February 9, 2007
ALI Aggregate Litigation Principles in the Blogosphere
I've commented before on the American Law Institute's draft Principles of the Law of Aggregate Litigation, describing certain of its more provocative proposals and raising concerns about some of the ways in which it would facilitate aggregate resolutions. The draft, which is available for purchase from the ALI, clearly has more work ahead, but I think it's on the right track in trying to offer a coherent view of the benefits and risks of various forms of aggregate litigation. For anyone interested in mass torts and other complex multiparty litigation, it's well worth reading.
Yesterday, Beck and Herrmann at the Drug and Device Law Blog posted a long and detailed critique of the ALI draft, and their post got a rave review at Point of Law. The thrust of their attack is that the draft reflects a pro-aggregation, pro-plaintiff perspective that ignores the concerns of defendants:
Everyone who defends against aggregate litigation of any sort has good reason to be concerned about the current form of the ALI’s “Principles of the Law of Aggregate Litigation” – because it does not reflect legal principles that the defense community shares. Those who work the “D” side of the “versus” need to pay attention to this development and get (or stay) involved.
Some of their points are right on the money; there's no denying that the draft as a whole pushes toward more rather than less aggregation. The draft's position on issue classes, in particular, supports their point.
But to my mind, some of the most significant and controversial proposals in the ALI draft are those that reflect what many defendants have sought when looking for an exit strategy in mass litigation. I'm thinking of the proposals to facilitate settlement class actions and to enable binding aggregate settlements. Settlement-only class actions are driven by defendants seeking global resolutions. Such settlement class actions (not to be confused with class actions certified for litigation, which then settle) are the perfect example of class actions as a defense tool. Non-class aggregate settlements, similarly, often are driven by defendants seeking to resolve entire portfolios of claims efficiently and with finality. I've got concerns about these proposals, but not because they're unfriendly to defendants. On the contrary, my worry is that the proposals cater to the interests of mass litigation defendants (who want peace and finality) as well as the interests of mass plaintiffs' counsel (who want to resolve the cases for their clients, earn their fees, and move on), and, for that matter, judges (who want to control their dockets while gaining the satisfaction of producing a broad resolution). On these issues, the interests of defendants, plaintiffs' counsel, and the courts align; it's individual claimants themselves who are at risk of getting screwed.
February 8, 2007
Louisiana Tobacco Verdict Reduced
A Louisiana state appellate court affirmed class certification and liability but substantially reduced the damages in a class action for smoking-cessation programs, according to this AP story in the NY Times:
A Louisiana appeals court cut a $591 million verdict against tobacco companies by more than half and limited the kinds of smoking-cessation programs the money can be used for. Even so, a plaintiffs' attorney called Wednesday's ruling a victory that reaffirmed the original verdict, while a tobacco company said it would appeal to have the entire verdict thrown out. ... The Louisiana ruling by the 4th Circuit Court of Appeal in New Orleans was the first major development since jurors found in 2004 that tobacco firms had conspired for more than 50 years to distort public knowledge about the effects of smoking. ...
The ruling cut the amount of money for stop-smoking programs to $279 million. It also limited the kinds of programs it can pay for to traditional stop-smoking aids and limited the class to people who smoked before Louisiana's products liability law was passed in 1988. The class originally was defined as anyone who started smoking before the lawsuit was filed in 1996.
February 7, 2007
Study Finds Dangers for Bayer Heart-Surgery Drug Trasylol
Article in the Los Angeles Times -- Study finds dangers in heart-surgery drug, by Denise Gellene:
Raising fresh concerns about a widely used heart-surgery medicine, a study released Tuesday reported that the drug Trasylol increased patients' long-term risk of dying by nearly 50%.
An estimated 10,000 deaths worldwide could be avoided over the next five years if Trasylol were not used, according to the report in the Journal of the American Medical Assn.
The study, funded by the San Bruno, Calif.-based Ischemia Research and Education Foundation, said Trasylol was unnecessary for most patients because safer and cheaper alternatives were available. The drug, also known by its generic name, aprotinin, is used to control bleeding during open-heart surgery.
