Thursday, November 30, 2006
The city of Akron, Ohio earlier this month dropped its lawsuit against eight lead paint manufacturers. Here's an Akron Beacon Journal article on the withdrawal, by way of Walter Olson's post today on Point of Law. According to the article, three other Ohio cities -- East Cleveland, Lancaster, and Toledo -- still have similar lead paint suits pending, and Cincinnati and Columbus have discussed filing suits but have not yet done so. Apparently, Akron's move was a voluntary dismissal without prejudice. The city's law director explained that he wanted to step back and review the city's position, and that the city reserved the right to refile.
Olson also links to an interesting editorial in the Akron newspaper praising the city for rethinking the suit, and drawing a distinction between lead paint and tobacco:
Listen to advocates of the lawsuit, and you would think the paint industry belongs in a category with Big Tobacco. The comparison is unfair. For decades, tobacco companies denied the effects of smoking, hid unfavorable information and opposed efforts that could protect the health of consumers. For their part, the paint companies targeted by these lawsuits haven't made lead paint in years. They have not been defiant in a bid to protect their bottom lines. ...
[T]his is a housing problem that the city and property owners must address in the same way they contend with outdated electrical wiring or plumbing. They make the needed improvements. They don't run to court in pursuit of a payoff.
Wednesday, November 29, 2006
Interesting article in the New York Times -- Journal Faulted in Publishing Korean’s Claims, by Nicholas Wade. The article discusses the changes in peer review generated by the exposure of fraudulent claims about creation of stem cells by a Korean scientist. Changes in peer review would of course be significant for scientific studies relevant to mass tort litigation -- particularly the online publication of raw data. Here's an excerpt:
[T]he spectacular nature of the fraud prompted deeper than usual soul-searching on the part of leading journals.
After reviewing the paper record of how the Hwang reports were handled, a panel led by John I. Brauman, a chemist at Stanford University, yesterday recommended four changes in Science’s procedures.
A risk-assessment method should be developed to flag high-visibility papers for further review, the panel said. Also, authors should specify their individual contributions to a paper, a reform aimed at Dr. Hwang’s stratagem of allowing another researcher, Gerald Schatten of the University of Pittsburgh, to be lead author of one of the reports even though Dr. Schatten had done none of the experiments.
The panel advised online publication of more of the raw data on which a scientific report is based. It also suggested that Science, Nature and other leading journals establish common standards for reviewing papers to prevent authors bent on deceit from favoring journals with laxer standards.
Article in the New York Times -- As Atlantic City Eyes Smoking Ban, Casinos Fear Losses, by Laura Mansnerus. The impending ban is an interesting postscript to the Avallone case, in which Judge Corodemus in 1999 denied class certification to a putative class of Atlantic City casino workers suing for medical monitoring based on secondhand smoke exposure; the proposed class faltered because of individualized issues. Here's an excerpt from the article:
Here on the casino floors are the few square feet in New Jersey — indoors, anyway — where a person can go out and have a drink and a cigarette at the same time.
But that may soon change.
Less than a year after gaining an exemption from a statewide smoking ban from the New Jersey Legislature, casino owners are watching that slip from their grasp. Citing concerns about secondhand smoke, the City Council seems intent on establishing a ban of its own.
If the proposed ordinance passes, Atlantic City will see whether gamblers who smoke can be separated from their cigarettes or whether, as the owners of the city’s 11 casinos contend, they will take their business elsewhere.
The November 2006 issue of The Third Branch, the newsletter of the federal courts, features an article on the judicial burden of handling 9/11-related lawsuits. It anticipates that 6000 such cases will be filed in the Southern District of New York, representing about a sixty percent increase in the district's civil caseload. Judge Alvin Hellerstein, overseeing the litigation, has appointed a mediator and is trying to ensure that the most serious cases move forward first. For the massive number of claims alleging respiratory injury, he intends to appoint a special master, and looks toward the creation of a matrix of settlement values. Here's an excerpt from Litigation Landslide Tests Organization, Creativity:
Now cases involving claims arising out of, resulting from, or relating to the terrorist-related aircraft crashes of September 11, 2001, are being filed in federal court. The plaintiffs—alleging wrongful death, personal or respiratory injury, or property damage—may have lived near or worked on the site, and include city governments, the Port Authority of New York and New Jersey, private contractors and thousands of firemen, policemen, paramedics and construction workers. It is anticipated that 6,000 cases—all related to September 11, 2001—will be filed in the Southern District of New York, for an estimated 60 percent jump in the district’s civil caseload. As the influx of cases begins, the creativity and organizational abilities of the entire court, beginning with the clerk’s office, are being tested.
