September 11, 2009
On Teaching 9/11 in a Torts Class
Judge John Keenan declared a mistrial today in Boles v. Merck, the first bellwether trial in the Fosamax litigation. As we mentioned yesterday and the day before, tensions have run high in the jury room. Here's an excerpt from the Wall Street Journal's report:
A judge declared a mistrial Friday in a closely watched case involving Merck & Co.'s osteoporosis drug Fosamax after a jury failed to reach a verdict amid tense jury deliberations. The mistrial came two days after U.S. District Judge John F. Keenan in Manhattan called for a daylong "cooling off" period as one juror claimed in a note to have been the subject of physical threats and that a chair was thrown in the jury room. The judge declared a mistrial Friday after the jury's forewoman indicated the jury remained deadlocked and a lawyer for Shirley Boles, a 71-year-old Florida woman who sued Merck, again asked for a mistrial.
According to Merck's lawyer, the jury appeared to be "seven-to-one in Merck's favor." The natural tendency of litigators to put favorable spin on a mistrial might make one skeptical of such an assertion, but it's noteworthy that the plaintiff's lawyer pushed hard for the mistrial while Merck opposed the mistrial motion.
The WSJ report mentioned that a conference has been scheduled for October and the plaintiff's lawyer said he expects a retrial in the spring.
The next two trials are scheduled for Dec. 1, 2009 and Jan. 11, 2010.
Update: here's a link to the New York Times article, which contains a multimedia link to the juror's notes and the request for a new trial.
September 10, 2009
Fosamax Jury Update
CNN reports this morning that Judge Keenan has "called for a daylong 'cooling off' period" in the Fosamax (an osteoporosis drug) litigation. Apparently jury deliberations became quite tense; the jurors have been deliberating for the last week over Shirley Boles's case. Boles is a 71-year old retired deputy sheriff that lives in Ft. Walton Beach, Florida. She claims that Fosamax caused her jawbone tissue to die. By itself, the case is relatively small. But, because Schering-Plough is looking to merge with Merck, all eyes are on the jury to see how vulnerable Merck is financially. According to the New York Times, there are roughly 900 state and federal Fosamax cases with around 1,280 plaintiffs.
One of the jurors in Boles's case claimed that she was being both intimidated and threatened. Judge Keenan has given the jury until 11:15 a.m. on Friday (tomorrow) to reach a decision before declaring a mistrial.
September 9, 2009
Rebecca Love Kourlis and Jordan Singer on Managing Toward the Goals of Rule 1
Rebecca Love Kourlis (Denver) and Jordan M. Singer (Denver) have posted to SSRN their article, Managing Toward the Goals of Rule 1. Here's the abstract:
Two new studies may help federal judges better achieve Federal Rule of Civil Procedure 1’s objectives of a “just, speedy, and inexpensive” resolution of civil cases. The first study stems from an examination of the dockets of nearly 8000 closed federal civil cases, with the goal of identifying the areas of pretrial activity that are most closely associated with faster or slower times to disposition. The second study is a survey of nearly 1500 Fellows of the American College of Trial Lawyers, seeking their perceptions of and experience with the pretrial process. Collectively, these studies provide valuable insight into strategies that district and magistrate judges can employ in order to steer civil cases to a fair and efficient resolution. In this article, we summarize the key findings of both studies and offer a few salient recommendations based on those findings.
Satish K. Jain on the Efficiency of the Negligence Rule
Satish K. Jain (Jawaharlal Nehru University) has posted to SSRN his article, On the Efficiency of the Negligence Rule. Here's the abstract:
In the law and economics literature there are three different versions of negligence rule which have been discussed. These three versions are: (i) Injurer is liable for the entire loss if negligent, and not liable if nonnegligent. Injurer is negligent if his care level is below the due care level, otherwise nonnegligent. (ii) Injurer is liable for the incremental loss if negligent, and not liable if nonnegligent. Injurer is negligent if his care level is below the due care level, otherwise nonnegligent. (iii) Injurer is liable for the incremental loss if negligent, and not liable if nonnegligent. Injurer is negligent if there exists a precaution which could have been taken but was not, and which would have brought about reduction in expected loss of a magnitude greater than the cost of precaution; otherwise nonnegligent. In the literature it is taken for granted that all three versions of negligence rule are efficient. A careful analysis, however, shows that version (iii) is not efficient. This version, in fact, is not efficient even for the unilateral case. Efficiency of version (i) was established by Brown. Efficiency of version (ii) for the unilateral case was shown by Kahan; efficiency for the bilateral case is established in this paper.
