Mass Tort Litigation Blog

Plaintiffs' Attorneys Feuding Over Fees

Judge Faith Hochberg of the District of New Jersey urged plaintiffs' lawyers to cooperate and coordinate discovery rather than devolve into a feeding frenzy for attorneys' fees.  The case isn't a mass tort; rather, it is a putative health insurance class action involving Aetna, Cigna, Oxford, WellPoint and Horizon Blue Cross of New Jersey for underpaid out-of-network claims.  Still, it demonstrates that judges continue to exercise significant oversight over multi-district litigation even before certification.  To the extent that issue reaches attorneys' fees, Charlie Silver and Geoffrey Miller have an interesting paper on the court's authority to control the fee issue absent certification.  It is titled, "The Quasi-Class Action Method of Managing Multidistrict Litigations: Problems and a Proposal."

As for the putative health insurance class action, here's a brief excerpt from the New Jersey Law Journal:

"I wasn't born yesterday," the judge said at an April 7 status conference in Newark attended by almost two dozen plaintiffs lawyers. "I understand everybody's interest in this room, and I'm not going to tolerate this becoming an attorney feeding frenzy for fees. My overriding principle will be to get this settled reasonably early, fairly, with the vast bulk of the proceeds going to the policyholders, not the attorneys."

ECB

Justice Souter Retiring

Justice David Souter plans to retire from the Supreme Court when the term ends in June, according to new accounts.  In the field of mass torts, Justice Souter authored the majority opinion in Ortiz v. Fibreboard Corp., the 1999 decision rejecting a Rule 23(b)(1)(B) limited fund settlement class action in asbestos litigation.  After Ortiz, non-opt-out settlement class actions -- which in the 1990s had some appeal as a potential mechanism for resolving future claims in high liability mass torts -- are both difficult and unappealing to use as a mass tort settlement mechanism.  For the tenth anniversary of Ortiz, the University of Kansas is planning a symposium in October, organized by mass torts prof Laura Hines.

HME

The Law of the Banana

Los Angeles Superior Court Judge Victoria Chaney dismissed two tort cases against Dow Chemical and Dole as fraudulent.  The suits alleged that chemicals manufactured by the defendants and used on banana plantations caused sterility.  Law.com reports of the lawyers' misconduct (see the full article here) - the Edelman referenced below is the defendants' attorney:

They offered a $20,000 bounty in Nicaragua for information about witnesses, Edelman said, and saw to it that Dole investigators were subject to intimidation by police and other officials. The court testimony that led to Chaney's ruling detailed how a group of Nicaraguan lawyers, in apparent collusion with local officials, judges and lab technicians, rounded up 10,000 men whom they coached to claim sterility -- and to blame that sterility on Dole's chemicals. In fact, many of the men had never worked for Dole, and many weren't sterile. Some even had multiple children. "There [are] massive amounts of evidence demonstrating the recruiting and training of fraudulent plaintiffs to bring cases in both the Nicaraguan and U.S. courts," Chaney wrote.

The transcript of the hearing in which the judg excoriated the plaintiffs' lawyers can be found at this link.  She will hold a contempt hearing and potentially refer the lawyers to the bar disciplinary committee.

(H/T Legal Ethics Forum - Roy Simon gives this the cute title "Banana Lawyer Slips, Tort Cases Fall")

ADL