All of these cases are ultimately the responsibility of Judge Hellerstein, a native New Yorker and eight-year veteran of the federal bench. He and his two law clerks “use a lot of self-organization,” he said, to deal with the mass of litigation. All Hellerstein’s orders, announcements of conferences, and directions to counsel on the filing of correspondence are posted to the court’s website, at www.nysd.uscourts.gov/Sept11Litigation.htm. He has assigned most of the litigation to tracks and subtracks, separating the cases into, for example, a property damage track, with a subtrack that includes Building 7 claims, and another subtrack with claims among insurance companies. He also holds frequent status conferences on the cases consolidated into wrongful death airline cases, respiratory injury cases, insurance coverage cases and property damage cases, “with the goal of keeping on track and moving the cases along.” Meanwhile, discovery goes forward on a group of wrongful death cases.
But even Hellerstein feels that special handling may not be enough. Many of the wrongful death cases are being mediated with the help of a mediator specially appointed by Hellerstein upon the joint recommendation of plaintiffs and defendants. The more than 3,000 cases— with the potential of growing to 7,500—that allege respiratory injury, “are likely to become unmanageable,” he wrote, and he will be recommending to the parties the appointment of a special master. “The number and complexity of these cases, and the public interest in their speedy resolution, requires a greater urgency in progression, and a closer supervision of proceedings, than heretofore has been possible. The involvement of a Special Master has become necessary.”
Hellerstein’s idea is to have the Special Master work with the parties to develop a matrix of key facts that will enable the parties to place values on categories of cases that can, in turn, lead to groups of settlements.
He is especially concerned that the cases alleging wrongful deaths and personal injuries move forward. “They deserve to go first,” Hellerstein said, “because they involve the immediate victims who died in the airplanes that the terrorists hijacked, or in the infernos this produced.” Many of those cases are currently in mediation, an option Hellerstein encourages.
Thanks to Richard Nagareda for pointing out to me "that Philip Morris has just gained the dubious distinction of monopolizing an entire advance sheet of F. Supp. 2d." Volume 449, pages 1-1357, consists entirely of Judge Kessler's opinion in United States v. Philip Morris and Judge Weinstein's class certification opinion in Schwab v. Philip Morris. As Professor Nagareda puts it, "an amazing history of the tobacco industry, all in one advance sheet."
Tuesday, November 28, 2006
Mealey's is sponsoring a conference on The Art of Negotiation: Successfully Negotiating Mass Tort & Class Action Settlements in Los Angeles on Jan. 29-30, 2007. I'll be speaking about ethical constraints on multiparty settlements, particularly the aggregate settlement rule and the prohibition against practice restrictions. It looks like a good line-up of speakers. Some of the other participants are Richard Scruggs (who's speaking about the Sulzer hip implant settlement as a case study), Mary Ellen Nickel (who's speaking about asbestos settlement trusts), and Barry Hill, Matthew Garretson, and John Restaino (all of whom are speaking about pharmaceutical mass tort settlements).
For those of you who plan to attend the 2007 Annual Meeting of the Association of American Law Schools in Washington, D.C., several sessions hold particular interest for those who follow mass torts and other complex litigation:
I'll be speaking on Ethics in Class Action Litigation (Jan. 6), along with Amanda Frost, Alexandra Lahav, and Nancy Moore, in a program co-sponsored by the Sections on Civil Procedure and Professional Responsibility, moderated by Andrew Perlman.
