Saturday, October 20, 2007

Business Fallout from Stent Safety Concerns

As the Wall Street Journal reports, the after-effects of the heart-stent safety problems are causing much discussion among doctors who are meeting 30 years after the first balloon-angioplasty procedure.  Here's an excerpt from the article -- As Stent Sales Stall, Cardiologists Look to Reduce Safety Concerns, by Ron Winslow:

It was 30 years ago that pioneering cardiologist Andreas Gruentzig performed the first balloon-angioplasty procedure on a heart patient, giving birth to a specialty that has transformed treatment of coronary-artery disease in the past two decades.

But as interventional cardiologists toast their founding father at a big conference beginning this weekend in Washington, D.C., the glass-clinking will be muted by the sober state of their business -- in particular the status of its flagship device known as the drug-eluting stent.

Johnson & Johnson reported this week that sales of its Cypher stent plunged more than 40% in the third quarter from a year earlier; revenue for Boston Scientific Corp.'s Taxus stent, Cypher's only current rival in the U.S., fell 22%, and Boston Scientific announced a restructuring that includes laying off 2,300 workers.

The devices are tiny metal sleeves implanted to prop open diseased arteries; the drug-coated version minimizes chances that the stent will reclog within a few months, a problem that has required redo procedures for about 15% to 20% of bare-metal ones.

The Wall Street Journal also provides more in-depth treatment of the stent-related losses at Boston Scientific -- Boston Scientific Posts Loss As It Restructures, by Jon Kamp.


October 20, 2007 in Medical Devices - Misc. | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2007

NY Medical Examiner Rejects 9/11 Dust as Cause of Publicized Policeman's Death

Article on -- Medical examiner rules 9/11 cop did not die from WTC exposure.  Here's an excerpt:

He became the face of post-September 11 illness after his death in early 2006, galvanizing lawmakers and health care advocates to lobby for research and treatment for thousands who breathed the debris-filled air at ground zero.

James Zadroga, the 34-year-old retired police detective who died of respiratory failure after working hundreds of hours at the World Trade Center site, was often cited by those advocates as a "sentinel case" -- the first health-related casualty linked to ground zero, suggesting there would be more to follow.

The city's medical examiner stunned that community this week with a letter declaring that Zadroga's death had nothing to do with the toxic air he breathed while working at ground zero.

Rejecting another medical examiner's autopsy, New York City Chief Medical Examiner Charles Hirsch said in a letter to Zadroga's family that his death was not caused by exposure to trade center dust.

"It is our unequivocal opinion, with certainty beyond doubt, that the foreign material in your son's lungs did not get there as the result of inhaling dust at the World Trade Center or elsewhere," said the letter to Zadroga's father. It was signed by Hirsch and another medical examiner, Michele Slone. The letter was obtained Thursday by The Associated Press.

The article also notes that "[t]he city is defending itself in a lawsuit filed by thousands of workers who say they were not properly protected from the dust."


October 19, 2007 in 9/11 | Permalink | Comments (0) | TrackBack (0)

FDA Panel Recommends Against Cough and Cold Medicines for Children 6 and Under

Article on -- FDA panel: No cold medicines to children under 6.  Here's an excerpt:

Over-the-counter cold and cough medicines don't work for children under age 6 and giving the common medicine to young children cannot be recommended, a Food and Drug Administration advisory committee said Friday.

The panel of health experts looking at how safe and effective antihistamines, decongestants, antitussins and expectorants are in children said it is not appropriate to take data from adults and apply it to children under 12.

After a two-day hearing on the safety of the medicine, the panel called for more studies about how these drugs affect children.

Although the panel's recommendation is nonbinding, it could lead to changes in how cough and cold medicine is used.

The article also notes that since 1969, there have been 54 reported deaths in children from decongestants and 69 deaths in children from antihistamines.  Will the recent publicity and FDA Advisory Panel recommendation result in many lawsuits being filed for child deaths putatively from cough and cold medications?  The Consumer Healthcare Products Association argues that consumer misuse of the cough-and-cold medications may be the cause of deaths, which suggests that any cases filed will turn heavily on individual product use, as well as other individual issues of medical causation.


