Saturday, May 31, 2008
Editorial in the Wall Street Journal -- Vindicating Vioxx. Here's an excerpt:
Texas and New Jersey may have different political cultures, but appeals courts in both states this week delivered a one-two punch to the liability suits against Merck for its Vioxx painkiller. In Texas, a court overturned a $26 million 2005 jury verdict against the drug company, while New Jersey's court whittled down an earlier verdict to exonerate Merck from a finding of consumer fraud and eliminate punitive damages.
The rulings are evidence that some sanity still exists in the tort system – at least at the appellate level. In Texas, the court's Chief Justice Adele Hedges said there was "no evidence" that the patient had suffered a cardiovascular event as the result of a blood clot or that Vioxx was in any way related to the death. Those are strong words for a case that the trial bar had celebrated as the start of a huge payday.
At the beginning of the Vioxx hysteria, some analysts predicted Merck's liability could spiral as high as $30 billion, threatening the company itself. Last year, Merck settled most of the cases for $4.85 billion. But since Vioxx was taken off the market in 2004, only three of the 20 suits that have gone to juries have ended favorably for plaintiffs. There were other reality checks along the way: Vioxx plaintiffs were denied class-action status in a federal court in 2006, and by the New Jersey Supreme Court last year.
Friday, May 30, 2008
Article in the Houston Chronicle -- Court tosses Vioxx award: Houston panel rules plaintiff will get none of the $26 million, by Mary Flood. Here's an excerpt in which I'm quoted:
A Houston appellate court Thursday overturned a $26 million Angleton jury finding that a 59-year-old triathlete died because of his use of the popular painkiller Vioxx.
The 14th Texas Court of Appeals ruled that Bob Ernst's widow, Carol Ernst, should receive nothing because the more than one month of testimony in the nation's first Vioxx trial contained insufficient evidence to prove the drug caused his heart problem and death.
The ruling on the 2005 trial came the same day a New Jersey court struck down most of a 2006 jury verdict against Vioxx maker Merck & Co.
Earlier this month, an appellate court in San Antonio overturned a $32 million jury award to a widow in South Texas who claimed her husband died of a heart attack because of Vioxx.
Los Angeles-based Southwestern Law School professor Byron Stier, who writes about cases like the Vioxx suits, said that though these big cases are all different, Merck's success with trying many cases and keeping the damage contained will be a lesson to others.
Merck saved about $40 million in damages and attorneys fees in just these two decisions Thursday.
"A mass tort that could have bankrupted Merck has become manageable," Stier said.
AmLaw Daily has a related post, Mark Lanier's Faith Tested: He Loses Two Vioxx Appeals in One Day, by Andrew Longstreth. Here's a roundup of media coverage from the Wall Street Journal Health Blog.
Thursday, May 29, 2008
The ABA's Mass Torts Litigation Committee has posted its Spring 2008 Newsletter, which includes the following articles:
Foreign Torts and the Commerce Clause: Territorial Limitations On State Power To Impose Punitive Damages, by William E. Thomson (Gibson Dunn)
Public Nuisance Update: This Dog is Still Barking, by Charles H. Moellenberg, Jr., Lisa G. Silverman, and Laura E. Ellsworth (all of Jones Day)
Climate Change Litigation: When and Where Will the Next Storm Hit, by Christopher R. Reeves (Swift Currie)
Shining a Spotlight on Stipulated Class Counsel Fee Awards—The Trend Toward Greater Judicial Scrutiny, by Christopher H. Angins (Holland & Knight)
Three Rules for Young Lawyers, by Christopher G. Campbell (DLA Piper)
Article in the Wall Street Journal -- Pfizer Seeks to Counter Chantix Concerns, by Alicia Mundy and Avery Johnson. Here's an excerpt:
Pfizer Inc. is preparing an advertising and public-relations campaign to counter concerns about its antismoking drug Chantix, once trumpeted as a potential billion-dollar-a-year blockbuster.
Chantix is drawing scrutiny from federal regulators and a tough congressional critic of the pharmaceutical industry following revelations about potentially dangerous adverse events such as heart irregularities, seizures and more than 100 accidents linked to use of the drug.
An important issue is whether Chantix is effective at dosage levels that are safe for its users. This was a concern for FDA researchers prior to the drug's approval, according to agency records.
Amy Schulman, who heads the mass tort/class action practice at DLA Piper, will be the next general counsel at Pfizer. Ms. Schulman lead the Celebrex and Bextra litigations for Pfizer (see WSJ blog and article), and was also the subject of a Harvard Business School case study entitled, Leadership in Law: Amy Schulman at DLA Piper. For more, see this post from AmLaw Daily.
