April 26, 2008
Sebok's Book Review of Nagareda's Mass Torts in a World of Settlement
Professor Anthony Sebok (Brooklyn, pictured left) has published his book review, What Do We Talk About When We Talk About Mass Torts?, 106 Mich. L. Rev. 1213 (2008) Download sebok.pdf , which reviews Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement (2007).
Congress, FDA & Foreign Inspections
Article in the Wall Street Journal -- Congress, FDA Debate Foreign Inspections, by Alicia Mundy. Here's an excerpt:
Democrats in Congress and the Food and Drug Administration are in a standoff over giving the agency $70 million to bolster foreign drug inspections, which have come under fire amid deaths linked to tainted blood-thinning drugs from China.
Members of Congress have blasted the FDA for lapses in inspections of Chinese drug factories since contaminated heparin from China has been linked to as many as 81 deaths.
"Quite frankly, I am establishing that you don't have the resources and you can't do your job," House Energy and Commerce Committee Chairman John Dingell, (D., Mich) told FDA Commissioner Andrew von Eschenbach at a contentious hearing Tuesday. He called FDA oversight of imported drugs "indefensible."
But Congress appears unlikely to give new money this year to boost overseas inspections, said several lawmakers and staffers, unless the FDA asks for it.
April 23, 2008
DePaul Symposium Issue on Challenges to the Attorney-Client Relationship
The DePaul Law Review has published its issue based on its symposium, Challenges to the Attorney-Client Relationship: Threats to Sound Advice? Among the interesting articles are the following:
Nancy J. Moore, The American Law Institute's Draft Proposal to Bypass the Aggregate Settlement Rule: Do Mass Tort Clients Need (or Want) Group Decisionmaking?, 57 DePaul L. Rev. 395 (2008) (ssrn link).
Frank M. McClellan, The Vioxx Litigation: A Critical Look at Trial Tactics, the Tort System, and the Roles of Lawyers in Mass Tort Litigation, 57 DePaul L. Rev. 509 (2008).
Accutane Verdict of $10.6 Million
A New Jersey jury hit Roche with a $10.6 million verdict in favor of a Utah woman who claimed that the acne medication Accutane caused her inflammatory bowel disease. The jury, finding that Roche provided inadequate labeling, awarded plaintiff Kamie Kendall $78,500 for past medical expenses plus $10.5 million in unspecified compensation. Here's a brief story in the Star-Ledger. Pharmalot notes that this verdict is Roche's third Accutane trial loss (another in New Jersey last June, and one in Florida last fall), and that the company faces about 400 Accutane suits.
Moss on Electronic Discovery: Separating the Wheat from the Chaff
Scott Moss (Colorado) has just posted an economic analysis on electronic discovery on SSRN entitled: "Litigation Discovery Cannot be Optimal but Could be Better: The Economics of Improving Discovery Timing in the Digital Age." (Duke Law Review, forthcoming 2008). Here is the abstract:
Cases are won and lost in discovery, yet discovery draws too little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes - which, unlike trials, occur in most cases. The growth of e-discovery - imprudent emails or lingering deleted files - makes cost issues increasingly salient, but the e-discovery rules just reiterate existing cost/benefit proportionality limits. Proportionality limits are topic of broad consensus among civil procedure scholars and economists, but this Article deems them impossible to apply effectively. Proportionality limits fail to curb discovery excess while also disallowing discovery meritorious cases need, resulting in bad cases dominating good ones. This Article acknowledges proportionality's flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons: how can courts compare discovery value and cost before parties gather the evidence? Like other arguments that procedural rulings are never truly separate from case merits, this Article notes how discovery has more probative value in the closest cases - yet case merits remain uncertain in discovery, when courts cannot yet examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts act as if all cases warrant similar discovery. In this pooling equilibrium, ruling the same on all cases in the pool, regardless of merit, is courts' best strategy but a sub-optimal one, yielding too much discovery in low-merit cases, too little in higher-merit ones. Thus, the quest for better discovery has disappointed not because of bad rules or decisions, but because courts and parties are stuck in a pooling equilibrium with information-timing circularity: optimal evidence-gathering requires merits analysis, which requires evidence-gathering.
