April 18, 2008
What do mass tort scholars do in their down time? ... Well, read a mass tort novel, of course. John Grisham's latest book, The Appeal, involves a toxic tort of groundwater pollution that injures many in a Mississippi town -- sort of Grisham thriller meets Jonathan Harr's A Civil Action. The plot steers off into pursuing issues of judicial elections, but along the way there are plenty of mass tort themes, involving David vs. Goliath plaintiff-defendant litigation, class actions, and the implications of a trial verdict for case inventories. I'm in the middle and having fun, as I have reading Grisham since The Firm came out back in the early 90s.
For the last few years, I've been gradually assembling a "mass tort movie library" of DVDs, which I lend out to students in my mass tort litigation class, and I use a clip of the film version of A Civil Action in class. I've been mulling over incorporating excerpts from novels in my class, as well -- Grisham's King of Torts also sounds many mass tort themes. Part of the appeal of studying mass tort litigation is the variety of perspectives available -- not only substantive and procedural, but also factual and fictionalized.
Is mass tort litigation a depressed market?
In an interview with the Houston Chronicle, Texas legal recruiter Susan Pye answered questions about today's legal job market. When asked what areas are hot, she mentioned energy law and transactional work. She was not so sanguine, however, about mass tort work:
Q: Which lawyers are not in demand?
A: Toxic tort and other mass tort litigators. That's a depressed market.
Tort reform really impacted these lawyers. In most cases they don't have portable business, if they had it, it was tied to one mass tort, like asbestos cases.
Some may be more senior, experienced lawyers, too. That's not helpful, the more experienced lawyers without portable business who did mass tort, product liability cases like asbestos cases, those are largely shut down.
In litigation, she said, "mostly commercial cases are left."
Drug Companies Push for Easier Off-Label Rules
This morning's Wall Street Journal reports that several major drug companies are pushing the FDA to relax its requirements for off-label drug use. Here's an excerpt:
Ten major drug companies, including Pfizer Inc.; Bayer Corp., the U.S. unit of Bayer AG; AstraZeneca PLC; and Johnson & Johnson have formed a coalition to push for looser restrictions on off-label marketing. They will submit their arguments Friday to the Food and Drug Administration, which has been soliciting comments on its proposed off-label promotion guidelines. They are represented by former FDA Chief Counsel Daniel Troy, who is working with public-relations giant APCO Worldwide Inc.
Mr. Troy's group includes patient-advocacy organizations the National Alliance on Mental Illness and the National Organization for Rare Disorders. The group supports the ability of companies to disseminate articles from peer-reviewed medical journals to physicians and hospitals to inform them of new conditions for which drugs already on the market could be used but which the FDA hasn't formally approved.
The FDA said it isn't loosening the rules for industry, but clarifying them. Randall Lutter, the agency's deputy commissioner for policy, said the guidelines mandate full disclosure of any conflict of interest by journal authors in articles used in off-label promotion.
The push for off-label changes came just as the Journal of the American Medical Association suggested in two reports that Merck & Co. played down the potential risk to Alzheimer's patients of heart attack from its now-withdrawn painkiller Vioxx, and said the company had ghostwritten many academic articles favorable to that drug.
Drug-industry worries about new rules and a chilly climate in Washington were reflected at a conference here Thursday. More than 60% of participants polled during the annual conference sponsored by drug-marketing magazine DTC Perspectives said they think Congress may move to place limits on television advertising by pharmaceutical companies. Drug makers spend about $5.4 billion annually on TV ads, according to Nielsen Monitor-Plus.