Wednesday, May 28, 2008
Article in AmLaw Daily -- Defending Mel Weiss, by Ben Hallman. Here's an excerpt:
Mother Teresa, move aside. Melvyn Weiss, a plaintiffs lawyer who made millions of dollars by suing corporate America--and who recently pleaded guilty to a racketeering conspiracy for paying kickbacks to clients in many of those cases--deserves recognition as "one of the greatest humanitarians of our time," according to a sentencing memo his lawyer filed Friday.
The table of contents sets the tone for the memo, which is effusive in its praise of Weiss. "The scope of the charity and generosity of Melvyn Weiss is breathtaking," reads the header to one section. Weiss has a "compulsion" to make the world a better place, reads another. He is also "spontaneously kind," the memo says.
On March 17, Weiss signed a plea deal calling for a sentence of 18-33 months, admitting that he "engaged in a pattern of racketeering activity" for at least 26 years. In a subsequent memo to the court, prosecutors asked California district court judge John Walter to sentence Weiss to the full 33 months. The Weiss memo, filed by attorney Benjamin Brafman, pleads for leniency. "The shame Mr. Weiss has suffered and will continue to suffer is overwhelming," it says. "To be candid, it is difficult to imagine a greater punishment than the punishment that has already been imposed by the public humiliation...as he now deals with the prospect of incarceration and the indignity of disbarment."
Monday, May 26, 2008
Article in the L.A. Times -- Pet food companies OK $24-million settlement, by the Associated Press. Here's an excerpt:
Companies that were sued over contaminated pet food linked to the deaths of perhaps thousands of dogs and cats have agreed to pay $24 million to pet owners in the United States and Canada.
The settlement is detailed in papers filed late Thursday in U.S. District Court in Camden, N.J. It still needs a judge's approval; a court hearing is set for May 30.
"The settlement attempts to reimburse pet owners for all of their economic damages," said Russell Paul, a lawyer for the plaintiffs.
AmLaw Daily provides more detail in its post, Massive Pet Food Recall Lawsuit Settles, by Andrew Longstreth. Here's a link to the joint motion filed for certification and approval of the class settlement.
Friday, May 23, 2008
Gardiner Harris of the New York Times reports today in an article entitled "FDA to Expand Scrutiny of Risks From Drugs After They're Approved for Sale" that the FDA has a new program called the "Sentinel Initiative" that will monitor how approved drugs affect consumer health. They will use information from Medicare beneficiaries.
Researchers praised the government initiative, but many said its fruits would take years to realize. And several said the Bush administration’s policy of delivering the Medicare drug benefit through myriad private plans made the effort that much more difficult.
“This is going to take a lot of work,” said Dr. Bruce Psaty, a professor of medicine and epidemiology at the University of Washington.
Mr. Leavitt said “the power of this is in the capacity to take disparate databases and use it in a productive way.” Dr. Janet Woodcock, director of the F.D.A.’s drug center, agreed that much work remains to be done.
The article points out that this is better than what the FDA does now (the article explains that the FDA currently has "an unsystematic system in which doctors, patients and manufacturers report problems with drugs and medical devices when they deem them important.") There are several problems with using Medicare data, including the fact that it is claims data not patient records and the fact that Medicare recipients use many more drugs than the general population, and are sicker than the general population.
Thursday, May 22, 2008
The Institute for Safe Medicine Practices, a non-profit group organized to improve drug safety and review the FDA's adverse-event reports, recently released a study on Chantix. The report indicated a greater spectrum of side effects, including heart trouble, seizures, and diabetes in addition to the effects already identified such as suicide and depression. Here's an excerpt from the Wall Street Journal:
Thomas Moore, the study's lead author and the institute's senior scientist for drug safety, called on Pfizer and the FDA to "immediately" strengthen Chantix's label warnings and rigorously examine emerging safety issues. "Based on the data available now, the existing warnings are completely inadequate," he said. "You'd expect a stop-smoking drug to have a relatively low number of reports," because it isn't used in high-risk patients.
. . .
Mr. Moore's study links the drug to a greater spectrum of maladies. The report identified 173 injuries, including falls and traffic accidents, involving people taking Chantix that were possibly the result of such factors as muscle spasms, dizziness and confusion. The FDA data also contain 224 reports of potential heart-rhythm disturbances, 372 reports of possible movement disorders and 544 reports of likely glycemic problems, including diabetes.
After just months on the market, Chantix broke into the small group of medicines with more than 100 reports of serious injury. In the 2007 fourth quarter, with nearly 1,000 reports, it topped the group's list of 769 drugs examined in the U.S. for serious side effects. By contrast, the median number of serious-injury reports for other drugs is five. Most medications that came close to Chantix carry the FDA's most-serious "black box" warning, the study says.
