast, as they were atop the former Deutsche B
ank building, according to a report prepared for Mayor Michael R. Bloomberg.
Key downtown redevelopment agencies have headquarters in the 53-story Liberty Plaza
tower. It is also where victims’ family members can visit privately in a room set aside
for them on the 20th floor.
Wednesday, October 25, 2006
Article in the New York Times -- Altria Moves Closer to Spinoff of Kraft Foods Unit, by Andrew Martin:
The Altria Group moved closer to spinning off its Kraft Foods unit yesterday, despite
concerns about tobacco litigation, saying it would make a final decision on Jan. 31.
During a conference call with analysts, Altria’s chief executive, Louis C. Camilleri, said
that the board had carefully weighed the risks and rewards of a sell off and had decided
to proceed. The precise timing of the sale is to be announced at the company’s January
Altria is the parent company of Philip Morris USA and Philip Morris International.
“I think today’s announcement clearly shows to the world that the board is comfortable
with the entire litigation environment and is therefore prepared to move forward,”
Mr. Camilleri said.
Article in the New York Times -- Safety of Neck Stents Debated, by Barnaby J. Feder:
While safety concerns in the $6 billion heart stent market have taken top billing
at the annual meeting here of thousands of doctors who implant such devices,
doctors who have been using a similar type of stent in neck arteries to reduce
stroke risks are also on the defensive.
The flashpoint for debate was the recent publication in two prestigious medical
journals of studies from Europe questioning whether the neck stenting was as safe
or effective as the traditional therapy, a form of surgery known as an endarterectomy.
Those studies found a higher rate of strokes and deaths among patients who received
the neck stents. Doctors at a news conference here today responding to those reports
said both studies had flaws that made their conclusions unreliable.
Article on cnn.com -- Study says lung scans may find cancer earlier in smokers, save lives. The study could have potentially interesting implications for medical monitoring claims for smokers. Here's an excerpt:
A controversial new study offers the strongest evidence yet that screening smokers
for lung cancer with computerized chest scans can save lives, much as mammograms
do for women with breast cancer.
Doctors have long had doubts that early detection of tumors could improve survival,
and also feared that screening would lead to too many false alarms and unnecessary
biopsies. Scans are not now recommended, but many smokers have been paying for
them on their own for their peace of mind.
The new study strongly suggests there is a survival benefit. But it does not prove the
point, because it lacked a comparison group, many scientists say.
On October 10, New Jersey centralized its state court litigation over Johnson & Johnson's Ortho Evra birth control patch. Plaintiffs allege that the contraceptive increases the risk of blood clots. Here's the Notice to the Bar and the accompanying announcement:
On October 11, 2006, the Supreme Court designated all litigation, pending and future, involving the Ortho Evra Birth Control Patch as a mass tort and assigned it for coordinated, statewide handling in Middlesex County by the Honorable Bryan D. Garruto. This litigation involves claims against the manufacturer and others of this pharmaceutical for damages allegedly caused by its use.
This statewide centralization comes well after the federal MDL transfer. On March 1, 2006, the Judicial Panel on Multidistrict Litigation transferred all federal court Ortho-Evra cases to Judge David Katz in N.D. Ohio.
The Supreme Court will hear oral argument on October 31 in Philip Morris v. Williams, concerning constitutional limits on punitive damages in the context of a tobacco wrongful death case. The Oregon Supreme Court upheld the jury verdict of $821,000 in compensatory damages and $79.5 million in punitive damages. In other punitive damage cases, the Justices have been split on due process constraints, so the views of newcomers Chief Justice Roberts and Justice Alito may determine the outcome and shape the analysis. For mass tort litigation, the case is particularly important, because it raises not only the issue of excessiveness (especially, how strictly the Court will enforce the single-digit ratio approach of State Farm v. Campbell), but also the critical issue of whether due process permits punitive damages that take account of harms to nonparties. Here's an article on the Williams case in this week's National Law Journal, Court Revisits Punitives, and Tony Sebok's analysis at Findlaw, Part One and Part Two.
Tuesday, October 24, 2006
Article in today's New York Times -- New Safety Data on Stents Fails to Settle Debate, by Barnaby J. Feder:
New safety data presented here today at a conference for doctors who implant
cardiovascular stents did little to settle the debate over whether the devices are
being used too often and in the wrong patients.
By the end of the day, the consensus of many of the experts appeared to be that
the long-terms risks of deadly clotting from drug-coated heart stents had been
exaggerated in recent weeks.
And yet, the experts on a number of panels concluded that the emerging data
required a more cautious approach to stenting. For at least the two best selling
drug-coated brands, Boston Scientific’s Taxus and Johnson & Johnson’s Cypher,
many experts agreed, there appears to be a long-term clotting risk compared
with the use of older bare metal stents.
Article on cnn.com -- Appeals court slows 'light' cigarette case, from Reuters:
A federal appeals court granted a temporary stay Tuesday while it hears arguments about
whether a $200 billion tobacco trial can proceed as a class-action lawsuit.
The U.S. 2d Circuit Court of Appeals granted a temporary motion so that lawyers for the
tobacco companies could appeal a September decision by U.S. District Judge Jack B.
Weinstein granting class-action status to a lawsuit brought against them by "light" cigarette
The smokers sued claiming the tobacco industry's marketing of light cigarettes misled them
into believing that the product was healthier than regular cigarettes.
Article on cnn.com -- Statins may help smokers' lungs, study finds, from Reuters:
Statin drugs, which have become the world's No. 1 selling drugs by cutting cholesterol and
the risk of heart attacks and stroke, may also slow the lung damage done by smoking, U.S.
researchers said Monday.
Current and former smokers who used statins lost less of their lung function than those who
did not, researchers told a meeting of the American College of Chest Physicians.