October 19, 2007 in FDA, Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Preclusion of Certain Classwide Liability Findings in Florida Tobacco Litigation Stands

The Supreme Court declined to review the Florida Supreme Court's decision in Engle v. Liggett Group, 945 So.2d 1246 (Fla. 2006) on October 1, 2007.  The docket for the cert petition in R.J. Reynolds v. Engle can be found here.  In the Engle decision the Florida Supreme Court affirmed the dismissal of a $145 million classwide punitive damages verdict, but it also allowed certain liability findings made in Phase I of the trial to stand.  This means that the defendants cannot relitigate some of the issues that it lost in the trial.  The defendants' argument that the question of punitives lacked sufficient commonality for class treatment was adopted, but this ruling on lack of commonality did not extend to some of the underlying issues of liability which did have the requisite commonality, according to the court.   This means that former members of the class can use these findings offensively against the defendants in future suits.


October 19, 2007 in Procedure, Tobacco | Permalink | Comments (1) | TrackBack (0)

Mass Tort Scholar Hired at Cumberland Law

Cumberland School of Law in Birmingham, Alabama, has announced that Elizabeth Chamblee Burch has joined the school as an assistant professor of law.  Among her publications are Unsettling Efficiency: When Non-Class Aggregation of Mass Torts Creates Second-Class Settlements, 65 Louisiana L. Rev. 157 (2004), and Between "Merit Inquiry" and "Rigorous Analysis": Using Daubert to Navigate the Gray Areas of Federal Class Action Certification, 31 Florida State Univ. L. Rev. 1041 (2004).


October 19, 2007 in Class Actions, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 17, 2007

Medtronic's Cardiac Leads & FDA Safety

Article in the Wall Street Journal -- Medtronic and FDA Face Scrutiny on Safety Issues, by Anna Wilde Mathews and Thomas M. Burton.  Here's an excerpt:

Medtronic Inc.'s decision to stop selling potentially defective defibrillator leads has prompted scrutiny of the devices and of how safety concerns about them were handled by the company and the Food and Drug Administration.

Plaintiffs attorneys, a consumer group and Iowa Sen. Chuck Grassley are examining the history of the Sprint Fidelis leads, which are electrical wires that connect the hearts of patients to the defibrillators implanted in their chests.

On Monday, Minneapolis-based Medtronic disclosed that the Sprint Fidelis wires have fractured in about 2.3% of the 268,000 models made, 235,000 of which are still implanted in people. The company said the fractures may have contributed to five deaths.

In early signs of the pressure likely to come for Medtronic and the FDA, Mr. Grassley, a Republican, last night sent letters to the company and the agency asking for more information about the leads. Separately, consumer group Public Citizen argued in a letter that the company and agency should have taken action sooner.


October 17, 2007 in FDA, Medical Devices - Misc. | Permalink | Comments (0) | TrackBack (0)

Medtronic and the Deterrent Effect of Lawsuits

Deterrence, apparently, is in the eye of the beholder.  Medtronic recalled its Sprint Fidelis cardiac leads because of possible defects, and the company now finds itself a defendant in a putative class action.  Medtronic previously faced mass litigation over earlier defibrillator problems, and Guidant faced similar litigation.  The question:  Is this a story about a company that failed to learn from its mistakes, or is it exactly the opposite? 

According to the press release issued yesterday by plaintiffs' counsel Rheingold, Valet, Rheingold, Shkolnik & McCartney LLP, this is a case of a company that failed to learn its lesson from previous litigation.  The release quotes attorney Hunter Shkolnik:  "I believe that this new Medtronic litigation will follow the pattern of the previous litigation.  It is unfortunate that Medtronic did not learn a lesson from it and stop sales much earlier than it did.  The medical community published reports about this defect and Medtronic refused to act on it." 

Ted Frank at Point of Law sees it differently.  He describes the recall as "undertaken in an abundance of caution despite the lack of statistically significant evidence" and notes that "Medtronic's quick disclosure and recall contrasts favorably with the slower recall by Guidant three years ago."  He suggests that the budding Medtronic litigation will provide an interesting test case for members of the plaintiffs' bar who support tort liability as a deterrent:  "Will Medtronic be rewarded in the courtroom, or will they face the same degree of liability and litigation expense (or worse) as that of Guidant?  And if the latter, where does the supposed incentives of the modern-day product liability system come from?"


October 17, 2007 in Medical Devices - Misc. | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 16, 2007

Medtronic's Sprint Fidelis Cardiac Leads Not Semper Fidelis

Article in the Wall Street Journal -- Medtronic Defibrillator Patients Mull Options: Experts Advise Monitoring, But Say Fraction-Prone Wires Should Be Left Alone if Intact, by Thomas M. Burton and Anna Wilde Mathews.  Here's an excerpt:

It has long been an open secret among heart doctors: Flaws in the fragile wires, or "leads," connecting cardiac electrical devices to patients' hearts are far more frequent than malfunctions in the devices themselves.

