Saturday, December 2, 2006
Interesting op-ed in today's Wall Street Journal -- False Witness, by Professor Lester Brickman of Cardozo School of Law of Yeshiva University. Professor Brickman discusses the influential opinion by Judge Janis Jack in the silicosis litigation, documenting widespread fraudulent medical diagnoses in mass screenings set up by plaintiffs' counsel to locate injured plaintiffs. Professor Brickman then mentions similar problems in the litigations involving Fen-Phen, silicone breast implants, mold, and asbestos. Professor Brickman's favored solution is for courts to greet claims generated from mass screenings with "healthy skepticism" and stop "insulat[ing] them from . . . extensive discovery," and for prosecutors to more aggressively pursue criminal prosecution of experts for fraud.
The record of mass screenings set forth by Professor Brickman does indeed indicate the need for full, vigorous discovery through our adversary system. I would argue, however, that ideally the skepticism of judges should be based on the evidence of bias in the mass screening put before them, rather than a predetermined judicial mindset waiting to see fraud -- which itself would seem to constitute bias.
Moreover, bringing to the courts plaintiffs truly injured by defendants' conduct is essential to effectuating the tort system's goals of corrective justice, deterrence, and compensation. That plaintiffs' counsel would fund screenings in a search for such truly injured plaintiffs assists the tort system, so long as the screenings are done under procedures that withstand review for scientific rigor and avoidance of bias.
The issue of the use of mass screenings in litigation is a rich topic deserving of the great attention that Judge Jack's silicosis opinion has brought. In this op-ed piece and also in a recent law review article, Professor Brickman justifiably and interestingly widens a conversation that should continue to expand and include comment from all sides of the ongoing mass tort debate.
Friday, December 1, 2006
According to an article in the New York Times -- Warning on Paxil, by the Associated Press -- the American College of Obstetricians and Gynecologists has warned that women who are pregnant, or plan to be, should refrain from taking Paxil because of risk of birth defects. The FDA and Paxil manufacturer GlaxoSmithKline have previously issued warnings about Paxil's risk of birth defects.
Conflict of laws scholar Symeon Symeonides has posted on SSRN a paper on choice of law in U.S. product liability cases. Choice of law issues have figured prominently in mass tort class certification denials or reversals including Castano (tobacco), Bridgestone/Firestone (tires), and most recently, Judge Fallon's rejection of a personal injury class action in the Vioxx litigation. Here's the abstract of Prof. Symeonides' article, entitled The Quest for the Optimum in Resolving Product-Liability Conflicts:
This essay reports the findings of a comprehensive study of product-liability conflicts cases decided by American courts from 1990 to 2004. One of the findings is that choice-of-law methodology plays a less significant role in the courts' choice of the governing law than other factors, such as the number and pertinence of factual contacts with a given state.
For example, regardless of methodology, in 79% of the cases in which the product's acquisition and the victim's domicile and injury were in the same state, the courts applied that state's law, regardless of whether it favored the plaintiff or the defendant, and regardless of whether that state was also the forum. Another finding is that, contrary to prevailing perceptions, American courts do not unduly favor plaintiffs as a class, nor the law or the domiciliaries of the forum state. Indeed, on the whole, the record of American courts in resolving these most intractable of conflicts is much better than one might assume from a selective reading of a few cases.
However, this record comes at a heavy cost in time and resources for courts and litigants. One way to remedy this problem is to provide courts with specific guidance in the form of choice-of-law rules. This essay proposes such a rule, and then examines how that rule would have resolved the cases of the study period. The answer: much in the same way (good or bad), but much more quickly, and at a lower cost.
Today is December 1, the day new Federal Rules of Civil Procedure go into effect. This year, that means the new rules on electronic discovery. To participants in mass tort litigation, e-discovery obviously has huge significance concerning discovery from defendants, less so from plaintiffs.
Noteworthy amendments include FRCP 34's explicit inclusion of "electronically stored information" (ESI) as a category along with documents, things, etc.; FRCP 26(b)(2)(B)'s limitation on discovery of ESI that is "not reasonably accessible"; FRCP 26(b)(5)(B)'s clawback provision allowing parties to demand the destruction or return of inadvertently produced documents or ESI; and FRCP 37(f)'s controversial safe harbor provision protecting parties from discovery sanctions for failure to produce ESI "lost as a result of the routine, good faith operation of an electronic information system." In significant respects, the rule amendments codify Judge Shira Scheindlin's analysis in Zubulake v. UBS Warburg (SDNY 2003).
Accounts in the popular press seem to have missed the point, suggesting either that the availability of e-discovery is something new (New electronic-evidence rules catch lawyers off guard) or that the amendments impose new obligations on companies to monitor electronic information (New Rules Make Firms Track E-Mails, IMs). Electronic discovery is nothing new. Skilled lawyers have been requesting information from disks, floppies, CDs, memory sticks, hard drives, back-up tapes, e-mail, Palm Pilots, Blackberries, and cell phones as long as such information has existed. The rule amendments give a name to a category that previously lawyers simply included in their definition of "document," and the amendments establish a rational set of procedures to apply to ESI. By spelling out more clearly the applicable rules and by calling attention to ESI, the amendments may increase the amount of e-discovery, and may cause companies and to be more careful in tracking electronic information. But if anything, the overall thrust of the rules -- particularly the safe harbor of Rule 37 and the presumptive non-discoverability of "not reasonably accessible" ESI -- is toward protecting litigants against unduly burdensome electronic discovery.
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.