Friday, February 6, 2009
A report on CBS this evening interviewed several young girls and their families who reported serious side effects from taking Merck's Gardasil. The effects ranged from seizures, to heart problems, to death. The CDC's report on side effects indicates that:
As of August 31, 2008, there have been 10,326 VAERS reports of adverse events following Gardasil vaccination in the United States. Of these reports, 94% were reports of events considered to be non-serious, and 6% were reports of events considered to be serious.
Most news outlets haven't picked up the story yet, but here is one link:
Chronically Ill Girl Eyes Vaccine, Rocky Mountain News
Thursday, February 5, 2009
The Southwestern University Law Review has published its issue in connection with the symposium, Perspectives on Asbestos Litigation, which Professor Alan Calnan and I co-chaired here at Southwestern Law School on Friday, January 18, 2008. Here are the articles contained in the issue:
Alan Calnan & Byron Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459 (2008). Download calnan_stier_introduction_final_pdf.pdf
Mark A. Behrens & William L. Anderson, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479 (2008). Download behrens_anderson_article_final_pdf_121808.pdf
Helen E. Freedman, Selected Issues in Asbestos Litigation, 37 Sw. U. L. Rev. 511 (2008). Download freedman_article_final_pdf_121808.pdf
Michael D. Green, Second Thoughts About Apportionment in Asbestos Litigation, 37 Sw. U. L. Rev. 531 (2008). Download green_article_final_pdf_121808.pdf
Phil Harley, Judicial and Practical Perspectives: Transcript of Phil Harley, 37 Sw. U. L. Rev. 533 (2008). Download harley_transcript_final_pdf_121808.pdf
David G. Owen, Against Priority, 37 Sw. U. L. Rev. 557 (2008). Download owen_article_final_pdf_121808.pdf
Keith N. Hylton, Asbestos and Mass Torts with Fraudulent Victims, 37 Sw. U. L. Rev. 575 (2008). Download hylton_article_final_pdf_121808.pdf
James A. Henderson, Sellers of Safe Products Should Not Be Required to Rescue Users From Risks Presented by Other, More Dangerous Products, 37 Sw. U. L. Rev. 595 (2008). Download henderson_article_final_pdf_121808.pdf
Gregory C. Keating, The Heroic Enterprise of the Asbestos Cases, 37 Sw. U. L. Rev. 623 (2008). Download keating_article_final_pdf_121808.pdf
Richard Nagareda, Public and Private Law Perspectives: Transcript of Professor Richard Nagareda, 37 Sw. U. L. Rev. 659 (2008). Download nagareda_transcript_final_pdf_121808.pdf
Howard Erichson, Public and Private Law Perspectives: Transcript of Professor Howard Erichson, 37 Sw. U. L. Rev. 665 (2008). Download erichson_transcript_final_pdf_121808.pdf
Jospeh Sanders, Medical Criteria Acts: State Statutory Attempts to Control the Asbestos Litigation, 37 Sw. U. L. Rev. (2008). Download sanders_article_final_pdf_121808.pdf
Anita Bernstein, Asbestos Achievements, 37 Sw. U. L. Rev. 691 (2008). Download bernstein_article_final_pdf_121808.pdf
Neil Vidmar, Social and Cultural Perspectives: Transcript of Professor Neil Vidmar, 37 Sw. U. L. Rev. 717 (2008). Download vidmar_transcript_final_pdf_121808.pdf
Judy Sloan, Perspectives on Asbestos Litigation: Introduction to the Keynote Address, 37 Sw. U. L. Rev. 731 (2008). Download sloan_transcript_final_pdf_121808.pdf
Barbara Rothstein, Perspectives on Asbestos Litigation: Keynote Address, 37 Sw. U. L. Rev. 733 (2008). Download rothstein_transcript_final_pdf_121808.pdf
My many thanks again to all those who worked on the symposium and the issue, and of course to all of the speakers (including co-blogger Howard Erichson) who made for a fascinating day.
