Mass Tort Litigation Blog

The Drug and Device Guys on Prefiling Discovery

Here's what they write, with a link too...

We're not opposed to precomplaint discovery in principle. It exists, for example, in Pennsylvania, which is a fact pleading state. If there's something specific that's critical, precomplaint discovery works OK. But we've also received precomplaint requests that look like somebody just changed a couple of words in the title and filed their usual discovery. We consider that abusive.

We're certainly not going to agree to a fishing expedition for unspecified "FDA violations" either before or after a complaint is filed - but if there's something specific, say an FDA 483 letter, precomplaint discovery to determine whether the particular drug/device that plaintiff used was within the scope of the FDA's complaint would be something we'd be open to considering (sorry, we can't be more definitive in a public forum).

Almost all drug product liability cases, and the majority of device cases, are failure to warn cases. The warning is public information, the alleged risk is public information, and the injury should be known to the plaintiff. Nothing more is needed to plead plausible facts that would support a claim under Twombly, and I don't think you'll find any Twombly cases stating otherwise. It's the multi-defendant and violation claims that draw these objections. As we said, that's where we see old fashioned post-complaint discovery and amendment to complaints as appropriate.

ADL

Transnational Mass Torts: Lawyer Opposes Nigerian Settlement with Pfizer

The AP story is here.  The American Constitution Society reports the following on the case:

West Haven lawyer Richard Altschuler has gone to federal court to block a $75 million Nigerian court settlement between Pfizer and the Nigerian government involving a controversial drug study the pharmaceutical company conducted on Nigerian children during a 1996 meningitis outbreak. During the course of the study, 11 children died and others were paralyzed and blinded. Altschuler, who represents 58 alleged victims in a multi-billion dollar case in U.S. court, argues that the settlement proposed in Nigerian court interferes with his case and would give millions to the Nigerian government while providing relatively little for the victims.  

ADL

Brunet on the Origins of Plausibility as a Pleadings Standard

A lot of people have been writing about the new pleading standards lately.  One very intriguing observation was offered by Prof. Edward Brunet (Lewis & Clark Law School).  Brunet is the author of a treatise on summary judgment and links summary judgment and the new pleadings standards.  The concept of "plausibility," he writes, is imported from substantive law of antitrust, now morphed into pleadings doctrine.  His full analysis is below.  

            I think the origin of a plausible assessment of the nonmovant's case was based in substantive antitrust law. In Matsushita(1986 trilogy) the p word is used 10 times.  However, the context of usage of the word is substantive antitrust law and not Rule 12(remember this was a summary judgment case).  What Matsushita meant is that antitrust is hostile to predation cases, particularly those in which  the plaintiff cannot demonstrate proof  of  recoupment  of  the defendant's costs expended in phase one of a predation case ( the price cutting phase).  The plaintiffs' case was implausible because it was incredible that a monopolist would lose money on its U.S. sales for a lengthy 25 year phase one.

The Matsushita majority also made a substantive point when asserting that "antitrust law limits the range of permissible inferences from ambiguous evidence in a section one case.”  In other words, the term plausible was not intended to be a procedural yardstick in all cases but, instead, had a substantive antitrust meaning.  This reading  was bolstered by Matsushita's citation and quotation from Monsanto (1984) (another antitrust case and one not involving pleading) requiring the antitrust plaintiff who seeks to avoid summary judgment to have proof that "tends to exclude the possibility" of independent conduct.

As early as 1969 in the Cities Service case, the Supreme Court used the p word (plausible) when describing a plaintiff's antitrust theory and its ability to overcome a Rule 56 motion.  So, up to the plate goes Justice Souter who reinterprets "plausible" in a procedural way in Twombly. And Justice Kennedy ignores the substantive antitrust meaning of "plausible" in Iqbal.  My theory is based upon a willingness to have cause of action specific norms and flies in the face of a purely trans-substantive set of motion rules. 

ADL

Products Liability and the New Pleading Era

The folks over at Drug and Device Law Blog have a post about plausibility pleading as applied to products liability cases.  Here is the link.

ADL

Continuing Debate over "Opt-Out" Collective Redress in England and Wales

The United States isn't the only country experiencing civil reforms (i.e., Iqbal and Twombly).  England and Wales are reevaluating their rules of civil procedure and the debate over class actions or "collective redress" has been brewing for some time.  On May 8, 2009, Lord Justice Jackson released his preliminary report, which reviews civil litigation costs.  The report follows two reports issued by the Civil Justice Council that recommended adopting an opt-out system of collective redress, introducing American style contingency fees, and doing away with the loser-pays English system.  Lord Justice Jackson's preliminary report similarly suggests that abolishing the cost-shifting loser-pays system "merits serious consideration."  Moreover, he raises the idea of one-way cost shifting to collective actions where claimants would be awarded their costs upon winning, but wouldn't bear the risk of taking on the defendant's attorneys' fees and costs if they lost.

As for collective redress, Jackson broaches the subject but ultimately refrains from recommending either the current opt-in procedure or a more encompassing opt-out procedure.  He does, however, note that the current opt-in model discourages these type of enforcement actions.  He invites written comments on the report and requests that they be sent by July 31.  The submission information can be found here.  Lovells LLP has written a brief and helpful overview of the report, which is available here.

ECB