October 26, 2007
Arson, Negligence, and the California Wildfire Mass Tort
We don't often think of arson as a mass tort. But for those of us in Southern California, it's easy to see why it qualifies. This last week has been a harrowing time -- according to the L.A. Times: 488,099 acres have burned, 1,775 homes and 2,103 structures total have been destroyed, 79 people have been injured, and 7 people have died. That some of these fires have been started by the intentional acts of arsonists is maddening. Recently, for example, the authorities have raised the award to $250,000 for information on the arsonist who started the Santiago fire that has destroyed at least 14 homes and burned 25,000 acres. These are trespass-based mass torts, like the claims that would have been brought against the 9/11 hijackers and Al Qaeda if they were available for suit.
Similarly, other fires may have been caused by negligence. The Magic Fire, for example, was reportedly started by sparks from welders in a construction site close to the Magic Mountain Amusement Park. The Magic Fire went on to burn 2,824 acres, but luckily was fought back from the backyards of houses -- no structures were lost.
Should claims be brought, plaintiffs might face arguments about proximate causation. As a matter of policy, is it proper to trace causation back to the person who started a fire, when it spreads for thousands of acres, and is subject to the vagaries of winds, temperature, and humidity? The law has certainly struggled with these issues in the past when it comes to fires. But intentional tortfeasors don't get breaks when it comes to proximate cause -- sound policy puts a broad swath of subsequent bad results on the shoulders of the intentional tortfeasors. So I would argue any arsonist should be subject to lawsuit by all those whose homes were destroyed. And even with regard to the negligently created fire -- can the welder adjacent to wildland for example argue that he didn't foresee that sparks might set ablaze the dry fire-prone chaparral vegetation that was already burning all over California?
To be honest, civil litigation and resulting personal bankruptcy is the least of the concerns for the arsonist. There are of course criminal charges. And maybe that's not even the worst, as the L.A. Times reports:
The arsonist is lucky he wasn't caught in the act, some residents added.
"Around here if they caught a guy doing that, they'd shoot him right on sight," said Leonard Schwendeman, 89.
Boeck added, "If they ever catch this guy, they better hope that it's the sheriff or the FBI that catch 'em, because if canyon residents catch 'em first, there won't be a piece of them big enough for a dog to bite."
New York's City Medical Examiner Says Detective's Death From Drugs, Not 9/11 Dust
Article in the L.A. Times -- Drugs, not 9/11 dust, cited in cop's death, from Newsday. Here's an excerpt:
The death of New York police Det. James Zadroga, which was previously linked to his work in the rubble of the World Trade Center, was caused by injections of ground-up pills, the city medical examiner's office said Thursday.
"What caused the disease was the injection of the drugs into his bloodstream, as opposed to something he breathed," said Ellen Borakove, spokeswoman for Chief Medical Examiner Charles Hirsch.
The ruling outraged the family of Zadroga, 34, who became a symbol of post-Sept. 11 illness after his death last year.
The conclusion contradicted a previous pathologist's report that said Zadroga's death was the result of his work after the 2001 terrorist attacks.
One wonders about bias, given that New York is being sued by many workers for 9/11 ailments, and the city medical examiner is employed by New York. Additionally, it's possible that any drug abuse was related to 9/11 ailments, as Detective Zadroga was taking as many as 14 medications for his health problems, as the articles notes.
Bayer Blood-Clotting Drug Trasylol May Increase Risk of Death
A Canadian study was halted after growing evidence suggested that Bayer's blood-clotting drug, Trasylol, which is used to reduce bleeding during heart-bypass surgery, increases the risk of death compared to other medications. See the Wall Street Journal article, Bayer Drug May Raise Risk of Death, FDA Says, by the Associated Press.
Coffee on Class Certification
The most recent BNA Class Action Litigation reporter includes an article by John Coffee (Columbia) and Stefan Paulovic (student) evaluating developments over the last five years. BNA writes "The authors conclude that the tide is turning against class certification and the "long-term future of the class action is in doubt.""