April 17, 2008
Class Action Watch Issue
The Federalist Society has posted the March 2008 issue of Class Action Watch. Articles include the following:
Cy Pres Settlements by Theodore H. Frank (AEI)
The Supreme Court Rejects "Scheme Liability" in Securities Class Actions by Larry Obhof (Kirkland & Ellis)
Dukes, et al. v. Wal-Mart Stores, Inc.: Ninth Circuit Affirms Largest Employment Discrimination Class in History by John Beisner, Evelyn Becker & Karl Thompson (all of O'Melveny & Myers)
The Problem of Class Action Tolling in Mass Tort Personal Injury Litigation by Jessica Davidson Miller & Geoffrey Wyatt (both of O'Melveny & Myers)
FACTA Truncation: Applicable to the Digital World? by Shawn J. Organ (Jones Day)
Silberblatt v. Morgan Stanley: Class Action Court Protects Unnamed Class Members by Jack Park (Spec. Asst. for Inspector Gen. for Corp. for Nat'l & Community Service)
"Reverse Bifurcation" Approach to Punitive Damages Trials in West Virgina by Mark A. Behrens & Christopher E. Appel (both of Shook Hardy)
Federal Judicial Center Releases its Latest Report on CAFA
Emery Lee and Tom Willging, of the Federal Judicial Center, have released their latest report on CAFA’s Impact on the Federal Courts. Here’s a link to the report. Here is an excerpt of their most important findings (p. 1-2):
- There has been a dramatic increase in the number of diversity class actions filed as original proceedings in the federal courts in the post-CAFA period. The pre-CAFA average of such filings per month was 11.9; the post-CAFA average was 34.5 per month (see Figures 2 and 3 in Appendix B).
- Diversity class action removals increased in the immediate post-CAFA period over their 2004 levels but have been trending downward since 2005. In the last months of the study period, diversity removals were at levels similar to those in the pre-CAFA period (see Figures 2 and 3 in Appendix B).
- The increase in diversity class action original proceedings was widespread. Diversity class action original proceedings increased overall in the districts in eleven of the twelve circuits, when we compared filings for calendar years 2002 and 2003 with those for the last two years of the study period, July 1, 2005–June 30, 2007 (see Figure 4 in Appendix B). Diversity class action original proceedings also increased between the two time periods in all but one of the districts with substantial numbers of diversity class actions during the study period (see Figures 5 and 6 in Appendix B).
- The results we found for diversity class action removals were more varied. When we compared removals in calendar years 2002 and 2003 with those in the last two years of the study period, we found that they decreased in the last two years of the study period in five circuits (see Figure 4). However, when we analyzed the districts separately, we found that most of the districts with substantial numbers of diversity class actions experienced some increase in diversity removals (see Figures 5 and 6 in Appendix B).
- The increase in diversity class actions is due largely to increases in the numbers of contracts, consumer protection/fraud, and torts-property damage class actions being filed in or removed to federal court in the post-CAFA period. Torts personal injury cases have not increased in the post-CAFA period (see Figure 7 in Appendix B).
Many thanks to Tom and Emery for their continued efforts on this project. It’s been a wonderful resource for mass tort scholars and provides much needed empirical data on class litigation.
April 16, 2008
Taylor v. Sturgell Oral Argument
The Supreme Court heard oral argument today in Taylor v. Sturgell, a fascinating case involving nonparty preclusion. Having read the transcript of the oral argument, I'd be surprised if the Court affirmed, but I would not be surprised if the Court remanded to give the lower courts an opportunity to consider the issue of collusion.
Here's the case in a nutshell: Greg Herrick filed a FOIA request for information about an antique aircraft. When the request was rejected, he filed suit in the District of Wyoming, and lost. Subsequently, Brent Taylor made a FOIA request for the same info. When his request was rejected, he sued in the District of Columbia. The district court and the D.C. Circuit held that Taylor was claim precluded. Noting that Taylor was the director of an antique aircraft association of which Herrick was a member, and that they were represented by the same counsel, the D.C. Circuit held that Taylor was "virtually represented" by Herrick in the first suit.
Taylor argued that, with limited exceptions, a nonparty is not bound by a judgment. The government and manufacturer argued that they should not have to relitigate the FOIA issue, given the close association between Herrick and Taylor. Along with other proceduralists, I co-wrote an amicus brief supporting Taylor's position, emphasizing not only the integrity of the law of judgments, but also the law of joinder and representative litigation. The law offers numerous ways to bind multiple persons to a judgment, but such joinder or representation must be accomplished ex ante and with appropriate procedural protections, not ex post through the backdoor of preclusion.
