Mass Tort Litigation Blog

WLF Web Seminar on Off-Label Communication

On October 14, 2009, the Washington Legal Foundation hosted a web seminar, Communicating on Off-Label Treatments: Navigating the Treacherous Path Paved by Civil and Criminal Law Enforcement, with speakers Robert Salerno and Adam Hoffinger of Morrison & Foerster.  Streaming video of the event is available online.

BGS

Vioxx Verdicts

I am collecting all the Vioxx verdicts - here is what I have so far. I welcome reader corrections and information about the current status of all of these cases - have they been appealed to higher courts? settled and if so for how much? or is this the final disposition? 

1. Ernst -- TX -- $26,100,000 on 8/19/2005 -- Reversed on appeal 
2. Humeston -- NJ -- Defense verdict in Nov. 2005 -- New trial ordered -- $47,000,000 verdict 
3. Plunkett -- EDLA -- Defense verdict on 2/17/2006 -- New trial ordered
4. Cona -- NJ -- 2,270,000 verdict on consumer fraud and defense verdict on tort in Apr. 2006 -- appealed and $135 award upheld
5. McDarby -- NJ -- 1,570,000 verdict in Apr. 2006 -- appealed, 3,500,000 award upheld
6. Garza -- TX -- 32, 500,000 verdict on 4//21/2006 -- remitted to 8,700,000
7. Doherty -- NJ -- defense verdict on 7/13/2006 
8. Grossberg -- CA -- defense verdict on 8/2/2006
9. Barnett -- EDLA -- 51,000,000 verdict on 8/17/2006 -- new trial ordered -- settled?
10. Smith -- EDLA -- defense verdict on 9/17/2006
11. Mason -- EDLA -- defense verdict on 11/15/2006
12. Dedrick -- EDLA -- defense verdict on 12/13/2006
13. Albright -- AL -- defense verdict on 12/15/2006
14. Appell -- CA -- hung jury on 1/18/2007
15. Arrigale -- CA -- defense verdict on 1/18/2007
16. Kozic -- FL -- defense verdict on 10/8/2007
17. Hermans -- NJ -- defense verdict on 4/3/2007
18. Schwaller -- IL -- defense verdict on 3/27/2007

For readers wanting to cite to these, I have collected them in my article titled The Social Value of Jurisdictional Redundancy, 82 Tul. L. Rev. 2369 (2008) at footnotes 106 and 107. It is available on SSRN.

Thanks to George Conk (whose blog is called Otherwise) and Ben Zipursky, both of Fordham Law, for supplementing my research.

ADL

Confidential Verdicts

I was thinking about Erichson's post on the Prempro punitive damages verdict that has been temporarily sealedl so as not to bias the jury in subsequent trials.  This is a very curious aspect of the law to me - why shouldn't juries know how other juries have decided cases?  I am not sure where I come out on the question, but consider the following.

There are a lot of complaints that jury verdicts are inconsistent, even random, too high, too low, in any event different from what judges and lawyers think is the appropriate award for a given case.  Studies of historical jury verdicts, like those conducted by Neil Vidmar, show that there is some variability in jury verdicts that is not accounted for by the legally relevant facts of the case.  Surveys like those conducted by Michael Saks et al. demonstrate by and large agreement between judges and lawyers about case valuation, but more variability among lay persons (potential jurors).  Saks attributes this to the fact that jurors don't have a point of comparison, and the way judges and lawyers value cases is comparatively.

So why not give jurors a sense of what other juries have done, and let them decide what they think the appropriate amount of damages is in a given case.  Do we think juries will be too influenced by the number, that it will set a floor or a ceiling on their findings?  If we think variability of jury verdicts is a bad thing then wouldn't giving jurors a sense of other cases help limit that variability except where cases are legitimately different and deserving of different awards?  The doctrine of remittitur permits judges to compare jury verdicts and lower outlier verdicts, so the concept of  comparative valuation isn't foreign to our procedural regime.

ADL

South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million

Hat tip to the TortProf blog on this one.  You can see their post here.

ADL

Sealed Verdict in Prempro Punitives Trial

Yesterday, a Philadelphia jury found for the plaintiff in the punitive damages phase of a trial involving Prempro, the hormone replacement therapy.  How much Wyeth (now a unit of Pfizer) must pay Connie Barton, however, remains secret.  Judge Sandra Moss, who oversees the Prempro state court litigation in Philadelphia, ordered the verdict sealed because another Prempro trial had begun and the defendant requested the order to prevent biasing the other jury.  Until the verdict is unsealed, only Barton, her lawyers, and Wyeth's lawyers may see the verdict.  In the compensatory damages phase, which concluded last month, the jury awarded Barton $3.7 million.  Here's the report from Bloomberg about yesterday's verdict.

HME

Class action filed involving Puerto Rico explosion

On Friday morning, a huge explosion occurred at a Caribbean Petroleum Corp. fuel storage facility near San Juan, Puerto Rico.  On Friday afternoon, the first class action was filed.  Here's the WSJ Law Blog report with a brief interview in which Louisiana plaintiffs' lawyer Daniel Becnel explains how he became involved so quickly and what immediate steps he took:

I got a call this morning from [Puerto Rico lawyer] John Nevares, who said he knew I’d handled these kinds of cases and that he had clients. What I immediately did was started to put together the complaint. I hired a mechanical engineer, a metallurgist, a psychiatrist, and an expert in air modeling. We also got up a Web site, so cases have been coming in on the Internet.

Responding to The Law Blog's question about the importance of filing first, Becnel focuses on getting the lawsuit started before the defendant has too much time to take control:

It’s not necessarily important to be the first, but it’s important to get in the door quickly. One of the main reasons is to get a preservation order in place to make sure that nobody destroys physical evidence. You need to get in there fast to find out what really happened.  When something like this happens — and I’ve worked on a handful of them — the first thing a company does is call its insurance claims agent. They’re on the scene within an hour. They’ll try to show that nobody’s hurt and that the damage is minimal. They’ll put out a press release. You’ve got to get in there so you can start working the other side as soon as possible.

HME