The Workshop on Remedies (Jan. 3) includes sessions on Creative Remedies in Big Cases, The 9/11 Fund, Reparations for Massive and Ancient Wrongs, Aggregate Litigation Remedies, and the Political Debate Over Tort Remedies, and features a number of mass tort experts including Elizabeth Cabraser, Kenneth Feinberg, Deborah Hensler, Samuel Issacharoff, Burt Neuborne, Robert Rabin, Judith Resnik, William Rubenstein, Anthony Sebok, and Catherine Sharkey.
The Civil Procedure Section's program on The Politics of Class Actions (Jan. 4) is moderated by Margaret Woo, and includes defense lawyer John Beisner, plaintiffs' lawyer Elizabeth Cabraser, and professors Samuel Issacharoff and Linda Mullenix.
The Torts Section is running a program on European Union Tort Law (Jan. 4), moderated by Michael Green.
Hope to see many of you in D.C.
Monday, November 27, 2006
Today, in a victory for big tobacco, the Supreme Court denied certiorari in Price v. Philip Morris USA. In Price, plaintiffs filed a statewide class action in Madison County, Illinois, accusing Philip Morris of misleading smokers about the risks of light cigarettes. The plaintiffs won a $10.1 billion (yes, billion) judgment in 2003. The Illinois Supreme Court reversed, holding that the FTC had permitted tobacco companies to market cigarettes as "light" and therefore the practice did not violate the state's Consumer Fraud Act. With today's cert denial, the case comes to an end, and Philip Morris can recover the $6 billion for the bond it posted to secure the judgment pending appeal. Here's a report by James Vicini (Reuters) -- US high court won't review Illinois tobacco case.
According to this report in the Belleville News Democrat -- Asbestos lawsuits drop third year in a row -- filings of asbestos-related lawsuits have declined dramatically in Madison County, Illinois. The number dropped from 953 in 2003, to 477 in 2004, to 375 in 2005; and to 287 so far this year. Madison County is often regarded as a magnet jurisdiction for mass tort plaintiffs. The president of the Illinois Civil Justice League, a tort-reform organization, offered two reasons for the drop: judges who are making it harder for out-of-state plaintiffs to file in Madison County, and the fact that potential asbestos defendants are running out of money. A plaintiffs' lawyer offered a third explanation, that with time, there are simply fewer asbestos cases to be found.
Sunday, November 26, 2006
Article in the Chicago Tribune -- NASCAR drives in a smoke-free direction, by Sarah Talalay:
Smoking and NASCAR always seemed to go together--a natural pairing for a sport whose roots were planted as firmly in the South as tobacco farming.
For 33 years, R.J. Reynolds Tobacco Co.'s Winston brand sponsored the sport's top series. Cigarettes were given out for free by the carton at racetracks across the country. The practice encouraged a culture of smoking among race teams and fans.
But when RJR ended its sponsorship after the 2003 season--NASCAR moved from cigarettes to cellular phones with Nextel's sponsorship--it opened the doors for the maker of Nicorette, NicoDerm and Commit.
Now, instead of free smokes, fans can get educational messages and coupons for gum, patches and lozenges designed to help smokers quit.
Wednesday, November 22, 2006
Editorial in the Chicago Tribune -- A reversal on breast implants:
It took nearly 15 years, but last week, the Food and Drug Administration essentially admitted that it made a mistake when it outlawed silicone breast implants on grounds of safety, deciding to repeal the ban at last.
It's a good day for women who would like access to these devices for reconstructive or cosmetic purposes, and a good day for anyone who thinks individuals should be free to assess risks and make their own choices. But it comes a decade and a half too late for women who were deprived of a largely safe option because of fears that now turn out to be mostly groundless.
Back in the early 1990s, panic-mongers sounded alarms about all the horrors awaiting any woman getting silicone implants--cancer, connective tissue disorders, chronic fatigue and more. Even though more than a million women had them, and even though the great majority expressed satisfaction, the FDA under Commissioner David Kessler ordered them off the market. The only exception was for women getting them for reconstruction after cancer surgery, and then only in rigidly controlled, FDA-approved clinical trials. He acted against the unanimous recommendation of his agency's own expert panel.
