Mass Tort Litigation Blog

The "Hair Club for Men" Theory for Regulating Food Safety

Ian Ayers (Yale law) and Peter Siegelman (UConn Law) have posted a suggestion for regulating food safety: establish that the company CEO uses the product.  In other words, "I'm not only the president, I'm also a client."   See the idea developed more fully here at Freakonomics blog or here on Balkinization. 

Now for some civil procedure free association.  At the oral argument in the Iqbal v. Ashcroft case in the Supreme Court this term, Justice Breyer asked if a plaintiff finds a mouse in a can of cola, can he depose the CEO of a cola company?  If government regulations required the CEO to drink the cola, is the answer yes?  The answer it seems to me should be no, unless there is some demonstrable reason to depose the CEO (that is, deposing him or her will lead to the discovery of admissible evidence).  Just tasting the Cola is not such a reason, although "plausibly" alleging that the CEO had learned of the mice in cola and let the cola be distributed nevertheless or conspired to place mice in cola might be sufficient (at least, until Iqbal comes down). The majority of the members of the Court seemed to think that letting a CEO be deposed is pretty much the end of the world.  (Quite a turnaround from the Court's position that a civil suit against the President can proceed, including depositions.)  I wonder what they would make of forcing CEOs to eat the peanut butter their companies produce.

ADL

Wall Street Journal on Plaintiffs' Lawyers Hired for Contingency Fee by State of Pennsylvania

Editorial in the Wall Street Journal -- The State Lawsuit Racket: A case study in the politician-trial lawyer partnership.  Here's an excerpt:

State Attorneys General regularly hire private plaintiffs lawyers on a contingency-fee basis to prosecute cases. The trial bar returns the favor with campaign donations to state office holders. And despite the inherent conflicts of interest and questionable ethics of the practice, corporate defendants have rarely challenged such arrangements. Which is why a motion pending before the Pennsylvania Supreme Court is so remarkable -- and deserves more public attention.

Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, is a defendant in a lawsuit filed by the state of Pennsylvania over Janssen's antipsychotic drug Risperdal. The state alleges that Janssen has improperly marketed the drug for off-label uses not approved by the Food and Drug Administration. Janssen denies the accusation, but the merits of the case -- which hasn't gone to trial yet -- are not what's at issue in the motion before the court.

Rather, what's at issue is the fact that the civil action against Janssen is being prosecuted on behalf of the state by Bailey, Perrin & Bailey, a Houston law firm. And it turns out that Pennsylvania Governor Ed Rendell's Office of General Counsel was negotiating this potentially lucrative no-bid contingency fee contract with Bailey Perrin at the same time that the firm's founding partner, F. Kenneth Bailey, was making repeated campaign contributions totaling more than $90,000 to the Democratic Governor's 2006 re-election bid.

BGS

Mark Lanier Expanding Plaintiffs' Tort Law Firm

Article by Alison Frankel in AmLaw Litigation Daily -- Texas Torts Firm Says Business Is Booming, Expands Houston Office.  The article has some interesting quotes from Mark Lanier about asbestos litigation.  Here's an excerpt from the article:

In asbestos, Lanier's firm handles only mesothelioma cases, which he said have not slowed even though it's been decades since asbestos has been widely used. We asked whether the complaints by tort reformers that Delaware has become a haven for asbestos litigation were true, and, somewhat to our surprise, Lanier said that indeed, Delaware had become a frequent forum. But not, he hastened to add, because it's particularly friendly to plaintiffs. "It's not a home run forum for us," Lanier said. "It's a one-stop shop. You have jurisdiction over most defendants there."

We couldn't let that comment pass without asking what were still home run jurisdictions for asbestos claimants. There aren't a lot, Lanier said: Baltimore; New York; some parts of California, though that's beginning to change; and West Virginia, if you can get jurisdiction there. Lanier told us he's hoping to revive Texas asbestos litigation and is making a new push to file cases in Boston.

BGS

Wall Street Journal Editorial on Silicosis Fraud Follow-Up

Here's an excerpt from the Journal's editorial, The Silicosis Abdication: A scam that deserves as much scrutiny as Lerach and Scruggs:

It is going on four years since a Texas judge blew the whistle on widespread silicosis fraud, exposing a ring of doctors and lawyers who ginned up phony litigation to reap jackpot payouts. So where's the enforcement follow-up?

That's an especially apt question given news that New York's State Board for Professional Medical Conduct has finally revoked the license of Dr. Ray Harron. He was among the doctors who Texas Judge Janis Graham Jack showed had fraudulently diagnosed thousands of plaintiffs with silicosis, a rare lung disease. These doctors were later called to testify in Congress, where many, including Dr. Harron, took the Fifth Amendment.

Dr. Harron has since lost his medical licenses in California, New Mexico, Texas, Florida, North Carolina and Mississippi. This is progress, though hardly sufficient. Among the questions Congress asked state departments of health during the silicosis hearings were why those bodies hadn't moved to shut down these doctors and their mobile X-ray vans at the time they were committing medical malpractice.

BGS

Sheila Scheuerman on Statutory Damages and Class Actions

Professor Sheila Scheuerman (Charleston; picture, left) has posted on SSRN her article, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, Mo. L. Rev. (forthcoming 2009).  Here's the abstract:

This article analyzes the due process problem that arises when two litigation mechanisms converge: statutory damages and class actions. Individually, the class action device and statutory damages serve a similar function: encouraging litigation by offsetting disincentives to suit where the alleged wrongdoing involves nominal financial harm. When combined, however, they create the potential for unintended bet-the-company liability. Courts have struggled with how to address these statutory damages class actions because the prevailing legal framework is jurisprudentially flawed and ignores the realities of modern class action litigation. This article assesses the current due process jurisprudence in this area, and proposes an analytical framework drawn from the Supreme Court's punitive damages jurisprudence. Indeed, the article shows that the modern due process standard for punitive damages - known as the BMW guideposts - in fact evolved from a test developed in early Supreme Court precedent analyzing the constitutional limits on statutory damages. Thus, the article argues that the BMW guideposts should apply to aggregate statutory damages awards, and furthermore should be considered before, not after, class certification.

BGS