Now that Medtronic Inc. has pulled its Sprint Fidelis leads from the market due to their risk of fracturing, hundreds of thousands of heart patients have been alerted to that reality. And they must decide how to respond.

The company, which says that 235,000 patients world-wide have a Sprint Fidelis attached to their hearts, recommends that patients see their doctors immediately. A cardiologist can reprogram a patient's defibrillator to heighten its ability to sense a defect in a lead so it can send out a warning beep if a problem is detected. Some doctors are also recommending that patients sign up for Medtronic's monitoring system, known as CareLink, which could alert patients to a possible fracture in the lead.


October 16, 2007 in Medical Devices - Misc. | Permalink | Comments (0) | TrackBack (0)

Tort Claims Against Military Contractor Can Go Forward

BNA Law Week reports a new decision from the 11th Circuit holding that military contractors do not enjoy the same immunity to suit as the US Government under Feres v. United States, 340 U.S.135 (1950).  The case is McMahon v. Presidential Airways, Inc., No. 06-15303 (11th Circuit, 10/5/07).  The lawsuit was brought by survivors of three soldiers who died in an airplane crash in Afghanistan.  The court also held that the political question doctrine does not render the case non-justiciable, but did not rule on the question of whether a "sensitive military function" protects the contractor from suit.

My prediction is that suits by soldiers and civilians against military contractors will be a new type of mass tort, similar to the human rights class actions that have increased in number.  We'll be seeing a military contractor Multi District Litigation in the very near future.


October 16, 2007 in Procedure | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2007

Punitive Damages in Nevada Prempro Trial

A jury in Reno today lashed Wyeth with a $99 million punitive damages verdict in a three-plaintiff Prempro lawsuit in Nevada state court.  The massive award was predictable given how events unfolded in the case last week.  On Wednesday, the jury rendered a compensatory damages verdict totaling $134.5 million.  When Judge Robert Perry learned that the jury was confused about compensatory and punitive damages, he ordered the jury to reconsider the amounts, and the jury came back with a total compensation verdict of $35 million.  Today, the jury returned to consider punitive damages, and unsurprisingly hit Wyeth with essentially the same amount it had intended as punishment last week. An AP story on the Houston Chronicle website -- Punitive Damages Awarded in Wyeth Case -- reports on today's punitive damages verdict:

Jurors awarded $99 million in punitive damages Monday to three Nevada women who claimed hormone replacement drugs distributed by pharmaceutical giant Wyeth caused their breast cancer. A Wyeth attorney said the award would be appealed. ...

After lawyers for both sides gave closing arguments again on Monday, the judge instructed the five-man, two-women jury to move to the punitive stage of the trial to consider whether the company's actions were so "reprehensible" that additional damages were warranted to punish it and discourage such behavior in the future. ...

The jurors returned at 1 p.m. Monday, two hours after they began deliberations following an impassioned plea by one of the plaintiffs' lawyers to return a large enough judgment to "get the attention and hold responsible" a company with a net worth of $14.6 billion.


October 15, 2007 in Prempro, Punitive Damages | Permalink | Comments (1) | TrackBack (0)

Fewer Jobs for Mississippi Mass Tort Lawyers

"In 2002, if you walked out with a degree, you could find a job in the mass tort business," Mississippi College School of Law Dean Jim Rosenblatt is quoted as saying in this article in the Jackson Clarion-Ledger.  "The legal employment market is tougher now than it was five years ago. There are still good jobs, but students have to start earlier and work harder to find them."  According to the article, Mississippi law school graduates are finding it increasingly difficult to get jobs, and tort litigation in particular has become less lucrative, in part because of tort reforms implemented in 2001.

Mississippi provides an interesting case study in mass tort litigation.  For years, the state was a hotbed of mass litigation activity despite its lack of a class action rule, which I addressed in Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation and Comments on a Class Action Rule for Mississippi.   Last week, our blog gave special attention to one of the beneficiaries of the golden era of Mississippi mass tort litigation, John Arthur Eaves, Jr., a Mississippi mass tort lawyer who is running as the Democratic candidate for governor of Mississippi.