February 5, 2009 in Aggregate Litigation Procedures, Asbestos, Class Actions, Conferences, Ethics, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (1) | TrackBack (1)
According to Richard Arsenault - a plaintiff's-side lawyer specializing in complex litigation, pharma and mass torts - Wyeth has filed a letter alerting the Court to the fact that Pfizer is taking over Wyeth. See HME's post on the takeover here. What effect could this have on the opinion in Wyeth v. Levine? If Chief Justice Roberts recuses himself (as he has in the past in cases involving Pfizer) then this will change the dynamic of the decision; Arsenault predicts it may lead to another 4-4 split. Then again, since arguments were heard before Pfizer was publicly in the picture, the Chief Justice may not recuse himself. Any predictions?
Wednesday, February 4, 2009
Illustrating another angle in the complicated relationship between insurance and mass torts, the Hartford has filed a declaratory judgment action against the Peanut Corporation of America, presumably to avoid paying out on claims arising out of the spate of lawsuits we are about to see arising out of salmonella poisoning in peanut butter products. As Bill Marler points out in his blog, the complaint does not actually tell us what the Hartford's position is with respect to paying out on any salmonella related claims, but it is hard to imagine why an insurance company would take the trouble to file a declaratory judgment action unless it was trying to avoid payment. For more information, see the Marler Blog . You can download the suit from there.
The insurance issues in the Asbestos context are well studied - I imagine we're likely to see more fights with insurance in other mass tort contexts.
Professors Jonathan Macey (Yale) and Geoffrey Miller (NYU) have co-authored Judicial Review of Class Action Settlements, which has been published in the new, on-line, peer-reviewed Journal of Legal Analysis. Here's the abstract:
This article proposes a simple and coherent approach to judicial review of class action settlements. Specifically, we propose that for questions going to the adequacy of a settlement, where no warning signals of fraud or collusion are found, the court should act relatively deferentially by employing a lenient standard of scrutiny and approving a settlement if it has a rational basis. An intermediate level of scrutiny should apply when the settlement presents facial issues that implicate the fairness of the settlement. Such facial issues include the allocation of settlement proceeds among subgroups in a class, the presence of coupon-type relief, “shotgun” settlements occurring very early in the litigation, and settlements in overlapping class actions. In settlements with one or more of these characteristics, if the initial inquiry raises concerns, the court should demand a well-reasoned explanation for the choices made. Finally, where the components of a settlement present a direct conflict between the interests of class counsel and those of the class issues, such as issues related to attorneys’ fees, courts should employ exacting scrutiny and require convincing evidence that the proposal is reasonable.
Tuesday, February 3, 2009
Bruce Mandel and James Kline (both of Ulmer & Berne) list the areas of greater deference in their Washington Legal Foundation paper, Recent Ohio High Court Rulings Reflect Respect for Legislature's Role in Making Tort Law.
Nice, short backgrounder on class actions in the ABA Litigation News -- Class Actions 101: What Are These Lawsuits All About, Anyway?, by Julie Cantor (Munger Tolles).
Sunday, February 1, 2009
California Supreme Court Requires Damages as Requirement for Bringing Claim Under Consumer Legal Remedies Act
Dean Symeon Symeonides (Willamette; picture, left) has posted an article on SSRN -- Choice of Law in Cross-Border Torts. (H/t to Civil Procedure Prof Blog.) Here's the abstract:
This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.
One of the findings of the Article is that, despite using different approaches and invoking varied rationales, courts that have joined the revolution have reached fairly uniform results in resolving cross-border tort conflicts: they have applied the law of the state of either the injurious conduct or the resulting injury, but, in the vast majority of cases (86 percent), they have applied whichever of the two laws favored the tort victim. Another finding is that the vast majority of recent conflicts codifications around the world (a total of 20) have adopted the same solution: they apply whichever law favors the victim, by authorizing either the court or the victim directly to make the choice.
The Article concludes by examining whether the results of the American cases can be compressed into new content-sensitive, result-selective choice-of-law rules which would be free of the vices of the old rules and would be easy for judges to apply. It answers the question in the affirmative and, to prove the point, it offers three options for such rules.
The Charleston Regional Business Journal reports the bill includes limits on punitive and noneconomic damages, class-action reform, and limits bond requirements to appeal extremely large verdicts. (H/t to Torts Prof Blog.)