Dr. Dennis T. Mangano of the foundation and lead author of the study said Trasylol should be restricted to patients with the highest risk of bleeding complications.
February 6, 2007
Zyprexa Reporter Declines Invitation
Yesterday, New York Times reporter Alex Berenson declined Judge Jack Weinstein's invitation to testify concerning the acquisition and disclosure of sealed documents in the Zyprexa litigation. Torts Prof has a copy of the letter from the Times respectfully declining the invitation with an invocation of First Amendment principles and freedom of the press, and Point of Law comments.
Federal Agency Reviewing Coverage for Drug-Coated Cardiac Stents
Article in the Wall Street Journal -- Agency Reviews Stent Coverage, by Keith Winstein:
The agency that controls Medicare and Medicaid payments is considering restricting its coverage of drug-coated cardiac stents because of safety concerns.
Drug-coated stents, which prop open clogged arteries and slowly release a chemical to keep them from closing up again, have recently come under fire because of fears that they increase the risk of blood clots over the bare-metal stents that they have largely replaced. Some studies suggest that the clotting is especially apparent when the coated variety is used "off label" in high-risk patients -- often diabetics and those who have had heart attacks -- even though the Food and Drug Administration hasn't approved the devices for use in these patients.
Now, the Centers for Medicare & Medicaid Services, or CMS, says it is considering reopening its decision about how broadly to cover the stents. An agency spokesman said such a process, known as a National Coverage Determination, could result in restricting coverage of the stents to FDA-approved uses, keeping coverage the same, or something in between.
February 5, 2007
Symposium on FDA Drug and Device Regulations
On Feb. 16, 2007, the Seton Hall Law Review will host a symposium on the FDA: A Delicate Balance: The FDA's Drug and Device Regulations, Public Health, Intellectual Property and the Economy. Panels will address the FDA approval process, intellectual property and drug innovation, and the link between FDA policies and health care economics. The keynote speaker is Daniel Meron, General Counsel of the Department of Health and Human Services. The conference will take place at Seton Hall Law School in Newark, NJ.
February 4, 2007
Plaintiffs' Attorneys, Daubert, and the Choice Between Federal and State Court
Point of Law notes an interesting post and responses on The Volokh Conspiracy regarding plaintiff attorneys' avoidance of federal court to avoid the perceived strictness of Daubert evidentiary rulings.
FDA Considers Partial Ban on Skin Lighteners
Article in the Chicago Tribune -- FDA weighs curb on skin lighteners, by Robert Cohen of the Newhouse News Service:
The Food and Drug Administration is considering a partial ban on widely used cosmetic skin fade creams and lotions, warning that the bleaching agent hydroquinone contained in the products might cause cancer and a disfiguring condition.
Dermatologists and manufacturers insist the products are safe and are urging the FDA to back off.
Although the products have been on the market for decades, the FDA reported in the summer there was "some evidence" from studies that hydroquinone can cause cancer, liver lesions and kidney disease in rodents. The FDA also said it could cause a disfiguring skin condition in people called ochronosis, which causes the skin to become dark and thick and results in dome-shaped yellowish spots and grayish-brown spots.
E.Coli Has Shaken Consumer Confidence in Leafy Green Vegetables
Article in the Chicago Tribune -- Consumers Still Worried About E. Coli, by Janet Frankston Lorin of the Associated Press:
September's national spinach recall has shaken consumer confidence in the safety of leafy green vegetables, according to a new national survey.
Consumers are still avoiding greens and questioning safety issues, months after spinach contaminated with E. coli bacteria killed three people and sickened nearly 200.
Plummeting spinach sales have also prompted the produce industry to seek federal oversight to assure buyers that fresh produce is safe.
"We need to be in front of this to maintain consumer confidence," said Tom Stenzel, president of the United Fresh Produce Association, a leading trade group. "Consumers need to eat fresh produce and feel safe in their choices," he said.
A new national survey to be released Monday by Rutgers University suggests that the broad recall could have lasting effects on spinach and other similar vegetables. As a result, consumers felt uncertain and threw away other bagged produce that was not affected by the recall.