October 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Sharkey on Preemption

Catherine Sharkey (NYU) has just posted an article on SSRN titled "The Fraud Caveat to Agency Preemption."  The article, which looks very interesting and timely, can be downloaded here.  Here is the abstract

The “fraud caveat” is ubiquitous in key debates on the regulatory role of tort law: Even the most ardent supporters of either the state-based regulatory compliance defense to tort claims against product manufacturers, or the more powerful wholesale federal preemption of state tort law by administrative regulations, concede that fraud changes the equation. State legislatures that have adopted regulatory compliance provisions immunizing prescription drug manufacturers whose drugs were approved by the FDA from liability for damages (either entirely or just for punitive damages) have, without exception, included the fraud caveat. And courts interpreting these immunity statutes echo the caveat mantra. The fraud caveat remains an undertheorized but highly revealing and consequential aspect of regulatory preemption debates.

In Warner-Lambert Co. LLC v. Kent (No.06-1498), the U.S. Supreme Court is poised to answer the question whether Buckman Co. v. Plaintiffs' Legal Committee preempts statutory fraud exceptions to drug manufacturer immunity statutes. The question raises a narrow doctrinal issue, but one that hits a raw federalism nerve, with correspondingly wide reverberations in products liability preemption jurisprudence. A satisfactory resolution of the doctrinal issue - relying upon the FDA to police fraud in the first instance, but enlisting private litigants on the remedial and enforcement end - provides the seeds of a more generalizable model of agency-court cooperation for the regulation of nationally regulated products, such as medical devices and pharmaceuticals. This institutional approach gives primacy to the agency to decide, in the first instance, the extent to which state law requirements would encroach upon its regulatory scheme, but reserves room for private litigant enforcement of federally determined standards.


October 15, 2007 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2007

Prempro Jury Confused; Damages Reduced

If Wednesday's verdicts in the Nevada Prempro case seemed implausibly large for compensatory damages, here's the explanation:  the jury was confused about the difference between compensation and punitive damages.  Although for now, this means a substantial reduction in the verdicts, under the circumstances it cannot be considered good news for Wyeth.

According to this Reno Gazette-Journal article -- Jurors to reconsider Prempro damages -- the judge instructed the jury to reconsider its damages calculations:

Jurors in the Wyeth trial were sent back to the jury room this morning to reconsider the amount of damages the company must pay after they told the judge that they were confused about punitive damages when they ordered the company to pay millions on Wednesday.

The jurors told Judge Robert Perry that they included punitive damages in the total they awarded three women who had sued Wyeth, claiming its hormone replacement drugs caused their breast cancer.

... After learning of the confusion, Perry sent the jury back and said they must first recalculate the past and future damages, and then said he would hold a hearing with witnesses before the panel would decide punitive damages.

Later today, an article by AP writer Sandra Chereb -- Jury Cuts $100M From Award Against Wyeth -- reported that upon reconsideration, the jury reduced the total verdicts from $134.5 million to $35 million:

A jury on Friday slashed $100 million from a judgment against pharmaceutical giant Wyeth after it conceded a previous award was improper because it was intended to punish the company for its hormone replacement drugs.  Washoe District Judge Robert Perry instructed the five-man, two-woman jury to reconsider a $134.5 million compensatory award issued Wednesday after questions were raised about whether the judgment included punitive damages.  Perry said the matter was brought to his attention by a bailiff, who overheard discussion in the jury room.  "If we don't correct it now, we'll be trying this case again," the judge said.  After deliberating for about three hours, jurors on Friday awarded $35 million to three Nevada women for past and future medical expenses, as well as physical and emotional pain and suffering. ...

Perry twice denied a motion by Wyeth lawyer Dan Webb to declare a mistrial over the jury's confusion.  Webb argued that jurors were predisposed to punish the company before the punitive phase of the trial had begun.  The judge said jurors raised questions expressing their confusion during the initial deliberations, but Wyeth lawyers wouldn't allow an explanation. ...

The revised compensatory damage verdicts include $10.5 million for Jeraldine Scofield, $12 million for Arlene Rowatt, and $12.5 million for Pamela Forrester.  The jury will return Monday to decide whether to impose punitive damages.  Given the jury's premature attempt to punish Wyeth with an extra $100 million or so, there cannot be much doubt about how the punitive damages phase will turn out next week.


October 12, 2007 in Prempro, Punitive Damages | Permalink | Comments (0) | TrackBack (0)

CAFA's Home State Exception Interpreted

BNA's class action report came out today.  One of the more interesting decisions reported concerns the interpretation of the "home state" exception to removal under CAFA.  Here is a bit from the report:

A federal court in Pennsylvania Sept. 27 concluded that the "home-state" exception to the Class Action Fairness Act does not apply if one or more primary defendants is not a resident of the state in question (Anthony v. Small Tube Manufacturing Corp., E.D. Pa., No. 06-CV-4410,  9/27/07). 

