Friday, February 26, 2010
After six hours of deliberation yesterday, a Pennsylvania jury reached a defense verdict in the case of Foust v. Wyeth. This case comes on the heels of a number of plaintiffs victories. Just this past Monday a jury issued a verdict for the plaintiff in Singleton v. Wyeth, finding $3.45 million in compensatory damages and $6 million in punitive damages.
In Foust, the jury found for Wyeth on causation. One reason might be this, as reported by The Legal Intelligencer:
In an unusual aspect of the case, Foust's identical twin sister, Carol, took an HRT drug but did not get breast cancer. Both the plaintiffs and the defense sought to use Carol Foust's lack of cancer to their advantage in making arguments to the jury.
You don't see those kinds of facts every day. The jury did find that Wyeth failed to adequately warn consumers about the risk of the drug.
h/t George Conk
Thursday, February 25, 2010
Kyle D. Logue (Michgan) has posted "Coordinating Sanctions in Torts" on bepress. Here is the abstract:
This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in such cases be displaced or preempted? The answer is: It depends. Sometimes, even in the presence of overlapping non-tort regulation, there is a regulatory role that tort law can play, sometimes not.
For one example, if the non-tort regulatory standard is already “fully optimizing,” in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory authority, then tort law arguably should be fully displaced in the sense that no tort remedy should be available for harms caused by such an activity. If, however, the regulatory standard is only “partially optimizing” (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role to play.
This framework can be used to explain such tort doctrines as negligence per se and suggests circumstances in which there should be a corollary doctrine of non-negligence per se. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. Finally, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.
Wednesday, February 24, 2010
Monday, February 22, 2010
Professor David Owen (South Carolina) and I are quoted in a report tonight on All Things Considered on National Public Radio; the audio report -- Toyota Seen Facing Multiple Lawsuits, by Wendy Kaufman -- will also be posted on the web tonight at 7:00 p.m. EST.
February 22, 2010 in Aggregate Litigation Procedures, Class Actions, Informal Aggregation, Lawyers, Procedure, Products Liability, Regulation, Resources - Federal Agencies, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)
Saturday, February 20, 2010
I attended three hours of the Google Book Settlement fairness hearing before Judge Denny Chin on Thursday. The event was well-attended, with two overflow rooms filled to the brim. In the courtroom I was in (the second overflow room) there were over 70 people.
28 objectors were slated to speak. I sat next to a very well dressed gentleman representing one of the objectors who had elected not to speak. And indeed, many of the objections were repetitive. But it was a great demonstration of the use of fairness hearings to open up a public dialogue.
One of the central objections to the settlement that is important from our perspective (the mass tort folks) is that the judge is overreaching in allowing this settlement to go forward. This is a separation of powers argument - Congress should legislate a massive digital library rather than allowing Google to do this through the court system. It brings up the age old question, what are the limits of adjudication? Many of the issues raised there have been addressed in the mass torts context such as
1. Is this a litigation or a type of business transaction? (see William Rubenstein, A Transactional Model of Adjudication, 89 Georgetown Law Journal 371(2001)). People opposing the settlement say that Google is using the litigation to do what is too costly to do on the ground - get permission from every rightsholder.
2. Is this class action transforming copyright law? The way that class actions have an effect on the substantive law -- increasing the cost of remedy from the perspective of the defendant, allowing persons who would not otherwise bring suit to bring it (that is, enabling litigation), allowing defendant to get global peace -- is a topic that will soon be addressed in a very different context by the Supreme Court in the Shady Grove case. Class actions do alter the substantive law by allowing cases to be collected that would otherwise proceed individually. But does this mean they are impermissible? In a recent book called Wholesale Justice, Martin Redish argues that this type of class action violates the Rules Enabling Act by altering substantive rights. On the other hand (as Redish himself recognizes), the Rules Enabling Act's requirement that procedural rules not modify any substantive rights doesn't make any sense, as all 1Ls know from learning the Erie doctrine. The question ought to be, is the way that this settlement interacts with copyright law in particular a problem? This requires an interpretation and debate about the substance of copyright law and the importance of the default that the user actively seek permission of the copyright holders to our understanding of copyright. This is something courts are well situated to do.
3. Is this class action usurping the role of the legislature? This is the same question above - shouldn't it be the legislature that enacts copyright legislation? If the legislature doesn' t want to act, its not the court's role to step in. This reminds me of the famous essays by Lon Fuller and Abe Chayes. In his essay The Forms and Limits of Adjudication, Fuller argued that some types of cases are polycnetric disputes. "By this term he meant problems in which many points of decision were interlocked, so that the correct solution of any one issue depended on the solution for all the others. Perhaps the most important example of what he had in mind was the system of wages and prices, but he suggested that even deciding who should play what position on a football team raised much the same issue. "It is not merely a matter of eleven different men being possibly affected; each shift of any one player might have a different set of repercussions on the remaining players: putting Jones in as quarterback would have one set of carryover effects, putting him in as left end, another. Here, again, we are dealing with a situation of interacting points of influence and therefore with a polycentric problem beyond the proper limits of adjudication." (see summary here). Chayes, in an article called "The Role of the Judge in Public Law Litigation" argued that judges do in fact try such disputes with multiple parties and complex issues and that this is appropriate. (see a summary here).