Article in the Los Angeles Times -- Ford to pay $15 million in Explorer rollover death, by Bloomberg News "Ford Motor Co. must pay $15 million for the death of a teenager in a sport utility vehicle rollover accident, a Tulsa, Okla., a jury decided."
Article in the Los Angeles Times -- Breast implant makers, plastic surgeons expect boost from silicone, by Daniel Costello:
Plastic surgeons and the two dominant Southern California-based makers of silicone breast implants are gearing up for what they expect will be a boom in sales of the devices. The only question: How big of a windfall can they expect?
More than 290,000 women had breast augmentation surgery in the U.S. last year, most with the saltwater-filled versions that have been legal for years. With last week's Food and Drug Administration approval of silicone implants — generally considered to have a more natural look and feel — many in the industry believe a large percentage of women could quickly switch. In countries where both products are sold, silicone implants make up nearly 90% of the market.
Some doctors also predict that overall growth in breast augmentations could accelerate, as women waiting for approval of silicone implants visit their doctors and others with saline implants consider replacing them.
Article in the Wall Street Journal -- FDA Sets Deal With Drug Firms On TV-Ad Vetting, by Anna Wilde Mathews. One wonders about the possible preemption effects. Here's an excerpt:
The Food and Drug Administration has reached an agreement with the pharmaceutical industry that would require companies, for the first time, to pay fees to the agency for vetting their television advertisements, in exchange for speedier reviews.
The fees from the proposed agreement would help pay for new staff to be hired by the FDA to review the industry's TV ads, people familiar with the deal said. Many drug makers are voluntarily submitting ads to be reviewed by the FDA.
The agreement would be proposed in tandem with a separate, five-year pact setting new user fees to be paid by drug makers to the FDA when the agency reviews their applications to market new medicines. That agreement is expected to require the industry to pay substantially more money to the FDA, with a large chunk going to fund drug-safety initiatives, said people familiar with the matter.
Article in the Wall Street Journal -- Marketing New Antismoking Pill Poses Challenges for Pfizer, by Scott Hensley:
For Pfizer Inc., the easiest part of marketing its new antismoking pill may have been winning Food and Drug Administration approval for the drug in May.
Chantix, the first medicine in a decade to help smokers quit, would seem a surefire blockbuster. Smoking remains the leading preventable cause of death in the U.S., and about 70% of the nation's 45 million smokers say they want to quit, according to government estimates. In addition, existing treatments work poorly, and Chantix got speedy FDA approval in large part because of its superior performance.
But in launching the drug, Pfizer has had to negotiate a marketing obstacle course that illustrates some of the challenges facing the industry, as well as the idiosyncrasies of the huge antismoking market. Aware of increased consumer cynicism and unfulfilled promises made for smoking treatments in the past, Pfizer has adopted a softer sell that it hopes will build Chantix steadily over time. Meanwhile, because insurers are slow to cover smoking treatments, it has priced Chantix so that consumers will be willing to pay for it themselves.
Here's a link to the New York Times article, Judge: No Class - Action Suit Over Vioxx, by the Associated Press, and the Washington Post article, Judge: No Federal Class in Vioxx Suits, by Janet McConnaughey of the Associated Press.
In the Vioxx MDL, the judge today rejected a class action for personal injury and wrongful death cases. Judge Eldon Fallon denied the Plaintiffs' Steering Committee's motion to certify a nationwide class. Here's a link to Judge Fallon's Nov. 22 order denying class certification.
This should come as little surprise, given the reluctance of courts to certify mass tort personal injury class actions in general, and the extent of individual issues in the Vioxx litigation in particular. The court's order cites similar rejections of class certification in other recent mass torts including Prempro, Baycol, Propulsid, Rezulin, tobacco, and Firestone tires.
Applying New Jersey choice of law rules (because the class representatives originally filed the action in New Jersey before it was transferred to E.D. La. as part of the multidistrict litigation), Judge Fallon determined that he would apply the substantive tort law of each plaintiff's home state. He emphasized that the application of multiple states' laws made class certification very difficult, citing the Fifth Circuit's opinion in Castano and the Seventh Circuit's opinion in Bridgestone/Firestone.