The court rejected plaintiff's argument that the case ought to be remanded to state court because the home state exception (28 USC sec. 1332(d)(4)(B) applies if a single primary defendant is of the same state as plaintiffs.  A bit more from the BNA summary:

Few courts have dealt with the definition of "primary defendants" in the home-state exception, [Judge] Gardner said. Using an analysis set out in Passa v. Derderian, 308 F. Supp.2d 43 (D.R.I. 2004), on a similar law, the judge said primary defendants are those with direct liability to the plaintiffs, while secondary ones are those who are liable under such theories as indemnification or vicarious liability. Under this definition, he found both Small Tube and Cabot were primary defendants, as were the other defendants in the litigation, rejecting the plaintiffs' argument that only Small Tube met that test.


October 12, 2007 in Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, October 11, 2007

Big Plaintiffs' Verdict in Nevada Prempro Trial

Yesterday, a Nevada jury hit Wyeth Pharmaceuticals with a $134.5 million verdict in a three-plaintiff hormone replacement therapy case.  According to a story in the Reno Gazette-Journal -- Jury Orders Wyeth to Pay Out Millions -- the jury found for the plaintiffs on negligence, product defect, and causation, found that Wyeth "concealed a material fact about the safety of the product," and found by clear and convincing evidence that Wyeth "acted with malice or fraud":

A Washoe County jury has ordered pharmaceutical giant Wyeth to pay more than $43 million each to three Northern Nevada women who claimed in a lawsuit the company's hormone-replacement drugs caused their breast cancer.

The jury said Premarin, an estrogen replacement, and Prempro, a combination of estrogen and progestin, were defective products and found Wyeth was negligent in producing, marketing and selling the drugs.

The bad news for Wyeth is that this was merely the compensatory damages phase; jurors will return tomorrow to decide punitive damages.  Yesterday's verdict broke down as follows:  for Jeraldine Scofield, $7.5 million in past damages and $36 million in future damages; for Arlene Rowatt, $7.5 million in past damages and $36 million in future damages; and for Pamela Forrester, $7.5 million in past damages and $40 million in future damages.  A year ago, Wyeth settled with Carol McCreary, a fourth HRT plaintiff who had been part of the same lawsuit.

The article notes that Wyeth is facing about 5300 HRT lawsuits involving about 7800 plaintiffs.

The Wall Street Journal reports that the financial markets do not seem particularly troubled by the Nevada verdict or by the Prempro litigation, which pales in comparison to the woes Wyeth faced in fen-phen.


October 11, 2007 in Prempro | Permalink | Comments (0) | TrackBack (1)

Dickinson on Tort Liability for Military Contractors

My colleague Laura Dickinson, who is writing a book called Outsourcing War and Peace, has an interesting post on Balkinization about tort liability for military contractors.  Click here for the post. She explains that there are three types of suits that might be brought:

(1) suits brought by troops who’ve been injured by a contractor (an example here would be Carmichael v. KBR, 450 F. Supp. 2d 1373 (N.D. Ga. 2006), filed after a soldier suffered massive injuries in Iraq when the truck he was escorting, owned and operated by KBR and Halliburton, overturned in a ravine in Iraq); (2) suits brought by contractor employees (an example here would be the suit brought against Haliburton for deploying convoy as a decoy in an area the contractor allegedly knew to be under attack); (3) suits by third parties who’ve been injured by contractors (an example here would be the pair of cases brought by Abu Ghraib victims against CACI, Inc. and Titan Inc., the firms that provided interrogators and translators at the prison), see Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (2005); Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006).

For purposes of this blog, the most intriguing  categories of cases are suits by third parties and employees.  Suits by Iraqis could be the next big human rights mass tort action, though the litigants may face jurisdictional problems -- remember the Bhopal suit against Union Carbide dismissed for forum non conveniens in the mid-80s?  Whether such suits survive such a challenge will depend on a lot of factors, including the state of the Iraqi legal system.   Dickinson also explains that such suits might be dismissed on either political question or immunity grounds.  She convincingly argues that the political question rationale is dubious.  The contractor immunity defense may have more teeth, but she reminds us, it was rejected in the most recent iteration of In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 85-90 (EDNY 2005).