One answer is to defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning pooling equilibria into separating equilibria. Summary judgment can be this separation: cases going to trial, post-summary judgment, likely have 50/50 odds - better than most. Costly evidence has more value in 50/50 cases, where juries struggle to reach verdicts, than in weaker or stronger cases. Noone yet has proposed post-summary judgment discovery to redress the costly discovery dilemma (summary judgment typically follows discovery), but high-cost evidence can be an exception: cases surviving summary judgment are close calls warranting more fact-gathering, so some costly discovery regularly denied now should be allowed after summary judgment. Thus, the existing debate is too focused on discovery quantity; it should focus more on discovery timing. Existing rules give courts discretion to use this proposal, but a new rule could minimize the risk of misusing the proposal to deny more discovery. This Article concludes by briefly noting how economic analyses must consider the details and information timing of the litigation process.
Electronic discovery is often critical in mass tort cases and judges have come up with some creative solutions such as sampling. I'm not sure I buy the idea that judges can separate the wheat from the chaff before plaintiffs have developed their case, which requires discovery. Nevertheless, Moss's insights are worth thinking about.
April 22, 2008
Concerns about bisphenol-a, or BPA,a chemical used to make hard plastics (such as reusable water bottles, some baby bottles, food containers, liners for canned foods) are growing. Chemicals from these plastics, especially when heated, leach into food and human bodies. The effect and toxicity of these chemicals are unclear, but the concern is enough that some retailers are demanding products made without them. According to the New York Times, Wal-Mart has said that it will withdraw baby products made with BPA. The current data is based on animal studies: "Rat pups exposed to BPA, through injection or food, showed changes in mammary and prostate tissue, suggesting a potential cancer risk. In some tests of female mice, exposure appeared to accelerate puberty." The article reports that "Canada has begun a study to monitor BPA exposure among about 5,000 people to assess any danger to adults."
Another mass tort in the offing? A justification for adopting the precautionary principle perhaps? Some scholars have argued in favor of expanding standing doctrine to include "precautionary standing." See Jonathan Remy Nash, Standing and the Precautionary Principle, 108 Columbia L. Rev. (2008) also available on SSRN. Others have argued that the precautionary principle is paralyzing. See Cass Sunstein and Robert W. Hahn, The Precautionary Principle as a Basis for Decision-Making, The Economists Voice (2005) also available on SSRN. For an analysis by a brilliant academic see Douglas Kysar, It Might Have Been: Risk, Precaution and Opportunity Costs, 22 Journal of Land Use & Environmental Law 1 (2006) available on SSRN.
The Chief on Law & Policy
Chief Justice John Roberts served as a moot court judge at Columbia last week. One of the issues in the case was whether an issue class action could be certified.
The Chief Justice's questions to the students (as reported by Adam Liptak of the New York Times) may have given us some insights into his view of class actions:
“A class action is a dramatic departure from the normal rules of litigation,” he said. He asked one student whether the practical impact of allowing a class action was not merely to grant the plaintiff leverage in settlement talks.
Discussing a federal law that requires states to run medical programs “consistent with efficiency, economy and quality of care,” Chief Justice Roberts sounded exasperated.
“How in the world is a judge supposed to apply those terms — economy, efficiency?” he asked. “Those sound like legislative judgments.”
I wonder if this means that he espouses the "blackmail" theory of class actions. (For an excellent refutation of that theory, see Charles Silver, "We're Scared to Death:" Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357 (2003) - you can also find a version of the same paper here on SSRN).
WSJ on Tobacco Regulation by FDA
Editorial in the Wall Street Journal -- Cynicism and Big Tobacco. Here's an excerpt:
Congress wants to give regulators more authority over the tobacco industry – so what else is new? The surprise is that currently there are no plans to give it to the Environmental Protection Agency. Surely cigarette smoke qualifies as a dangerous pollutant.
Not that Congress needs any ideas, but handing off tobacco to the EPA makes about as much sense as its nearly completed pass to the Food and Drug Administration. A bill expected to be voted on soon would impose new restrictions on marketing, raise cigarette taxes, and police the ingredients in tobacco products, including nicotine levels. Any reckless FDA policy is bound to be popular, and sure enough, the bill has 220 co-sponsors in the House and 54 in the Senate, including all three Presidential contenders.
This is all phenomenally cynical, even for Congress. Since the 1964 Surgeon General's report, the health consequences of this hazardous if legal product have been ubiquitous, which no doubt accounts for the 58% plunge in smoking among U.S. adults. The FDA tobacco gambit is explainable only because the politicians have dumped public health for public revenue.
April 21, 2008
Richard Nagareda on Taylor v. Sturgell
Richard Nagareda (Vanderbilt) has recorded a SCOTUScast on Taylor v. Sturgell, the nonparty preclusion case argued before the United States Supreme Court last week. Howard Erichson commented on the case last week in a post on this blog.