Fosamax Update: Boles Jury Struggling; Summary Judgment Rejection
Two news items from the Fosamax front, one involving jury deliberations in the Boles trial, the other involving Merck's effort to win summary judgment in 24 other cases. The Fosamax litigation involves about one thousand plaintiffs' claims against Merck alleging that its popular osteoporosis drug caused necrosis of the jaw. Most of the litigation is in federal court, where Judge John Keenan of the SDNY is overseeing the MDL.
BOLES: In the first bellwether trial, Shirley Boles v. Merck, the jury has so far been unable to reach a verdict. The trial began on August 11, and the jury got the case on September 2. According to this Bloomberg report, the jury informed the judge that it was unable to reach a decision, and the judge yesterday told the jury to keep working:
A federal judge instructed a jury to continue deliberating whether Merck & Co.'s osteoporosis drug Fosamax caused a Florida woman’s “jaw death,” after the panel told the judge it couldn’t decide.
U.S. District Judge John Keenan in Manhattan told the jurors to keep working today. He explained that the case is important to both the plaintiff and Merck.
“It’s very stressful to sit here and an agreement cannot be reached,” a juror wrote in one of four notes to Keenan today about the lack of unanimity among the eight-member panel. “I feel that we never will reach a verdict because everyone has a different opinion.”
SUMMARY JUDGMENT: According to a Reuters report, Judge Keenan decided today that he would permit testimony by two plaintiff experts concerning causation based on relatively short-term exposure, and the court therefore rejected Merck's motion for summary judgment in 24 Fosamax cases:
In an opinion released Wednesday, U.S. District Judge John Keenan ruled that the plaintiffs could introduce testimony by two doctors to show that the drug can cause jaw damage after less than three years of continuous use. Keenan said the evidence is sufficiently reliable to allow a rational jury to establish such a connection. He said individual plaintiffs will then be allowed to present expert testimony that Fosamax caused them to suffer such damage, and that such testimony could by itself "make causation a genuine issue of fact for trial."
Objections in the Google Book Settlement
The New York Times has an article on the large numbers of objections filed in the Google book settlement as the date of the fairness hearing looms. The article is at this link: 11th Hour Filings Oppose Google's Book Settlement (September 8, 2009). For the uninitiated reader, a class action cannot be settled as a class without judicial approval. The fairness hearing is mandated by the class action rule and requires the judge to evaluate the fairness of the settlement. The standard for approval of a class action settlement is different in different circuits.
Jay Tidmarsh of Notre Dame is quoted in the article saying: “The number and quality of opposition filings is very unusual, the court is going to have to look at the public interest in the settlement.” Andrew Gavil of Howard University is also quoted.
This is a big settlement concerning something that a lot of very articulate people care about (and with respect to which there is a lot of money to be made) and so we are getting a very robust, serious public discussion through the settlement process. That is rarely the case, but perhaps Judge Chin can show us how a public dialogue can be incorporated into the fairness hearing process to make it more, well, fair.
Unfairness is more likely to show up, and not be addressed, in settlements that fewer people care about, where there is insufficient opposition for a truly adversarial proceeding where all sides are represented. That said, either the settlement is approved or it is not. The judge cannot rewrite its terms. So we shall see if Judge Chin gives counsel some clues as to what type of settlement he will approve if not this one.
I wrote about this topic some time ago in an Article entitled Fundamental Principles for Class Action Governance that I think is still relevant today (I've only recently posted the piece on SSRN). For an excellent treatment of the issue of fairness hearings, you might be interested in William Rubenstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. (2006) (available on SSRN).
Class Actions and Sneetches
You generally won't find much humor over here at the Mass Tort Blog. And, to be honest, this post is more about civil procedure generally than class actions in particular. But, there is a section on Class Actions and Sneetches in here that might give you a laugh. There's A Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss will be coming out in The Green Bag this fall. There will be a Part 2 in the Spring, but I don't want to give away its contents just yet. Nevertheless, if you have comments or suggestions I'd love to hear them and will address them in the second part.
September 7, 2009
Joseph Raz on Responsibility & the Negligence Standard
The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.
Pending Supreme Court Case on False Claims Act
More on the case, Graham County v. United States ex rel. Wilson, from the Washington Legal Foundation, which has authored an amicus brief.