March 20, 2008
Stanford's Global Class Action Clearinghouse Website
As a follow-up to the Globalization of Class Actions Conference in Oxford last December, Stanford has launched the Global Class Actions Clearinghouse Website. As Deborah Hensler writes, "[W]e hope [this website] will also become a repository for statutes, rules and important cases; articles and commentary; and news of developments and events related to the evolution of representative litigation, class actions and group proceedings worldwide." For those of you who would like to be consulted on class action developments within your country, send an e-mail to Deborah Hensler with your name, title, and institutional affiliation. Many thanks to Deborah, Christopher Hodges, and Stanford for spearheading this project, which will certainly improve the dissemination of knowledge about class actions worldwide.
Philadelphia Asbestos Verdict - $25.2 million
The Legal Intelligencer reports that after a reverse-bifurcated trial, a Philadelphia jury awarded $25.2 million in compensatory and punitive damages to compensate for malignant mesothelioma deaths. Plaintiffs in the three cases requested Kentucky law; two settled after the compensatory damage phase. According to plaintiffs’ attorneys, Kentucky law ultimately permitted the jury to award higher punitive damages than it could under Pennsylvania law. Here’s an excerpt:
His case, Baccus v. Crane Co., was brought against the Crane Co., John Crane and Yarway, a company. The defendants sought to have Kentucky law apply to the jury's findings in Baccus and the judge agreed. The jury had previously awarded $7 million in compensatory damages to Baccus and apportioned liability in the amount of 45 percent against John Crane, 35 percent against Crane Co. and 20 percent against Yarway, Shein said.
The jury, applying Kentucky law, also found Yarway and Crane Co. "grossly negligent for failure to warn of the dangers of asbestos in reckless disregard of the safety of others," Shein said. The jurors assessed $11.9 million in punitive damages against Crane Co. and $6.3 million against Yarway.
Shein said this is the first case in Philadelphia he has seen in more than 20 years in which a jury awarded punitive damages in an asbestos case. He said the standard for applying such damages in an asbestos case in Pennsylvania is "much, much higher." He said Pennsylvania usually defers the finding of punitive damages until later in the case whereas Kentucky law instructs the court to do it sooner.
The defendants, Shein said, wanted to apply Kentucky law because it uses an apportioned liability standard in which each of the defendants, even those who previously settled, are given an individual portion of liability. The Pennsylvania model is more akin to "in for a penny, in for a pound," Shein said, in which each defendant splits the damages equally.
"The thing kind of backfired on them because the jury held all of the settled defendants zero-percent responsible," he said.
The defendants that settled before the compensatory damages phase of the trial were Ingersoll Rand, THAN, IMO/DeLaval, Westinghouse, Owens Illinois and Goulds Pumps.
March 17, 2008
Sunshine in Litigation Act
According to the New York Times, the Senate Judiciary Committee has approved a bipartisan Sunshine in Litigation Act bill "that would require federal judges to consider public health and safety before granting protective orders, sealing court records, or approving a settlement agreement." The article speculates that the need "is especially great right now when federal agencies charged with protecting Americans lack the resources and the will to exercise strong oversight." Here’s an excerpt:
Under the bipartisan bill — the Sunshine in Litigation Act — judges will still have discretion about whether to grant a request for secrecy. First they will have to apply a sensible balancing test that takes into account both the public’s interest in learning of a potential hazard and the defendant’s legitimate interests in secrecy, say to protect trade secrets.
The bill, sponsored by Senators Herb Kohl of Wisconsin and Patrick Leahy of Vermont, both Democrats, and Lindsey Graham, a Republican from South Carolina, is similar to laws already on the books in several states.
Business interests opposed to the bill argue that it would discourage settlements, clog the courts with more trials and hurt plaintiffs by requiring lengthy fights over production of documents. Yet there has been no legal meltdown in jurisdictions that now have similar rules.
Although the Act may affect judicial calculations in granting protective orders and sealing court records in mass tort cases, because most mass torts aren’t certified as class actions, settlements do not require judicial approval under Rule 23.
Drug Import Safety and the FDA
A New York Times Article by Gardiner Harris published today highlights the problems in FDA monitoring of imported drugs due largely to lack of funding. The article is available here. The bottom line is this:
The Institute of Medicine, the Government Accountability Office and the F.D.A.’s own Science Board have all issued reports saying poor management and scientific inadequacies make the agency incapable of protecting the country against unsafe drugs, medical devices and food.
Indeed, in the years since the last China drug scandal, the share of drugs coming from that country has soared while the F.D.A.’s inspections of overseas drug plants have dropped. There are 566 plants in China that export drugs to the United States, but the agency inspected just 13 of them last year.
According to the article, 80% of "of the active pharmaceutical ingredients of drugs consumed in the United States are manufactured abroad."
Congress is apparently considering proposals for fee-based funding of inspections of foreign plants. Consumer groups oppose it because it creates a potential conflict of interest for the FDA. The article quotes the CEO of a European pharmaceutical manufacturer supporting user fees.