Beyond the choice of law problem, Judge Fallon emphasized the extent of individual issues in the Vioxx cases. He concluded that although the class met the Rule 23 requirements of numerosity and commonality, it failed on typicality, adequacy, predominance, and superiority. The court distinguished single-situs mass accidents, suggesting that class cert may be easier in such cases than in mass pharmaceutical products liability litigation. Judge Fallon made it clear that this decision applies only to the personal injury and wrongful death class action, not to class actions for purchase claims or medical monitoring.
Tuesday, November 21, 2006
Article in the Washington Post -- New Justices Take the Podium, Putting Personalities on Display, by Robert Barnes. The article notes that both Justices Roberts and Alito recently publicly emphasized the important role of elected officials rather than the courts deciding important questions, suggesting a modest approach to Supreme Court decisionmaking. It's perhaps too early to tell the extent to which these statements are indicative of judicial deference in their opinons. Here's an excerpt:
The two newest Supreme Court justices took off the robes and took to the stump last week, providing glimpses of the fresh personalities that will reshape a court that had remained constant for more than a decade.
The settings could not have been more different. Chief Justice John G. Roberts Jr. was interviewed before a crowd of 3,000 last Monday night at the University of Miami, and his telegenic message of moderation was then broadcast to the nation on ABC's "Nightline."
Justice Samuel A. Alito Jr. spoke to his fellow members of the Federalist Society, a coalition of conservative lawyers and legal scholars who have gone from rebel outsiders to Washington insiders -- the group drew 1,500 people to its annual banquet and warranted appearances by administration leaders from Vice President Cheney on down.
Roberts's turn on the stage was the most complete, and it showed that his sure-footed performance in his confirmation hearings, where he left even senators opposed to his conservative philosophy aglow, was no fluke.
Boston mass tort plaintiffs' lawyer Alex MacDonald has left Robinson & Cole to join Rothweiler Eisenberg. MacDonald's mass torts group at Robinson & Cole was a rare example of a significant mass tort plaintiffs' practice within a large corporate firm. (Robins Kaplan in Minnesota is the other prominent example.) Plaintiffs' practices in large defense-oriented firms have certain advantages -- resources, infrastructure, lawyers with varied experience -- but inevitably run into conflicts of interest and sometimes culture clashes as well. The question is whether the benefits outweigh the costs. Apparently, MacDonald found that the big-firm association no longer made sense for his practice.
Here's a clip from a Connecticut Law Tribune article -- High-End Plaintiffs Cases an Uneasy Fit at Defense Firms:
In the end, multimillion-dollar contingency fee recoveries couldn't keep Hartford, Conn.-based Robinson & Cole and the chairman and founder of its nationally prominent mass tort group together under the same roof.
Like for other high-end plaintiff practices operating within large defense-oriented law firms, client conflicts eventually convinced Alex H. MacDonald that greener pastures lay elsewhere, he said.
Recently, he took the reputation he gained from brokering a record-breaking fen-phen settlement and joined forces with two high-profile Philadelphia trial lawyers to form MacDonald Rothweiler Eisenberg.
The message to other defense firms: Dabbling in plaintiffs work can be lucrative, but the more lucrative it gets, the more inevitable an eventual breakup becomes.
According to the article, Robinson & Cole's longstanding representation of Pfizer had precluded MacDonald's group from taking on Rezulin cases (because Pfizer was on the verge of acquiring Warner-Lambert) or Vioxx cases (because Pfizer produced similar drugs Celebrex and Bextra).
MacDonald made his name in the fen-phen litigation, in which he represented Mary Linnen and a host of other PPH claimants, and became a central figure on the plaintiffs' side. He was profiled in Alicia Mundy's book, Dispensing with the Truth (St. Martin's Press 2001).
Monday, November 20, 2006
Today's NY Sun editorializes on the FDA's recent decision to permit cosmetic use of silicone gel breast implants. The editorial -- Now They Tell Us -- links breast implants to asbestos and Vioxx, suggesting that the entire mass tort litigation system is out of whack:
The Food and Drug Administration recently lifted its 14-year ban on the use of silicone breast implants for cosmetic purposes, saying that even though the devices are unlikely to last a lifetime — surgeons will need to warn patients of the likelihood of future surgeries — there is no scientific evidence that leaking silicone implants cause cancer or other serious illnesses. So where does Dow Corning go to get its $3.2 billion back?
