December 6, 2008
FJC Interim Report on CAFA Effect
The Federal Judicial Center has released Impact of the Class Action Fairness Act on the Federal Courts: Preliminary Findings from Phase Two's Pre-CAFA Sample of Diversity Class Actions. Download cafa1108.pdf (H/t to Civil Procedure Prof Blog.)
Exxon Makes First Payments to Valdez Spill Plaintiffs
Article in the L.A. Times -- Exxon Valdez victims receive first payments, by Kim Murphy. (H/t to Torts Prof Blog.) Here's an excerpt:
Reporting from Cordova, Alaska -- A little less than 20 years ago, Mike Webber was king of his own watery world. He was 28 years old, with three herring fishing boats. He leased another long-line boat for halibut, and gill-netted the fat salmon that made Prince William Sound one of the most legendary fisheries in the world.
Then came the 1989 Exxon Valdez oil spill. Overnight, it was all gone: Fish prices plummeted. People started selling their fishing permits to pay their mortgages, and then lost their houses anyway. Salmon rebounded, but the $12-million-a-year herring fishery all but disappeared.
On Friday, Webber and more than 200 other residents of this rain-soaked fishing town began getting the first round of punitive damage payments from ExxonMobil, closing the book on one of the nation's most epic battles over environmental destruction and corporate responsibility.
Effect of Expected or Pending FDA Preemption Legislation on Litigation
Beck/Herrmann at Drug and Device Law briefly reject the litigation relevance of legislation until it's passed.
December 5, 2008
Varying Congressional Views on New FDA Head
A top House Democrat is asking President-elect Barack Obama to avoid naming any current officials of Food and Drug Administration to lead the agency, even temporarily, reflecting a divergence of views on Capitol Hill on how to fix the FDA's problems.
Congressional aides said Democratic officials have discussed naming Janet Woodcock, a longtime FDA official, as interim head after the expected departure of the current commissioner, Andrew von Eschenbach, a George W. Bush appointee. People close to the pharmaceutical industry also have been floating Dr. Woodcock's name as either interim or permanent FDA chief.
But Rep. Bart Stupak, a Michigan Democrat who holds a key post on the House committee that oversees the FDA, is seeking to forestall that choice. In a letter Wednesday to Mr. Obama, Rep. Stupak wrote, "I would encourage you not to appoint any current senior FDA employee as Commissioner or Interim Commissioner of the FDA."
December 4, 2008
Beck/Herrmann & Beisner on New ALI Draft Principles of Aggregate Litigation
Beck/Hermann of Drug and Device Law summarize a letter from John Beisner (O'Melveny) commenting on the new ALI Draft Principles of Aggregate Litigation. Beisner's objections to class actions are all well made. I would add that pinning the claims of an entire class and the fate of an entire industry on a single class-action jury verdict is bad policy, in light of the evidence of verdict variability -- as I argue in a forthcoming Temple Law Review article. Rather, I would favor the collective wisdom of multiple individual-plaintiff juries as a more reliable method to price claims for far-reaching settlements that also achieve the efficiency sought by class actions.
Marie Gryphon on Loser Pays
Marie Gryphon, Senior Fellow of the Manhattan Institute, has published a report entitled, Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System. (H/t to Point of Law.)
Williams Tobacco Case Back at U.S. Supreme Court
Article on Bloomberg.com -- Altria Punitive-Damages Case Divides U.S. High Court, by Greg Stohr. Here's an excerpt:
A divided U.S. Supreme Court wrestled with a $79.5 million award against Altria Group Inc.’s Philip Morris USA unit in an Oregon smoker lawsuit and discussed the possibility of broadening the scope of the case.
In a case now before the justices for the third time, Philip Morris is seeking a new trial and a reprieve from what would be a record payment in a smoker suit. The cigarette maker says the Oregon Supreme Court improperly circumvented a 5-4 ruling the company won at the U.S. Supreme Court last year. The Oregon court then reaffirmed the award, saying the company violated a state procedural requirement.