At today's oral argument, Justice Ginsburg's and Justice Scalia's questions repeatedly emphasized the individual nature of the FOIA right and the fact that Herrick's case was not collective litigation. Justice Scalia brought up the apt comparison to class actions, although he made the error of emphasizing that individuals may withdraw from a class action (a point that should carry little or no weight in this case, because had the FOIA litigation been a class action, it would have been a Rule 23(b)(2) non-opt-out class action). But Justice Ginsburg saved the day by pointing out that under Rule 23 any settlement must be approved by the judge.
When counsel for the government argued that preclusion is necessary in order to avoid vexatious FOIA litigation, Justice Scalia said, "Counsel, you have described for us a thousand-headed monster of litigation, and your proposal for a solution is to cut off one eyebrow. ... It seems to me that, you know, in order to cut off an eyebrow, I'm not willing to make a whole lot of incursion upon our traditional rules of who's bound by a lawsuit."
Mass tort litigation involves numerous plaintiffs with similar interests, often represented by the same counsel or lawyers working closely together. A broad approach to nonparty preclusion could significantly affect the dynamics of such litigation. Respondents' counsel in Taylor, however, made it clear that they were not seeking a broad rewriting of the rules of preclusion. Justice Ginsburg got no serious resistance when she said, "[L]et's say you have a whole busload of people who get injured in the same accident. Plaintiff one sues and loses. Two sues and loses. Three is not precluded. Four is not precluded."
Some of the Justices seemed concerned that there may have been collusion between Herrick and Taylor, at least in the sense that Taylor may have been pursuing the FOIA case on behalf of Herrick after Herrick lost on his first try. The Justices were clearly unwilling to reach a conclusion unsupported by the record (Justice Souter: "In effect, you're asking us to infer a finding of fact, and we're not the trial court."). But they were warmer to the possibility of remand. Justice Ginsburg suggested, "It could be remanded. It could be remanded with instructions that the collusion question is still open." When Chief Justice Roberts asked petitioner's counsel on rebuttal whether the Court should remand for consideration of whether there was an agreement, counsel responded, "Yes. The court could remand it and then the district court would have the discretion to allow the case to go forward as it saw fit." I have to imagine that such a remand would be an appealing option to a number of the Justices, although if so, I hope it comes with a clear statement reaffirming the principle that nonparties are not bound by judgments except in very narrow circumstances.
Fen-Phen Attorneys' Fee Award
It looks as though payday has finally arrived for fen-phen attorneys. After nearly a decade of litigation, Judge Harvey Bartle III awarded plaintiffs’ lawyers from over 70 law firms $412 million for their efforts in litigating the Diet Drugs Product Liability Litigation. According to the National Law Journal, plaintiffs attorneys logged more than 578,000 hours (the equivalent of 24,000 days, or almost 66 years) of work on the litigation. As you may recall, the fen-phen settlement involved back-end opt out rights and a settlement that has endured at least seven amendments. Experts initially estimated 35,500 claims but just the back-end opt-outs exceeded 60,000 fen-phen users. Notable opinions on the settlement can be found at 2000 U.S. Dist. LEXIS 12275; 369 F.3d 293, 303 (3d Cir. 2004); and 226 F.R.D. 498 (E.D. Pa. 2005).
Moves: Erichson and Burch
Two of your mass tort bloggers have accepted offers to join new law faculties next year. Howard Erichson is moving from Seton Hall to Fordham Law School. Beth Burch is moving from Samford (Cumberland) to Florida State University College of Law.
April 15, 2008
Vioxx and Medical Ghostwriters
The New York Times today reported on a JAMA article about medical ghostwriting, raising questions about the integrity of pharmaceutical research studies published in medical journals. Here's how the Times account begins:
The drug maker Merck drafted dozens of research studies for a best-selling drug, then lined up prestigious doctors to put their names on the reports before publication, according to an article to be published Wednesday in a leading medical journal.
The article, based on documents unearthed in lawsuits over the pain drug Vioxx, provides a rare, detailed look in the industry practice of ghostwriting medical research studies that are then published in academic journals.
The article cited one draft of a Vioxx research study that was still in want of a big-name researcher, identifying the lead writer only as “External author?”