The institute's findings have limitations. Using adverse-event reports doesn't establish a causal relationship between a drug and a side effect. Such reports are turned in by doctors, patients and sometimes plaintiffs' lawyers positing a connection but not proving one. Mr. Moore, who has consulted for plaintiffs' attorneys on drug issues, said the study isn't being published in a medical journal because he wanted to publicize the findings more promptly. A spokeswoman for the ISMP says that the group doesn't receive funding from plaintiffs' attorneys or other parties with a commercial interest in this report, and is primarily financed through subscriptions to its newsletter and grants.
There have been several reports lately about the mishandling of Fen-Phen settlement funds in Kentucky. Here are two excerpts. The first is from the Wall Street Journal Law Blog:
There are many bizarre aspects of the story behind the three Fen Phen lawyers on criminal trial for alleging bilking their clients out of $65 million of settlement money. The most well-reported oddity is that two of the lawyers used settlement funds to invest in the race horse, Curlin. But how about their decision to donate $20 million of the $200 million settlement to a charitable fund — called the Kentucky Fund For Healthy Living — that they created and controlled, and for which they allegedly paid themselves about $150,000 each to manage?
That part of the case came to light yesterday, as Joyce Brown, a plaintiff in the Fen-Phen case, testified in federal court that she specifically opposed the charity idea. According to this report in the Herald-Leader, Brown testified that she phoned the law office of William Gallion (pictured, right), one of three lawyers now on trial, to express her opposition, but a woman told her that the charity plan was going through, and that she had no choice in the matter. Another plaintiff, Connie Centers, testified that no one discussed a charitable contribution with her.
The second is from the Lexington Herald-Leader:
A Lexington woman who was a plaintiff in a $200 million fen-phen class action settlement testified in federal court Tuesday that she specifically opposed plans by three lawyers in the case to donate leftover settlement money to charity.
Joyce A. Brown said that when she telephoned the Lexington law office of William Gallion to express her opposition, a woman on the phone told her that the charity plan was going through, and that she had no choice in the matter.
Another plaintiff, Connie Centers of Lawrenceburg, said no one ever discussed a charitable contribution with her.
Gallion and fellow attorneys Melbourne Mills Jr. and Shirley Allen Cunningham Jr. ultimately placed about $20 million of settlement money in a charitable foundation they created and controlled. They also paid themselves about $150,000 each to manage the fund, called the Kentucky Fund For Healthy Living.
Mills, Cunningham and Gallion are on trial in federal court for conspiracy to commit wire fraud in their handling of the settlement, which grew out of a class-action lawsuit they filed in Boone Circuit Court in 1998 against American Home Products, the company that marketed fen-phen.
Prosecutors allege that the defendants unlawfully pocketed millions from the settlement, defrauding their clients out of about $65 million.
Wednesday, May 21, 2008
Article on cnnmoney.com -- FAA bans Pfizer anti-smoking drug. Our initial Chantix blog post in November 2006 has so far lead to 178 comments, most of them describing physical and mental problems occurring in people using Chantix. Here's an excerpt from today's article:
Pfizer Inc.'s once-promising anti-smoking drug Chantix received another blow Wednesday after a nonprofit group's report about serious physical side effects prompted the Federal Aviation Administration to ban the drug's use by pilots and air traffic controllers.
The report, from the Institute for Safe Medication Practices, points out hundreds of serious problems reported since the popular drug was approved in May 2006, including dizziness, loss of consciousness, seizures, and abnormal spasms and movements.
Article in the Wall Street Journal -- Merck Will Pay $58 Million To Settle Vioxx Ad Claims, by Kevin Kingsbury. Here's an excerpt:
Merck & Co. agreed to pay $58 million to settle claims by 28 states and the District of Columbia that the drug maker used deceptive advertising for its Vioxx painkiller.
The drug maker also agreed to a ban on medical ghostwriting, under which an author's true identity is concealed. Last month, two medical-journal studies suggested Merck violated scientific-publishing ethics by ghostwriting dozens of academic articles, and minimized the impact of patient deaths in its analyses of some human trials involving Vioxx.
Pennsylvania Attorney General Tom Corbett said Tuesday that in 1999, Merck launched "an aggressive and deceptive advertising campaign which misrepresented the safety and improperly concealed the increased risks associated with Vioxx." The drug was pulled from the market in 2004, after safety concerns were raised.
Since law professors love lists and hierarchies, I thought it might be fun to consider the best articles on the subject of this blog: mass tort litigation. I have excluded from the list below (1) any participants in this blog and (2) empirical studies. Of course, books are excluded as well. A list of the best empirical studies on complex litigation is a project for another day. I suggest 7 below, thanks to at least one wise suggestion, and look forward to more nominations. Those of you starting out in the field, these might be a good place to begin your research.
So, without further ado, my suggestion for the best law review articles on mass torts, in chronological order.
David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 Harv. L. Rev. 851 (1984).