Comments during today’s argument suggested that several justices may switch sides, putting the outcome in doubt. Antonin Scalia, who dissented in 2007, today said the Oregon court had disobeyed the high court’s instructions. At the same time, Stephen Breyer and David Souter, who previously sided with Philip Morris, hinted they might vote against the company this time.
W.R. Grace's Asbestos Settlement
The Associated Press reports that W.R. Grace has agreed to pay up to $140 million to settle the Zonolite attic insulation asbestos cases. The article is available here.
December 1, 2008
Reports and lawsuits are beginning to accrue regarding Merck's vaccine for cervical cancer, Gardasil. Merck has been lobbying states to mandate the vaccine for middle-school aged girls. Several academics have argued against making the vaccine mandatory in a recent issue of the Journal of Law, Medicine & Ethics. Plus, a new study released in mid-November suggests that Gardasil may also help prevent genital warts in males. Despite the push for making the vaccine mandatory, reports of serious side effects and potential litigation have begun to surface. For instance, here's an excerpt of CBS News's report:
Yesterday I spoke to the families of young women who believe the Gardasil HPV vaccine may have – or did in fact – cause their child's serious illness. One of the cases involves a now 18-year old young woman named Amanda.
Amanda's parents say she developed a serious reaction to Gardasil after her first dose last summer. It began with soreness where she received the injection. The soreness eventually travelled down her arm, her legs, and led to a horrible autoimmune myofasciitis that is so painful Amanda had to go on morphine for the pain.
She was transformed, through the illness, from a high school varsity sport athlete to a chronically ill person who takes a handful of pills a day just to keep her illness tolerable. When she goes off the medicine, the excruciating pain and other debilitating symptoms return.
The FDA's press release regarding its Gardasil approval can be found here.
November 30, 2008
Collective Redress in Europe
The Commission of the European Communities has just released its latest Green Paper on Consumer Collective Redress. It cites several current problems for consumers in Europe, one of which is a weak enforcement framework:
15. As a consequence of the weaknesses of the current redress and enforcement framework in the EU, a significant proportion of consumers who have suffered damage do not obtain redress. In mass claim cases that affect a very large number of consumers, although sometimes the harm may be low for the individual consumer, it can be high for the size of the market. As these markets become more cross-border in nature, effective cross-border access to the mechanisms of redress become necessary. Today, close to 10% of collective redress claims have a cross-border element. For example, a UK company recently distributed scratch cards in Irish newspapers offering "free" holidays, whereas in reality this offer cost each consumer a minimum of EUR 130. With further integration of the markets this percentage is likely to rise.
The Green Paper surveys the existing instruments for collective redress, such as its existing recommendations to facilitate ADR and the Consumer Protection Cooperation Regulation. After finding these inadequate, the Commission proposes several options and invites comment. Briefly, the options include 1) no European Communities action, that is, keep the status quo; 2) cooperation between member states to, for example, create a collective redress network; 3) mix of policy instruments such as improving ADR mechanisms, extending small claims procedures to mass claims, expanding the Consumer Protection Cooperation Regulation's scope, encouraging improvement of businesses handling complaints, and raising consumer awareness; and 4) judicial collective redress procedure, which would create a measure that ensures adequate redress for mass cases through representative actions, group actions, or test cases (it has left open the question of whether the procedure should be opt-in or opt-out).
Here is the call for action and contact information:
With this Green Paper the European Commission calls on the interested persons to express their views by sending in their replies (marked “Response to the Green Paper on Consumer Collective Redress”) no later than 1st March 2009 to:
Directorate-General Health and Consumers
Rue de la Loi 200
Or by e-mail to Sancofirstname.lastname@example.org Contributions will be published on the website of the Health and Consumers Directorate-General of the European Commission. It is possible to request that submissions remain confidential. In this case, contributors should expressly state on the first page of their submission that they oppose publication. The Commission will examine the contributions and publish a summary thereof in the first half of 2009. On the basis of the outcome of the consultation, the Commission will present another policy paper in 2009.