That's the amount the erstwhile silicone implant manufacturer paid out from the jaws of bankruptcy court in 1998 to settle 170,000 lawsuits filed over its supposedly faulty implants. ...
Indeed, silicone implants join asbestos and Vioxx in the pantheon of products that have been the subject of some of the most irrational litigation in history. Women whose silicone implants had ruptured and leaked couldn't actually prove that their implants had caused the illnesses they were suffering. The majority of today's asbestos plaintiffs can't prove they're suffering any illness at all. And Vioxx's alleged victims can't point to any actual proof that the arthritis drug's cardiac risk is greater than that posed by over-the-counter painkillers. Yet overeager lawyers were happy to sue, and the courts have been only too happy to oblige. Trial lawyers are currently trying to eviscerate Merck, Vioxx's manufacturer.
Merck has elected to fight each Vioxx suit individually, and that strategy seems to be working, but it's hard to fault Dow Corning or asbestos manufacturers for settling the suits against them instead of taking them to trial. The FDA's latest announcement does, however, highlight the broader dangers of leaving the out-of-control liability system unreformed. With the benefit of hindsight it is even clearer than it was before that the only crime Dow Corning committed was selling what was then a perfectly legal product that turns out to be safe. For that transgression, the company was allowed to be eaten alive by the trial bar. Dow Corning managed to survive. Others haven't been so lucky. Congress needs to decide how many more companies will suffer Dow Corning's fate before lawmakers deliver much needed legal reforms.
It's hard to argue with the editorial's 20-20 hindsight on the breast implant litigation, but I question whether it's fair to throw asbestos and Vioxx into the same bucket. The wisdom of "much needed legal reforms" depends on what legal reforms you're talking about, which depends mightily on what problem you're trying to address.
The breast implant litigation is the most egregious example of liability in the face of strong scientific evidence casting doubt on general causation. The scientific community largely rejected the claim that silicone gel breast implants caused autoimmune disease or other systemic disorders. Bendectin and Agent Orange come to mind as other major mass torts where plaintiffs' general causation case was questionable, but neither of those reached the scale of the breast implant litigation. It's worth remembering that the settlement class action in the breast implants case came after Judge Sam Pointer, overseeing the MDL, appointed a National Science Panel to report on whether breast implants caused the alleged harms. Without the court-appointed scientific experts, the defendants' exposure surely would have been larger. Even so, there's power in the editorial's rhetorical question: "So where does Dow Corning go to get its $3.2 million back?" The problem of litigation outpacing science is a serious issue in mass torts. But the editorial gets sloppy, I think, in suggesting that the lessons of the breast implant litigation extend to mass torts generally, rather than to the particular problems of scientific evidence and general causation.
The editorial points out that much recent asbestos litigation involves uninjured plaintiffs (and could have added that the claims are against third-tier defendants rather than against the major producers of asbestos-containing products, all of whom were bankrupted by the litigation). But the problems of exposure-only plaintiffs, latent disease, and substitute defendants differ from the problems of scientific evidence and general causation. The legal reforms to address the former set of problems (e.g., pleural registries, tort law on exposure-only claims and medical monitoring, and reforms of joint-and-several liability) differ dramatically from reforms to address the latter (e.g., court-appointed experts, jury reforms, phased trials, and preemption defenses).
It's too early to judge the Vioxx litigation, but at this point it seems that the most difficult problems there involve individual causation rather than general causation. If that's correct, then again, there's a huge difference in how the legal system ought to respond. In the absence of general causation, a defendant should face zero liability. When there's proof of general causation and a basis for liability, but individual causation remains difficult to establish, then liability serves the policies of deterrence and disgorgement, and the real problems are allocation and the extent to which tort compensation must be individualized.
In other words, to criticize the breast implant litigation is easy. To lump it with asbestos and Vioxx, and to demand "much needed legal reforms" as if it were obvious what those reforms should be, is a lot harder.