Tuesday, March 31, 2009
As per Scotusblog:
The Court has released the opinion in Philip Morris USA, Inc. v. Williams (07-1216), on tobacco punitive damages. In a per curiam opinion, available here, the writ of certiorari is dismissed as improvidently granted.
Friday, March 27, 2009
Bob Klonoff (Lewis & Clark), Mark Herrmann (Jones Day) and Brad Harrison have posted their article, Making the Class Action Work: The Untapped Potential of the Internet, on SSRN. Here's their abstract:
Over twenty years ago, the Supreme Court recognized that in class action litigation, absent class members "must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel." Although the absent class members' rights to receive notice and an opportunity to opt out are of vital importance, the ability to be heard and participate in the litigation are also important.
Despite the benefits of participation by absent class members, class action case law and commentary have focused more on maximizing efficiency than on protecting an individual class member's ability to participate in the litigation. Indeed, the Supreme Court itself has recognized that, within existing class action practice, absent class members normally do nothing. Instead of fostering true participation by absent class members, courts have accepted alternatives, finding that the rights of absent class members to receive notice and to opt out and the promise of adequate class counsel are sufficient surrogates for actual participation. In the past, these substitute mechanisms for true involvement, although inadequate, may have been understandable because of the logistical difficulties in permitting absent class members to participate in the same manner as litigants in traditional bilateral litigation.
Class action litigation inherently focuses on the claims of large numbers of people. That concept is captured explicitly in Federal Rule of Civil Procedure 23(a), which requires, as a prerequisite to class certification, that "the class is so numerous that joinder of all members is impracticable." And, although "impracticable" does not necessarily require large numbers, the requirement is usually fulfilled because of the large number of individuals involved.
Adjudicating the claims of large numbers of absent class members presents difficulties that do not exist in traditional bilateral litigation. In bilateral litigation, the parties have direct contact with their counsel and can obtain from them necessary information about the case and the litigation process in general. By contrast, class counsel have historically been unable to keep absent class members abreast of the progress of a specific class action case or to involve absent class members in litigation in any meaningful manner. Until recently, these difficulties have precluded meaningful involvement by most absent class members, to the detriment of the entire class action process.
The internet has become entrenched in the American way of life and provides a mechanism through which absent class members' right to participate meaningfully in class action litigation can be realized. Since September 2001, over half of the households in the United States have maintained internet access. Even this enormous number, however, represents only part of the picture, because it fails to account for individuals who have access to the internet at work or through other channels, such as public libraries. Taking into account all means of accessing the internet, as of March 31, 2007, the percentage of Americans over the age of twelve with internet access is between 70% and 78% of the population.
People not only have access to the internet; they use it. The average American internet user accesses the web ten times and visits approximately 24 to 26 different domains per week. Over the course of a week, the average American internet user spends more than ten hours on the internet, and this usage is on the rise. For instance, a 2007 study by the Newspaper Association of America indicates that 62.8 million people per month visited online newspaper websites in the fourth quarter of 2007. Comparing 2006 to 2005, the average unique audience for newspaper websites increased 22%. Increasingly, people are regularly visiting portal websites and websites with extensive search capabilities, such as MSN.com, Yahoo, and Google, to guide their internet browsing. The internet has clearly become a vital "communication, information, entertainment, and transaction tool."
This Article focuses on the capacity of the internet to foster true participation by absent class members. Part I of this Article examines how the internet is currently used in class action litigation. As the Article explains, although the internet has been used in some aspects of class action practice, that use has been limited and sporadic. Part II examines the full potential of the internet to increase absent class members' participation. It offers concrete proposals for integrating the internet into virtually every aspect of the class action process.