Francis McGovern, Resolving Mature Mass Tort Litigation, 69 B.U. L. Rev. 659 (1989)
Robert G. Bone, Statistical Adjudication: Rights, Justice and Utility in a World of Process Scarcity, 46 Vand. L. Rev. 561 (1993)
Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469 (1994)
Richard A. Nagareda, Turning From Tort to Administration, 94 Mich. L. Rev. 899 (1996)
William B. Rubenstein, A Transactional Model of
Adjudication, 89 Geo. L.J. 371 (2001)
Samuel Issacharoff & John Fabian Witt, The Inevitability of Aggregate Settlement: An Institutional Account of Tort Law, 57 Vand. L. Rev. 1571 (2004)
Tuesday, May 20, 2008
Thursday, May 15, 2008
Hot off the presses, here's Timothy Lytton's new book on the Catholic Church sex abuse litigation -- Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008). The book builds on Lytton's related work of the past few years. Here's the abstract as posted on SSRN:
The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system's remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.
Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs' lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church's massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.
As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.
I just posted a piece that I wrote for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation on bepress (download here) and SSRN (download here). The piece should appear on both these links shortly. Here is the abstract:
This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement, (ii) the costs of inconsistency, and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society.
David Marcus of the University of Arizona has written an extensive book review of Richard Nagareda's Mass Torts in a World of Settlement. The review, entitled Some Realism about Mass Torts, will appear in the University of Chicago Law Review. Here's the abstract:
This essay reviews Richard Nagareda's Mass Torts in a World of Settlement. Nagareda argues that the settlement of a mass tort is an act of governance because it involves the exchange of rights to sue of large classes of plaintiffs for a compensation regime. Some source of legitimacy must give plaintiffs' attorneys, who lack contractual relationships with these plaintiffs, the power to alter these pre-existing rights as fixed by substantive law. Litigation-centered ideals of due process, Nagareda concludes, fall short because they emphasize individual autonomy and thus preclude the sort of mandatory representation settlement requires. He turns to rulemaking to solve the problem of legitimate governance. Agencies should adopt mass tort settlements as public rules.
Masterfully dissecting most of the major mass tort settlements of the past decade, Nagareda convincingly explains how and when mass torts settle, as well as why these settlements often fail. Where Nagareda's otherwise realist account takes a formalist turn is with his claim that plaintiffs have pre-existing rights to sue fixed by substantive law. I argue that a realist account of rights to sue includes procedural avenues for their attempted vindication, as well as their substantive contours, as essential components. This account supports the entity theory of the class action that treats the class as something different than merely an assemblage of individual litigants. The entity theory in turn justifies less scrupulous attention to the due process rights of individual class members. Since these due process rights have often precluded settlement, the entity theory offers a theoretical avenue around some of the difficulties that Nagareda believes justifies a turn to rulemaking.
Wednesday, May 14, 2008
As reported in the New York Times by the Associated Press. The plaintiff in Garza v. Merck initially won $32 million, which was reduced to $7.75 million. The AP reports that "the Texas Fourth Court of Appeals overturned the verdict, ruling that the defendants had not proven that Mr. Garza’s history of heart disease could not have been the cause of his fatal heart attack in 2001."
The article goes on to note "After the trial, a juror admitted borrowing thousands of dollars from Mr. Garza’s widow, Felicia Garza, although that does not seem to have been a factor in Wednesday’s appellate court decision." Yipes!
While not specific to mass torts, Kevin Clermont has posted his latest empirical work, Litigation Realities Redux, which is broadly applicable to the litigation process.
Here's the abstract:
Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.
Friday, May 9, 2008
Yesterday, Gov. Tim Pawlenty signed a $38 million settlement for victims of the I-35W bridge collapse. Here's the AP story in USA Today. Interestingly, state legislator Phyllis Kahn, who co-authored the compensation bill, was quoted in this article in the Minnesota Daily as saying that the bill was modeled after the 9/11 Victim Compensation Fund, including the waiver of the right to sue the state. For reasons I explained on Monday, the Minnesota compensation deal is better understood as an ordinary mass tort settlement rather than as an extraordinary government compensation package like the September 11 Fund. There's an enormous difference between the government's using taxpayers' money to settle potential claims against that government (the Minnesota deal) and the government's using taxpayers' money to settle potential claims against others (the 9/11 Fund, which used federal government funds but required participants to release whatever claims they may have had against the airlines or Port Authority). The former might occur anytime a government defendant faces mass tort claims. That's why the Minnesota package makes me glad as long as both the claimants and the state are satisfied with its terms. The latter, however, can rarely be justified. This is the point that special master Ken Feinberg made powerfully in his final report on the Victim Compensation Fund: the 9/11 situation and the government's generous response to it should be viewed as sui generis. That strikes me as exactly right, which is why it makes me nervous to hear the 9/11 Fund invoked as a model for something that in fact is quite different and much less problematic.