October 25, 2007
Merck's RotaTeq Vaccine Not Associated With Life-Threatening Intestinal Problem
Article in the Wall Street Journal -- Merck Vaccine Seems Unlinked to Infant Malady, by Jennifer Corbett Dooren. Here's an excerpt:
A Merck & Co. vaccine designed to protect infants against rotavirus doesn't appear to be associated with an increased risk of a potentially life-threatening intestinal problem known as intussusception, according to information compiled by federal health officials.
The Food and Drug Administration and the Centers for Disease Control and Prevention have been tracking the vaccine, sold under the brand name RotaTeq, to look for any links to intussusception because a rotavirus vaccine made by Wyeth was pulled from the market in 1999. The Wyeth vaccine was linked to an increased rate of intussusception, which is a twisting or obstruction of the intestine.
The FDA issued a public-health notice earlier this year saying it had received 28 reports of intussusception in vaccinated infants, and it asked health-care providers to be certain to report any suspected cases of the problem. At the time, the FDA said the intussusception rate wasn't higher than the rate that would be expected among nonvaccinated infants.
FDA Says Aventis Ignored Reports of Problems in Ketek Safety Study
Article in the Wall Street Journal -- FDA Says Aventis Failed To Act on Ketek Drug Fears, by Anna Wilde Matthews. Here's an excerpt:
The Food and Drug Administration said drug maker Aventis failed to act on reports of serious problems with a safety study on its antibiotic Ketek and didn't properly oversee the trial's conduct.
The FDA detailed its concerns in a letter posted yesterday on its Web site and sent to Sanofi-Aventis SA, the successor company after a merger. Ketek, which has been linked to a risk of liver damage, was approved by the FDA in 2004, though the agency has said it didn't rely on the questionable safety study in approving the drug.
The doctor who ran the site that enrolled the most patients in the study ultimately pleaded guilty to fraud. The study was supposed to answer questions about whether the drug was tied to side effects including liver damage.
October 24, 2007
Amgen Earnings Drop Following Safety Problems of Anemia Drugs Aranesp and Epogen
Amgen's earnings slumped following its safety problems with its anemia drugs Aranesp and Epogen. Here's an excerpt from the Wall Street Journal's article, Amgen Earnings Slump, by Andrew Edwards:
Amgen Inc.'s third-quarter net income tumbled as the biotechnology company posted restructuring charges, and Aranesp sales continued to decline.
The results include a $590 million write-off on in-process research and development related to the acquisitions of Alantos and Ilypsa, $293 million in restructuring charges, and a $90 million write-off of inventory because of changed regulations and reimbursements in the quarter, the Thousand Oaks, Calif., company said. International sales rose 12%, while U.S. sales fell 1.9%. Excluding the impact of currency fluctuations, the company said total product sales fell 1%.
Sales of anemia drugs Aranesp and Epogen, which account for almost half of Amgen's sales, dropped 23% and 5%, respectively. The two drugs increase red-blood-cell production, reducing the need for blood transfusions for patients on dialysis and chemotherapy. Their sales have hemorrhaged since a Food and Drug Administration warning in March that the drugs, when used in high doses, can increase the risk of blood clots and death in cancer and kidney-disease patients.
The study prompted Medicare to set limits on reimbursements for the drugs, which cost the agency billions of dollars every year.
Glaxo to Cut Jobs Because of Avandia Problems
Article in the Wall Street Journal -- Glaxo to Cut Jobs As Generics Hit Sales, Profit, by Jeanne Whalen. Here's an excerpt:
GlaxoSmithKline PLC became the latest drug company to announce layoffs and cost cuts after competition from generic medicines and sharply lower sales of the diabetes drug Avandia hurt third-quarter earnings.
The world's second-largest pharmaceutical company by sales said it would take a £1.5 billion ($3.08 billion) charge as part of cost cuts that it estimates will save the company £700 million a year by 2010. Glaxo Chief Executive Jean-Pierre Garnier said layoffs would be involved, but he declined to say how many.