Wednesday, March 25, 2009
Granted, the Wal-Mart class action isn't a mass tort, but the Ninth Circuit's previous decision that upheld certification of the largest class action to date bears significantly on class action law in general. In its original opinion, the Ninth Circuit opted for a "lower" Daubert standard, permitting sociologists and statisticians to testify about gender stereotyping and to raise an inference of class-wide gender discrimination through statistical analysis. (I wrote an article on the Daubert issue a few years ago, which is available here.) The court further refused to adopt a bright line standard with regard to monetary damages in (b)(2) class actions, but suggested that where monetary relief is sought that the district court should consider the possibility of opt-out rights (a key question left open by the Supreme Court's opinion in Phillips Petroleum v. Shutts). So, the en banc rehearing on Tuesday has garnered a good bit of media attention. Dan Levine of The Recorder covered the hearing. Here's an excerpt: "But it was Judge Susan Graber, considered a moderate, who wondered whether the court was faced with an all-or-nothing proposition. "What are the range of options we have? It seems like there's lots of ways to slice and dice this," she said. Seligman agreed, saying the court could, for example, carve punitive damages out of the existing class certification -- but allow claims for back pay to remain." ECB
Tuesday, March 24, 2009
More as details unfold... Gelep is one of the post-Engle individual-plaintiff cases.
UPDATE #1- Here's the press release from Altria on today's verdict in Gelep. For context, here's Altria's press release on the prior Hess verdict in Florida that went against Altria. Here are also links to two recent articles by me that discuss Engle and prior Florida tobacco litigation: Jackpot Justice: Verdict Variability and The Mass Tort Class Action, Temple. L. Rev. (forthcoming 2009); Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts, Pepp. L. Rev. (forthcoming 2009).
UPDATE #2 -- I can't resist an online congratulations to Rachael Weinfeld, a former research assistant of mine at Southwestern Law School who joined Shook, Hardy & Bacon after graduation last year and served on the Gelep trial team for Altria. Putting aside for a moment the merits of the lawsuit here -- a professor is always happy to see exceptional students leave the nest and take flight, and Rachael has certainly done so.
Sunday, March 22, 2009
According to this article in today's L.A. Times, pharmaceutical companies are quietly pushing to break up the FDA into separate entitites, in hopes of speedier drug approvals. President Obama yesterday appointed a group to reassess the FDA, so there may be an opportunity for change.
Friday, March 20, 2009
As I previously briefly noted, Albany Law School is hosting on Friday, March 27 a symposium entitled, Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label. I will be speaking about liability from off-label promotion of drugs. Other participants include Dean Thomas Guernsey (Albany Law); Professors Beverly Cohen (Albany Law), Michael Kane (Albany College of Pharmacy & Health Sciences), Alicia Ouellette (Albany Law), Sarah Scarpace (Albany College of Pharmacy & Health Sciences), and Dan Thompson (Alden March Bioethics Institute); Mollie Hertel (U.S. Government Accountability Office); and practitioners Eric Chaffin (Bernstein Liebhard), Arnold Friede (McDermott, Will & Emery), Patrick Igoe (Registered Patent Attorney), and Raul Tabora (Ruffo, Tabora). Here's a link to the brochure.
Superior Court Judge Carol Higbee of New Jersey denied class certification to Vioxx users in Kleinman v. Merck & Co., Inc. Plaintiffs alleged that Merck violated New Jersey's Consumer Fraud Act by deceptive marketing practices. The proposed class definition included users from every state but California, where a similar action is pending. Here's an excerpt of an article about the decision in the New Jersey Law Journal:
But Higbee found the plaintiffs failed to meet the class-action requirement of predominance, because questions affecting individual members outnumbered issues of law or fact common to the class.
To prove a consumer fraud claim, the plaintiffs would have to show that Merck acted unlawfully, that each class member sustained an ascertainable loss and that the unlawful conduct and ascertainable loss had a causal nexus. The first two issues could be put to a jury, but the third is "an insurmountable barrier," Higbee wrote.
A determination of whether Merck's concealment of risks had a causal relationship to each individual's decision to purchase Vioxx would require an "individualized determination" of the factors that led each class member to buy the drug, such as the person's medical history, current condition and use of other pain-relieving drugs.
The plaintiffs also failed to show that the claims of their class representatives are typical of the claims or defenses of the class. Plaintiff Elaine Kleinman's doctor testified that he would continue to prescribe Vioxx if it were still available and said he took it himself, even after it was pulled off the market. Since other plaintiffs' doctors are likely to feel Merck deceived them, the views of Kleinman's doctor go against the typicality requirement, Higbee wrote.
