November 17, 2007
Poncebo on Regulation and Litigation in the EU
Not quite mass tort scholarship, but perhaps heralding the precursor to mass tort litigation in the EU, is an article recently posted on SSRN by Christina Poncibo (European University Institute) entitled Regulation and Private Litigation: A Debate Over the European Perspective. Here is a portion of the abstract:
The aim of this paper is to present and to discuss the interaction of regulation and private litigation in the European-single-market. The arguments ground both on the regulatory failures and on the fact that shareholders and consumers' actions are mushrooming in the Member States and various nations, including the Netherlands and the United Kingdom, have enacted or are enacting laws allowing aggregation methods to make mass litigation more efficient. The trend toward mass lawsuits, combined with emerging consumer friendly substantive laws and the availability of U.S.-style practices, will probably create a new litigation landscape in Europe over the next few years.
Senate Report Criticizes Glaxo's Treatment of Physician Raising Avandia Concerns
Article in the Wall Street Journal -- Glaxo's Handling of Physician Criticized, by Jeanne Whalen. Here's an excerpt:
Over a period of several years, drug maker GlaxoSmithKline PLC was so concerned about a prominent physician's negative views of its diabetes drug that it engaged in a concerted effort to intimidate him and stifle his opinion, a report by the U.S. Senate Finance Committee found.
The report offers a window into the rarely acknowledged practice among drug companies of monitoring and seeking to influence the opinions of leading physicians, who can make or break a drug's sales. The report alleges that Glaxo Chief Executive Jean-Pierre Garnier and former research chief Tachi Yamada were involved in the intimidation.
The Senate Finance Committee released the report Thursday, after researching Glaxo's relationship with John Buse, a diabetes expert and professor of medicine at the University of North Carolina in Chapel Hill. In 1999, Dr. Buse began expressing concerns about the cardiovascular risks of Avandia, one of Glaxo's top selling drugs.
November 16, 2007
Concern Over Plaintiff Counsel Ethics in Vioxx Settlement
Article in the Wall Street Journal -- Vioxx Plaintiffs' Choice: Settle or Lose Their Lawyer, by Nathan Koppel. Here's an excerpt:
Plaintiffs in litigation over the painkiller Vioxx are supposed to be able to decide whether to enroll in the übersettlement announced last week or take their cases to court. But due in part to what lawyers say is an unusual provision in the settlement agreement, many plaintiffs in effect may have little choice but to accept the deal.
The provision, agreed to by Merck & Co. and the lead lawyers in the case, requires that if one client of an attorney enrolls in the settlement, then the attorney must recommend the deal to all other clients. If a client decides not to take part in the settlement, then the lawyer, according to the deal, must take "all necessary steps" to withdraw from representing that client. It is relatively rare for a settlement to require lawyers to cut ties with clients, but it appears to be happening more often, lawyers say.
Some find the development problematic. The provision improperly "stacks the choice for the client," says Deborah Rhode, an ethics professor at Stanford Law School. "If the price of exercising what should be their right to reject the settlement means they have to forfeit their representation from the lawyer actually familiar with the case, it's not exactly an uncoerced choice."
Merck pulled the widely used painkiller Vioxx from the market in September 2004 because it was tied to a higher risk of heart attack and stroke. Thousands of lawsuits ensued, and after three years, Merck and the lead plaintiffs lawyers negotiated a $4.85 billion settlement, announced Friday.
Professor Kelly Strader on the Milberg Weiss Prosecutions
Professor Kelly Strader of Southwestern Law School has published his article, White Collar Crime and Punishment: Reflections on Michael, Martha, and Milberg Weiss, 15 George Mason L. Rev. 45 (2007). The article discusses allegations that certain Milberg partners paid class representatives. Here's the abstract from the SSRN post of the article:
We are deeply conflicted about white collar crime and punishment. This conflict is largely born of the government's use of novel, “gray-area” legal theories in many high profile white collar prosecutions. Such prosecutions, which seek to expand the scope of existing crimes, tend to undermine the integrity and expressive function of our system of white collar criminalization. These prosecutions also may violate the defendants' right to fair notice of the possible crimes with which they may be charged. We need a new approach. First, in such “gray-area” cases, we should rely upon civil and administrative remedies except in extraordinary circumstances. Second, we should assess whether extraordinary circumstances exist by examining whether the defendant's alleged acts caused substantial, identifiable harm. To test this approach, I examine three of the most significant economic fraud investigations and prosecutions of the last 20 years – those of Michael Milken, Martha Stewart, and the Milberg Weiss law firm. I conclude that none of the cases warranted criminal prosecution on “gray-area” economic fraud theories, and that assertion of those theories actually served to undermine our confidence in white collar criminalization and punishment.
November 14, 2007
DBCP Verdict in Los Angeles
Torts Prof has a post on a recent verdict in California in the DBCP litigation, with links to news accounts. Dow Chemical Co. and Dole Food Co. were held liable for $3 million in compensatory damages to six plaintiffs. The jury decided against six other plaintiffs, finding no causation. The trial then moved to a punitive damages phase. DBCP (dibromochloropropane) is a pesticide that was used in the 1970s on banana plantations around the globe, and was discontinued when studies linked it to infertility. The DBCP litigation has been going on for some time; I worked on a piece of it in the early 1990s as an outside lawyer for Del Monte.
November 13, 2007
Conference on Vioxx Settlement
That was fast. Mealey's is hosting a conference on the Vioxx settlement at the Ritz-Carlton in New Orleans on Dec. 10-11, 2007. Plaintiffs' lawyers only. According to the Mealey's marketing e-mail, the speakers include a number of the plaintiff-side negotiators and other key players, including Andy Birchfield, Edward Blizzard, Thomas Girardi, Mark Lanier, Arnold Levin, and Chris Seeger.
You can bet plaintiffs' lawyers deciding whether to recommend the Merck settlement to their clients will ask a lot of questions about claimant eligibility and compensation, as well as about their own legal fees. I hope that some of them push hard, as well, on the professional responsibility issues raised by the deal, such as how to provide clients with enough information to obtain informed consent as required by the aggregate settlement rule, and whether it would be ethical to abandon any client at this point in the litigation if the client chooses -- as is each client's absolute right -- to decline the settlement offer. Comments on legal ethics issues raised by the deal may be found in my earlier post on implications of the Vioxx settlement, as well as at the WSJ Law Blog, Pharmalot, and Point of Law.