Monday, June 16, 2008
For mass tort plaintiffs' lawyers, the scariest legal issue of the moment is preemption. If FDA approval of a warning or product preempts state law tort claims, lots of otherwise viable mass torts disappear. Preemption has figured prominently on this blog in recent months, including here (on the Third Circuit Colacicco decision), here (on the Supreme Court split in Warner-Lambert), and here (on the Supreme Court decision in Riegel).
Plaintiff lawyers' preemption dread picks up on a running theme: tort reform as a supposed death knell for mass tort litigation. A year and a half ago, Byron Stier commented on Alison Frankel's American Lawyer piece declaring the end of the wild west era of mass tort litigation. Two months ago, we linked to a Houston Chronicle interview with a legal recruiter suggesting dim prospects for mass torts in the wake of tort reform. But mass litigators are nothing if not enterprising and resilient. To me the interesting question is not "Will mass litigation dry up?" but rather "If pharmaceutical mass torts and medical devices litigation dry up because of preemption, what's the mass litigator's next move?"
Earlier this month, Forbes.com ran a piece by William Barrett called Looking for Mass Torts. Reporting on the latest Mass Torts Made Perfect plaintiffs' attorneys conference in Las Vegas, Barrett describes the gathering's potent mix of doomsdayism and entrepreneurial verve:
But behind this bravado the lawyers are running scared. After decades of victories in asbestos and tobacco, they are contending with appeals courts rulings reining in class actions involving drugmakers. A case now before the Supreme Court could sharply curtail their bread-and-butter tort suits. The defendants are asking the court to decree that suits built on the theory that drug labels had inadequate warnings are preempted by Food & Drug Administration regulation of labels.
"These are scary times," said R. Larry Morris, another partner in the law firm of Levin Papantonio Thomas Mitchell Echsner & Proctor. Philadelphia lawyer Fred S. Longer made a presentation entitled "fda Preemption: Is This the End?"
But good businesspeople that they are, these legal practitioners are hedging their bets by seeking new markets. One possible new territory where preemption is not a big problem is litigation over environmental debacles. (Witness the recent extraction of money from gasoline refiners who damaged groundwater with a federally approved additive.) The tort mavens also talked about switching to securities law, a field not especially starving for practitioners.
The prospect of mass litigators turning from one type of litigation to another as legal developments alter their cost-benefit analysis is a theme I explore in a forthcoming article on the impact of CAFA. CAFA altered forum-selection strategy directly and indirectly in interesting ways, but beyond that, it appears to have had an impact on claim selection and litigation emphasis as well. Preemption could affect the work of mass litigators even more emphatically than CAFA has.