Finally, Higbee found the plaintiffs failed to show that a class action was a superior way of settling the matter. While recognizing that individual consumers may have no other means of resolving their claims, she said the lack of predominance would make the case unmanageable, even if the class were restricted to New Jersey.
Wednesday, March 18, 2009
A new article on managing mass tort multidistrict litigations -- Charles Silver and Geoffrey Miller, The Quasi-Class Action Method of Managing Multidistrict Litigation -- has just been posted on SSRN. If any mass tort lawyers reading this blog have a chance to look at the article, I'd be very interested in your responses to the proposals therein. Is their diagnosis of the problem correct? What do you think of their proposal to solve it? What are the unforseen results this proposal might cause?
Here is the abstract:
article uses three recent multi-district litigations (MDLs) that
produced massive settlements -- Guidant ($240 million), Vioxx ($4.85
billion), and Zyprexa ($700 million) -- to study the emerging
quasi-class action approach to MDL management. The approach has four
components: (1) judicial selection of lead attorneys; (2) judicial
control of lead attorneys' compensation; (3) forced fee transfers from
non-lead lawyers to cover lead attorneys' fees; and (4) judicial
reduction of non-lead lawyers' fees to save claimants money. These
widely used procedures have serious downsides. They make lawyers
financially dependent on judges and, therefore, loyal to judges rather
than clients. They compromise judges' independence by involving them
heavily on the plaintiffs' side and making them responsible for
plaintiffs' success. They allocate monies in ways that likely
over-compensate some attorneys and under-pay others, with predictable
impacts on service levels. They also lack needed grounding in
substantive law because the common fund doctrine, which supports fee
awards in class actions, does not apply in MDLs. Academics have not
previously noted these shortcomings; this is the first scholarly
assessment of the quasi-class action approach.
This article also proposes an alternative method of MDL management. It recommends the creation a plaintiffs' management committee (PMC) composed of the attorney or attorney-group with the most valuable client inventory, as determined objectively by the trial judge. The PMC, which would have a large interest in the success of an MDL, would then select and retain other lawyers to perform common benefit work (CBW) for all claimants and monitor the lawyers' performance. The new approach would thus use micro-incentives to organize the production of CBW in MDLs rather than judicial control and oversight. The court would stand back from the process, exercising only a limited backup authority to prevent abuses. If enacted as a statute, the proposal would restore judges' independence, preserve lawyers' loyalties, provide the requisite legal foundation for fee awards, and encourage the fairer, more efficient, and more appropriate representation of claimants in MDLs.
Tuesday, March 17, 2009
Article in the Wall Street Journal -- Hamburg, Pick for FDA, Faces an Agency in Crisis, by Alicia Mundy. Here's an excerpt:
If confirmed by the Senate, Margaret "Peggy" Hamburg will take the helm of an agency under investigation on multiple fronts on Capitol Hill. It has struggled to address problems involving imported drugs such as heparin from China. There have been high-profile outbreaks of illness from peanut butter and tomatoes. And a seemingly endless line of FDA scientists have complained to Congress about agency decisions.
Sunday, March 15, 2009
Saturday, March 14, 2009
I've just posted a draft of my article, "Litigating Groups," on SSRN. It is the beginning of a new approach to nonclass aggregation, one that is based principally on group cooperation and social norms. Although it's principally a theoretical piece, its goal is to reallocate the litigating power to the claimants rather than the attorneys. Accordingly, unlike most scholarship on the topic, it does not concede that the plaintiffs' attorney rightly acts as the fulcrum in aggregate litigation such as Vioxx. Instead, it proposes that increased group cohesion can both restore the tether between attorneys and their clients and reallocate control to claimants. The article's core contention is that groups of plaintiffs may have (or could be made to have) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and preventing them from holding out when doing so might harm the group as a whole.
Here's the abstract:
Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and deterrence.