Glaxo, based in Brentford, England, was particularly hard hit by plummeting sales of Avandia, a once-popular diabetes drug now linked by some research to heart-attack risks.
FDA May Add Black Box Warning of Heart Attack for Glaxo's Diabetes Drug Avandia
Article in the Wall Street Journal -- Tougher Avandia Warning Is Urged: New Label for Drug Would Detail Risk Of Heart Attack, by Anna Wilde Mathews. Here's an excerpt:
The Food and Drug Administration wants GlaxoSmithKline PLC to add the strongest form of safety warning about heart-attack risk to the label of its diabetes drug Avandia, according to people with knowledge of the matter, a move that would compound the commercial woes of the once-popular medication.
Agency officials are pushing for a "black box" warning, these people say. The new label is still being discussed with the company and its final form isn't yet clear. In high-profile safety matters, the agency tends to have strong leverage.
The new warning would be a blow to GlaxoSmithKline, which had said there isn't clear evidence Avandia is more dangerous than competitors. Avandia already carries a black-box warning about a different side effect -- heart failure -- but a heart-attack warning would be more serious. Avandia's main rival drug, Takeda Pharmaceutical Co.'s Actos, carries a heart-failure caution, but doesn't have one for heart-attack risk.
October 23, 2007
Dupont Liable in West Virginia Zinc-Waste Class Action; $196.2 Million in Punitive Damages Awarded
As the Associated Press reports -- DuPont guilty of wanton, willful, reckless conduct: Company ordered to pay nearly $200M over zinc waste site in Harrison County -- Dupont has been found liable in a West Virginia class action suit apparently based on claims of negligence and public and private nuisance in connection with the dangers of a zinc waste site. The multiphase trial plan resulted in the jury awarding $196.2 million in punitive damages, in one of the early post-Williams punitive-damages, class-action awards. Total damages in the lawsuit, which include the cost of medical monitoring, surpass $400 million. The lawsuit was brought by Florida plaintiffs' attorney Mike Papantonio.
Coke Trying to Use Expected Guilty Plea by Lerach to Deny Class Status Based on Inadequate Representation
In Coke Tries New Defense: Firm Hopes to Use Plea in Lerach Case To Its Advantage, by Peter Latman, the Wall Street Journal reports Coca-Cola Co.'s attempt to use the impending criminal guilty plea by plaintiffs' lawyer William Lerach to deny class action status to a securities suit brought by Lerach while at the firm now called Coughlin Stoia. The Journal reports that Lerach took the case with him when he left the firm.
In appointing class counsel, a federal court must under Rule 23(g) that the counsel may "fairly and adequately represent the interests in the class." Moreover, Rule 23(g)(C)(ii) notes that the court may broadly consider "any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."
Lerach, members of Lerach's former firm Milberg Weiss, and Milberg Weiss itself are all under indictment for their alleged roles in a scheme to pay class representatives -- the few plaintiffs who represent in court the interests of the thousands of absent class members whose claims are being adjudicated. While any payment of class representatives would appear to have been done to keep them on standby for quick filing of lawsuits, those payments also have the capacity of undermining the independence of the class representatives and perpetrating a fraud on the court.
What's so interesting about Coke's move are its implications for other lawsuits. Should all putatitve class actions brought by Lerach or Milberg Weiss be denied class certification on grounds of inadequate class counsel? Here, I would argue that the presumption of innocence should apply to prevent the government from effectively destroying the business of a plaintiffs' firm by causing the denial of all class actions brought by the firm. Of course, many would argue that the specter of the indictment alone destroys the accused firm -- but it is one thing for individuals to choose not to associate with an entity accused of a crime, but quite another thing for a court effectively to impose penalties based merely on an accusation.