Addendum:  CCR and two lawfirms have already filed suit on behalf of Iraqis harmed by Blackwater employees under the ATCA.  A press briefing and link to the complaint can be found here.



October 11, 2007 in Mass Disasters, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2007

Schulman Pleads Guilty in Milberg Weiss Case

Steven Schulman, former partner of Milberg Weiss, pleaded guilty yesterday to a racketeering conspiracy charge.  Here's an excerpt from the New York Times article:

Mr. Schulman ... admitted in federal court to being part of a scheme in which the firm, known for its class-action lawsuits against companies, gave secret kickbacks to individuals who remained on call to act as lead plaintiffs. This allowed the firm to file suit faster than its competitors and to gain a lead position that generally resulted in higher fees.

... Mr. Schulman is also cooperating with prosecutors and agreed to forfeit $1.85 million in profit, pay a $250,000 fine and accept a prison sentence. Though his plea could bring a sentence of up to 20 years, court filings suggest 27 to 33 months.


October 10, 2007 in Class Actions, Ethics | Permalink | Comments (0) | TrackBack (0)

Mass Tort Lawyer Running for Governor of Mississippi

"If it wasn't your fault or an act of God then someone must be held responsible."

This paean to overlitigiousness is the pitch made to prospective clients on the John Arthur Eaves Law Firm website, now advertising for Benzene, Bextra, Vioxx, Celebrex, terrorism, and nursing home cases.  It is not an accurate statement of tort law, of course, unless one interprets "act of God" to include all those slings and arrows that do not give rise to legitimate legal claims.

John Arthur Eaves, Jr., a prominent Mississippi plaintiffs' lawyer, may not interpret "act of God" broadly when evaluating potential tort claims, but apparently he is playing the God card for all it's worth in his effort to unseat Republican Governor Haley Barbour.  A story on the front page of today's New York Times outlines the difficulties faced by a Democrat in Mississippi, and Eaves' strategy of emphasizing his born-again Christian fervor and his corresponding positions on issues such as school prayer and abortion.  The Times article mentions that Eaves has largely self-financed his campaign with wealth acquired from representing asbestos plaintiffs.  Today's Wall Street Journal Law Blog echoes the Times article, adding a choice passage about Eaves' religiosity from the campaign web site.  Overlawyered has comments, as well.


October 10, 2007 | Permalink | Comments (0) | TrackBack (1)

Tuesday, October 9, 2007

Bellwether Trials

In recent thoughtful blog posts here and on Drug and Device Law, informal bellwether trials have been singled out as a potential answer to the problems of caused by mass torts in multi-district litigation.  Both Erickson and Beck/Hermann support bellwether trials with the caveat that they are a second-best solution.  I agree, but I think that mandatory bellwether trials should get a second look, a point I argue in an article (fittingly called "Bellwether Trials") that I just posted on SSRN (available here) and on bePress (available here).   

The Article makes two points.  First, a democratic justification for permitting mandatory bellwether trials can balance out the autonomy concerns that this form of collective justice raises.  Tort trials are understood as an atomistic enterprise.  The jury trial, however, realizes not just individualistic but also democratic values that can help justify mandatory bellwether trials.  This argument is different from the utilitarian arguments made by Beck/Hermann and in most of the scholarly literature on the subject.  Second, although it is generally believed that bellwether trials are unconstitutional, I show that this is not the case.  Although the Seventh Amendment has been seen as an absolute barrier to bellwether trials since the Fifth Circuit's decisions in Cimino v. Raymark Industries, there is significant historical and doctrinal material supporting the constitutionality of binding bellwether trials. 

Of course, there are problems with bellwether trials.  For example, bellwether trials may create distributional injustice because the process of averaging verdicts redistributes wealth from those plaintiffs that would have received larger verdicts to those that would have received smaller ones.  On a similar note, permitting opt-outs in a mandatory bellwether procedure may cause plaintiff flight as plaintiffs realize that their larger expected verdict will be reduced by the averaging process, which even if refined somewhat is necessary for the procedure to work.  I provide some responses to these concerns in the piece. 

One of the questions raised by the continuing use of bellwether trials is why our system so easily tolerates the use of informal procedures to reach settlements that would be impermissible if they were formalized and mandated by a court.  The traditional response is that consent justifies settlements where litigation would be impossible, and bellwether trials encourage settlement.  But most observers recognize that consent is a pretty thin justification in the mass tort context.  So does that mean expedience is the real justification?  That does not seem good enough. 


October 9, 2007 in Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Sunday, October 7, 2007

Blog Roundup