"Until now, no medication has shown to slow smoking-induced lung damage," said Dr. Walid
Younis of the University of Oklahoma Medical Center, who led the study.
John Witt has an interesting op-ed in today's New York Times -- First, Rename All the Lawyers -- putting ATLA's impending name change in historical context. After Election Day, the Association of Trial Lawyers of America will become the American Association for Justice. Witt notes that the group's "vaguely Orwellian" name change is not its first. Started in the late 1940's by workers' compensation lawyers as the National Association of Claimants' Compensation Attorneys (NACCA), it became the National Association of Claimants' Counsel of America (still NACCA) in 1960 to reflect its members' extension beyond workers' comp to more lucrative personal injury tort cases. In 1964, it became the American Trial Lawyers Association (ATLA), as "the lawyers had left the compensation system behind altogether for the free-wheeling, high-risk and high-return world" of tort litigation. In 1972, after a challenge from the American College of Trial Lawyers, the association renamed itself the Association of Trial Lawyers of America (still ATLA).
Witt sees the "trial lawyers' struggle for identity" as "a near-perfect parable for the course of American politics since the 1930's":
As American politics has changed, so have the trial lawyers. They began as cogs in the wheels of the New Deal's bureaucratic machinery. They became legal entrepreneurs, identifying creative ways to produce higher awards for their clients in the courts and line their own pockets in the process. Thanks to mass torts cases arising out of things like cigarettes and asbestos, the association's membership includes some of the wealthiest lawyers in the country.
Witt concludes with skepticism -- which I share -- that the new name will alter Americans' perception of trial lawyers. America has a love-hate relationship with tort litigation. Americans look to tort litigation as a semi-private regulatory regime, but don't embrace the entrepreneurial spirit that allows trial lawyers in general, and the mass tort plaintiffs' bar in particular, to play an increasingly significant regulatory role.
Monday, October 23, 2006
ALI-ABA is hosting a conference on Asbestos Litigation in the 21st Century on Nov. 30-Dec. 1 in New Orleans. The program features law professors Deborah Hensler and Lester Brickman along with an impressive cast of asbestos plaintiffs' lawyers, defense lawyers, judges, and experts.
Based on Merck's report last Friday, Wall Street Journal reporter Heather Won Tesoriero noted on the WSJ Law Blog that Merck's legal expenses defending against Vioxx claims amount to over $1 million per day: "Thus far this year, the company has spent $325 million on legal costs for Vioxx. By our math, that’s $1.11 million a day from Jan. 1 to today."
Tesoriero also commented on Judge Higbee's recent order that Merck disclose its attorneys' fees for one New Jersey case:
We’ve often wondered what a single trial costs for both plaintiffs and defense. Merck hasn’t broken down its costs per trial, but earlier this week, New Jersey Superior Court Judge Carol E. Higbee ordered Merck to produce all of its legal bills and expenses in a two-plaintiff consolidated trial that resulted in a split verdict earlier this year. Under the New Jersey Consumer Fraud Act, if a jury finds in favor of the plaintiff on consumer fraud charges, the defense must foot the plaintiffs’ legal bills. Plaintiffs’ firms the Lanier Law Firm and Weitz & Luxenberg billed $5.6 million. Merck balked at paying and now Judge Higbee wants to see the company’s bills, for in camera review to determine what may be reasonable.
She invited blog readers to predict the defense costs for the trial, but so far has gotten no takers.
Sunday, October 22, 2006
Merck reported Friday that it added $598 million to its reserves for Vioxx litigation costs. The company noted that as of September 30, 2006 (two years after the drug was withdrawn from the market), it faced approximately 23,800 suits including approximately 41,750 plaintiff groups, according to this article in the Philadelphia Inquirer by Linda Johnson (AP):
The struggling Whitehouse Station drugmaker added $598 million to its reserves for future legal defense costs over its withdrawn pain reliever Vioxx, as the number of personal-injury suits Merck faces topped 24,000.
Merck had previously reserved a total of $970 million for defense costs since pulling Vioxx, its onetime blockbuster, from the market on Sept. 30, 2004. Through this September, Merck had spent $610 million.
It said that as of Sept. 30, about 23,800 Vioxx lawsuits, including about 41,750 plaintiff groups, had been filed. An additional 275 potential class-action suits claiming personal injury or financial losses also have been filed, and about 15,000 potential plaintiffs had entered agreements temporarily suspending the time limit for them to sue.
Byron Stier's post on Friday noted that with a clearer sense of the number of lawsuits (filed within the two-year period of many of the applicable statutes of limitations), Merck can better estimate its remaining Vioxx litigation costs.
Roger Parloff discusses the developments on his Legal Pad blog, including a lengthy and interesting quote from Kent Jarrell, a spokesperson for Merck's law firm, Hughes Hubbard & Reed, predicting that most of the recently filed cases will prove relatively weak. Ted Frank also comments at Point of Law.
Article in the New York Times -- As Smoke Clears, Scots Breathe Easy Behind the Bar, by Alan Cowell:
The researchers, from the University of Dundee . . . did tests on 77 nonsmoking bar
workers in and around Dundee — particularly those with asthma — examining them
one month before and then for two months after the ban. Similar research has been
carried out elsewhere, including in the United States.
What was most surprising about the study, said Daniel Menzies, its author, was the
speed with which health improved — particularly among asthmatics — and
inflammation in the bloodstream was reversed. “We didn’t expect to find that,” he
said in an interview.
In an article published in The Journal of the American Medical Association on Oct. 11,
Dr. Menzies, a clinical research fellow in the Asthma and Allergy Research Group at
the University of Dundee, said the study showed that the smoking ban “has led to a
rapid and marked improvement in the health of bar workers.”