Mass Tort Litigation Blog

Merck's New Journal

Concurring Opinions has an interesting post titled "Mercketing," which describes how Merck and Elsevier created their own "journal" in Australia.  Yet, perhaps to make it look, er, less "slanted" the journal is called the Australasian Journal of Bone and Joint Medicine and is "made to look like [a] medical journal[]."  The post and Sergio Sismondo's article "Ghosts in the Machine" is worth a read.

ECB

Plaintiffs' Teflon Class Actions Against Dupont Don't Stick

As Allison Frankel reports at AmLaw Litigation Daily, plaintiffs in the Teflon MDL proceedings have filed a joint motion to drop their consumer-fraud class-action cases.  Dupont understandably has high praise for its outside counsel, Bartlit Beck.  Dupont's General Counsel Thomas Sager noted, "It was like this firm just dropped from heaven."

BGS

WLF's Richard Samp Discusses New D.C. Cir. Decision on Independent Contractors

The Washington Legal Foundation's Richard Samp has an interesting, short paper discussing a recent D.C. Circuit Court of Appeals decision rejecting the right-to-control test to distinguish independent contractors from employees, and instead substituting an extent-of-entrepreneurial-opportunity test.  A company generally is not faced with vicarious liability for independent contractors, but generally has vicarious liability for its employees.

BGS

Skadden Successfully Recruits John Beisner, Stephen Harburg, and Jessica Davidson Miller of O'Melveny

According to this press release from Skadden, John Beisner, Stephen Harburg , and Jessica Davidson Miller will leave O'Melveny and join Skadden's Washington, D.C. office.  John Beisner, chair of O' Melveny's Class Actions, Mass Torts, and Aggregated Litigation Practice, represented Merck in the Vioxx litigation and is a preeminent defense mass tort practitioner.  Most remarkable is the prospect in one firm of both John Beisner and Sheila Birnbaum, founder of Skadden's mass torts department and herself frequently named as the leading defense products liability lawyer.  As someone who worked in New York at Skadden's mass torts department myself while in practice, I would also mention Skadden's depth of talent, including partners Raoul Kennedy, Jeffrey Lichtman, Russell Jackson, Mark Cheffo, and Steven Napolitano.  Quite a group indeed.

BGS

Merck's International Litigation Strategy

An article in the New York Times entitled "Trial Puts Spotlight on Merck" describes Merck's continuing litigation internationally, with a focus on a Vioxx trial currently under way in Australia.  This trial is receiving substantial media coverage in Australia, according to the Times, most of it negative publicity for Merck.  Why continue this litigation strategy even after settling in the US for nearly $5 billion?  The Times reports:

The point of trying the case is to stand behind the company’s conviction that it acted responsibly in developing, marketing, and ultimately withdrawing Vioxx, Bruce N. Kuhlik, Merck’s general counsel, said in an interview this week.

The article notes that plaintiffs lawyers from other countries (Canada in particular) are watching the trial and obtaining information they otherwise lacked.

ADL

An Empirical Assessment of Punitive Damages

Theodore Eisenberg (Cornell), Michael Heise and Martin T. Wells have recently posted "Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court's Decision in Exxon Shipping Co. v. Baker" - available on SSRN.  Here is the abstract:

Exxon Shipping Co. v. Baker acknowledged what virtually all methodologically sound punitive damages research shows. The Supreme Court relied in part on an article by the present authors and others to state that empirical studies undercut the most audible criticism of punitive damages and that no mass of runaway punitive awards existed. Paradoxically, the Court simultaneously expressed concern about jury predictability based on a high mean and standard deviation in the punitive-compensatory ratio published in our article. The Court therefore reduced a $2.5 billion punitive award relating to the Exxon Valdez oil spill to $500 million to implement a 1:1 punitive-compensatory ratio and stated that “the constitutional outer limit may well be 1:1.” This article shows that our empirical findings relied on by the Court do not support the unpredictability concern or widely applying the limiting ratio. The high mean and standard deviation are artifacts of not accounting for the key variable that explains punitive awards - the compensatory award. Stratifying the mean and standard deviation of the punitive-compensatory ratio by the level of the compensatory award shows that the ratio is reasonably stable in high award cases and significantly and explicably more variable in low award cases. Basing doctrine on summary statistics that combine these heterogenous distributions is not statistically supportable. The award reduction in Exxon Shipping may have promoted consistency with other high compensatory award cases but the 1:1 principle the case hints at is not statistically supportable across the broad range of compensatory awards, and could contribute to an inability to tailor punitive awards to the facts and circumstances of particular cases.

ADL