Unlike traditional scholarship that emphasizes individual autonomy or welfare maximization, this Article borrows from the literature of moral and political philosophy as well as social psychology to analyze group dynamics within nonclass aggregation. It requires us to view plaintiffs within large-scale litigation as a community of sorts and to recognize that sometimes litigants incur obligations simply by virtue of being a group member, whether chosen or not and whether welfare maximizing or not. Moreover, empirical studies demonstrate that once people consider themselves part of a group, they exhibit other-regarding preferences-trust, reciprocity, and altruism-toward other members. Cohesive group members are more likely to cooperate with one another and care about the collective outcome, and less likely to exit the group when doing so benefits the individual rather than the group. In the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and restore the tether between clients and their attorney. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.
I would, of course, welcome comments ([email protected]). Because of the law review word limit constraints, this piece only touches on implementation methods that will be fleshed out more fully in the next article.
I also thank the members of the Merck Settlement Group for their willingness to share their insights on both their group and the Vioxx settlement with me.
Despite reports circulating as early as 2004 about problems with the Sprint Fidelis cable, Medtronic's medical device is still in widespread use. Barry Meier of the New York Times reports that along with roughly 13 fatalities, the FDA has received reports of 2,200 reports of serious injuries. Here's an excerpt of the article:
Separately, a previously undisclosed Food and Drug Administration report indicates that Medtronic began receiving reports soon after the device reached the market in late 2004 that the cable, known as the Sprint Fidelis, was fracturing. The company also revised its manufacturing process in the months before withdrawing the Sprint Fidelis from the market, according to the F.D.A. report, which was provided to The New York Times by lawyers suing Medtronic.
A top Medtronic official said in an interview on Friday that the manufacturing change in question was unrelated to the reasons for the recall and that even at the time of the recall internal data did not suggest it was fracturing at a significantly higher rate than other company leads.
When Medtronic may have known the Sprint Fidelis posed safety problems, and how it responded to that information, could be significant factors if patient lawsuits over the product were to start moving forward again. This month, top Democratic lawmakers introduced legislation that would effectively nullify a Supreme Court decision last year that has blocked lawsuits against medical device makers like Medtronic. The company recently said that about 2,000 legal claims involving the Sprint Fidelis had been filed against it.
The death statistics Medtronic released Friday underscore both the scope of the Sprint Fidelis problem and the difficult choices that doctors and patients face in deciding what to do about it. About 150,000 people in this country still have the Sprint Fidelis leads in their bodies.
Thursday, March 12, 2009
Professor Richard Nagareda (Vanderbilt) has published The Law of Class Actions and Other Aggregate Litigation (Foundation Press 2009). Here's the book description from Foundation Press:
Nagareda’s new casebook is the first to situate as a cohesive whole the ways in which U.S. law seeks to resolve related civil claims on an aggregate basis, integrating the study of class actions with emerging devices such as aggregate settlements, arbitration, and reorganizations in bankruptcy.
This book fills three gaps in the market for teaching materials on the U.S. civil justice system. First, the casebook establishes “aggregate litigation” as a cohesive field of procedural law, one that encompasses not only class actions but also related devices such as aggregate settlements, reorganizations in bankruptcy, private arbitration, and aspects of litigation by the government. Second, the casebook confronts forthrightly the reality of our civil justice system as one geared toward settlement, not the rare event of trial. From this vantage point, the casebook sees the processes for aggregate litigation as vehicles through which the law seeks to achieve proper preclusion – that is, comprehensive, or broadly encompassing, resolution of related civil claims. The hard questions surrounding aggregate litigation concern how the law may legitimize this binding effect. Third, the casebook frames the binding effect sought for settlements in aggregate litigation as drawing upon aspects of both private contracts and public legislation. In so doing, the framework of the casebook encourages students to see cross-cutting connections to their other courses on such topics as contracts, corporations, and administrative law.