What if the allegations against Lerach, Milberg Weiss, and certain Milberg partners are proven? Indeed, Steven Schulman of Milberg has already pleaded guilty, as has Milberg partner David Bershad. Then, denial of future class actions by the lawyer or firm on the basis of inadequacy seems more reasonable, at least until the bar decides whether the lawyers in question will be able to continue to practice.
And what about any prior class actions resolved where class representatives were illegally paid? That's a question with implications for perhaps hundreds of millions of dollars of recoveries. The representation in those classes would likely be deemed inadeqate -- both by class counsel and by the class representatives. And the inadequate representation could be seen as a violation of constitutional due process, which turns in class actions upon the adequacy of class representation. One could imagine myriad actions for malpractice against the lawyers involved (if courts hold that absent class members have an attorney-client relationship with class counsel), as well as attempts by defendants to recoup settlement payments made under alleged fraud by class representatives and class counsel. Interestingly, many defendants would probably rather not reopen settled class actions, for fear that courts would toll the statute of limitations against them and allow new class counsel to bring new actions against them based on the same alleged wrongs. All in all, it would be a litigation meltdown worthy of a law school exam.
October 22, 2007
Follow-up on Prempro Trial
An Associated Press story in today's Reno Gazette Journal follows up on the Nevada Prempro plaintiffs' verdict. The main point of the article -- No alarm on Wall Street over Wyeth case -- is that the financial markets are not particularly concerned about the litigation over the Prempro and Premarin hormone replacement therapy (HRT) drugs, and are treating the $134 million verdict ($35 million compensatory damages and $99 million punitive damages) more as an aberration than an omen. As one financial analyst put it, as quoted in the article, "Unlike Wyeth's diet drug litigation, the Premarin/Prempro is widely viewed as more of a headline risk than a long-term financial risk." Of course, after fen-phen, almost any Wyeth litigation risk would appear small by comparison.
October 21, 2007
Resolving the Class Action Crisis: Mass Tort Litigation as Network
I finally got around to creating an ssrn author page, and have posted my article, Resolving the Class Action Crisis: Mass Tort Litigation as Network, 2005 Utah L. Rev. 863 (2005). Here's the abstract:
In the last few decades, mass tort litigation has wrestled with widespread, multijurisdictional problems that have greatly stressed the caseloads of courts. Certifying for trial multiple-incident, product-liability class actions for personal injuries has promised the resolution of expansive problems. But as appellate courts have increasingly held, these actions are not appropriate for class treatment because they involve numerous individualized issues that require unmanageable individualized adjudication. Without a perceived workable alternative, many trial courts have continued to try radical class action trial plans that violate state substantive law and federal constitutional law, but which bring tremendous pressure to settle upon defendants who fear they may not be able to obtain appellate review. Attempting to defuse this crisis, Congress recently passed the Class Action Fairness Act of 2005, greatly expanding federal jurisdiction for class actions. Once class actions are removed to federal court, however, the Act still provides no alternative for federal courts to the Hobson's choice framed by plaintiffs' counsel: certify a class, or be inundated with thousands of unmanageable, wasteful, and repetitive individual cases.
But that is a false dichotomy. This article argues that the alternative to mass tort class actions is not such isolated repetitive litigation, but instead an expansive set of litigation networks of counsel, judges, and clients, using recent advances in information technology, that provide much of the efficiency promised by class actions without violating state substantive or federal constitutional law. As an example, the article discusses the functioning of litigation networks in the ongoing litigation concerning phenylpropanolamine (PPA), an ingredient in cough and cold remedies and appetite suppressants that has been alleged to cause stroke. By sharing information, pooling resources, developing specialized expertise, and coordinating strategy, these networks not only reduce the costs and improve the representation of individual litigation, but also develop accurate claim values for settlement of numerous cases and allow for improved case management over time through pragmatic experimentation. The article concludes that mass tort litigation networks provide a fruitful alternative to impermissible product-liability class actions for personal injuries, and that judges should deny requests to certify such class actions and instead encourage and assist in the creation and functioning of litigation networks.