Wednesday, March 11, 2009
DePaul University College of Law is hosting the 15th Annual Clifford Symposium on Tort Law and Social Policy. This year's topic is Rising Stars: A New Generation of Scholars Looks at Civil Justice. The symposium will take place on Thursday, April 2, 2009 and Friday April 3, 2009. Speakers include: Professors Shari Diamond (Northwestern), Eric Feldman (Penn), Marc Galanter (Stanford), Myriam Giles (Cardozo), Michele Goodwin (Minnesota), Daniel Ho (Stanford), Stephan Landsman (DePaul), Richard Lempert (Michigan), David Marcus (Arizona), Daniel Markovits (Yale), Robert Rabin (Stanford), Jennifer Robbennolt (Illinois), Margo Schlanger (Washinton Univ.), Anthony Sebok (Cardozo), Neil Siegel (Duke), Jed Shugerman (Harvard), Benjamin Spencer (Washington & Lee), Catherine Struve (Penn), Suja Thomas (Illinois), Katerina Wyman (NYU), Albert Yoon (Toronto), and Kathryn Zeiler (Georgetown).
The Federalist Society is hosting a panel on the new book, Regulation by Litigation (Yale Univ. Press 2008), co-authored by Professor Andrew Morriss (Illinois), Professor Bruce Yandle (Clemson, Economics Dep't), and Andrew Dorchak (Case Western, Law Library). The event will be held on Tuesday, March 17, 2009 at the Mayflower Hotel in Washington, D.C. Panel members will include the book's authors, as well as Professor David Vladeck (Georgetown) and Roger Martella (Sidley Austin), and the moderator will be Jonathan Adler (Case Western). Here's the description of the book:
Federal and state regulatory agencies are increasingly making use of litigation as a means of regulation. In this book, three experts in regulatory law and theory offer a systematic analysis of the use of litigation to impose substantive regulatory measures, including a public choice-based analysis of why agencies choose to litigate in some circumstances.
The book examines three major cases in which litigation was used to achieve regulatory ends: the EPA’s suit against heavy duty diesel engine manufacturers; asbestos and silica dust litigation by private attorneys; and private and state lawsuits against cigarette manufacturers. The authors argue that litigation is an inappropriate means for establishing substantive regulatory provisions, and they conclude by suggesting a variety of reforms to help curb today’s growing reliance on such practice.
Monday, March 9, 2009
Dean Robert Klonoff (Lewis & Clark), Mark Herrmann (Jones Day), and Bradley Harrison (Jones Day) have published Making Class Actions Work: The Untapped Potential of the Internet, 69 U. Pitt. L. Rev. 727 (2008).
Sunday, March 8, 2009
The Economist has an article, Model Behaviour, about the use of increasingly sophisticated computer technology to model the interaction of large numbers of individuals. While the technology has been used for graphics in movies like Lord of the Rings, it's also being used to predict complex behaviors such as the way people react in public when someone collapses; other uses include the movements of people during a fire and ships in a crowded harbor.
Can't help wondering whether such computer modeling might someday help mass tort attorneys predict the litigation movements of masses of plaintiffs: how many will sign up for representation? based on what stimuli? how many will want to press to trial rather than settle? how will thousands of claimants react to a proposed group or class settlement? how many will see class notice? how many will opt out of class actions altogether? Seems like a model could be created based on a database of past interactions of mass tort plaintiffs in similar situations. And I'm sure defense counsel would enjoy thinking of themselves as fighting against the hordes of plaintiff orcs coming over the mountains.
Friday, March 6, 2009
After the Supreme Court rejected Wyeth's preemption claim in Wyeth v. Levine, Congress took steps to reverse the Supreme Court's earlier preemption decision, Riegel v. Medtronic, Inc. House representatives Frank Pallone, Jr. (D-NJ) and Henry Waxman (D-CA) introduced the Medical Device Safety Act of 2009 to "protect patients from dangerous and defective devises by correcting the Court's flawed interpretation of the MDA." In effect, the Act restores state product liability lawsuits and restores the private attorney general's role in bringing suit. NYU recently held a symposium on the broader idea of Tort Law in the Shadow of Preemption. The symposia should be forthcoming in the NYU Annual Survey of American Law.
Wednesday, March 4, 2009
Apparently no legal system can escape the mass tort juggernaut -- for good or ill. The Highest Court in China has recently given the green light to suits arising out of the distribution of tainted milk. See the article on the Associated Press here. One interesting aspect is the numbers of families who have refused government compensatio because it is too small, electing instead to sue.