What the fairness hearing demonstrated to me was the extent to which, contrary to the views expressed by Fuller and Redish, courts are capable of being a place where dialogue between multiple parties takes place -- and fruitful dialogue. Furthermore, the lawsuit can spur an interaction with the legislative branch in which Congress sees that intervention is necessary.
Friday, February 19, 2010
Initially Judge Hellerstein had ordered six bellwether trials. Now apparently he is conducting 12. In the order naming the 12, I saw reference to a status conference in which the reasons for the number were apparently discussed. So I went down to 500 Pearl Street, where the Southern District of New York is located, to read the transcript of that conference. I learned some interesting things, but not why 12 instead of 6 (or 30 for that matter, which is the number of cases of the 9,000 or so in the litigation that are proceeding to trial readiness). The judge has also not yet decided whether cases will proceeding one after another or simultaneously before multiple judges, but he is against grouping cases together for trial.
The term sheet for the settlement is 70 some odd pages according to the judge. This means that the settlement discussions are quite advanced. The lead lawyers did not want to say anything about the discussions in open court. But one lawyer did complain that he wasn't involved in the discussions.
Also, although the judge was clear that this is not a class action and that he had refused to certify it has such, he is planning to hold a fairness hearing about the settlement, should one be reached. Here's what he says: "...because of the extraordinary public interest in this case and because of the limited nature of the funds that are available for settlement, that there will undoubtedly be fairness proceedings that will be part of the settlement. That means that what is fair and reasonable will have to be determined by the court, subject to the right of appeal."
Judge Hellerstein also stressed the importance of fairness to individual plaintiffs.
....my conception of fairness relates not only to the aggregate size of the settlement, but more to the individual settlements themselves. .... I regard the 9,000 cases as just those, 9,000 separate cases. Many of them are similar. Many of them can be ranked for convenience into categories, but in their fundamental aspects they have an individual plaintiff in each individual case, plus the possibility of additional family members. But they all revolve around one personal injury or one death, as they case may be.
So the fairness to individuals is an extremely important aspect of settlement. And I will be looking carefully, if and when there is a settlement at how individual members are treated.
If any readers know why 12 and not 6 (or 30) please contact me.
Monday, February 15, 2010
Professor Carrie Menkel-Meadow (Georgetown & UC Irvine) and Dean Bryant Garth (Southwestern) have posted to SSRN their essay, Process, People, Power and Policy: Empirical Studies of Civil Procedure and Courts, which is forthcoming in the forthcoming Oxford Handbook of Empirical Studies. Here's the abstract:
This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, access to courts, discovery practices, evaluations of the effects of particular rules, such as Rule 11 verification requirements, class actions, and practices such as court use of ADR, case management, and pre-trial conferences. The authors argue that empirical research on procedures and policies in courts have mostly been conducted in service of particular reform agendas, with a few exceptions of more "pure academic" study. The essay concludes with some suggestions for research questions that explore questions of who does the research for what purposes. Do researchers use research to develop their own "human capital" or legal reform influence? How do we know what optimal rates of court usage are? Can empirical studies shed light on more normative questions about what are optimal levels of process, access to courts, and when justice is delivered in formal court institutions?
Sunday, February 14, 2010
The Wall Street Journal's Law Blog reported Friday that Judge Manuel Real told Bar/Bri antitrust litigators that they could recover around $1.26 million in costs, but not the $12 million in attorneys fees. Judge Real cited concerns about conflicts of interest and ethical concerns in forfeiting McGuireWoods LLP's fees. The full story is available here.
The Economist suggests a connection between Toyota's continuing manufacturing problems and a corporate culture that fails to raise problems because it is overly deferential. I have separately heard that Asian airplane co-pilots have had to be specifically trained to overcome their traditional cultural deference and challenge the actions of pilots, if warranted, in emergency situations. Here's an excerpt from article:
Toyota’s problems are its alone, but they highlight broader failings in Japanese corporate governance that make large companies particularly vulnerable to mishandling a crisis in this way. Such firms typically have a rigid system of seniority and hierarchy in which people are reluctant to pass bad news up the chain, thus keeping information from those who need to hear it in a misguided effort to protect them from losing face. In many firms, including Toyota, family ties make challenging the boss all but impossible. Any attempt to short-circuit the hierarchy is deemed an act of disloyalty and a violation of the traditional consensual corporate culture. Groupthink becomes entrenched because there is so little mobility between companies: hiring from outside is thought to disrupt a firm’s internal harmony, and an executive willing to move will be stained as a disloyal “job-hopper”. This further hinders firms’ ability to take bold, decisive action. The preference for harmony crowds out alternative viewpoints.
Saturday, February 13, 2010
On behalf of GW's James F. Humphreys Complex Litigation Center, Professor Roger Trangsrud has organized a conference on the American Law Institute's Principles of the Law of Aggregate Litigation. It will be held at George Washington University Law School on March 12, 2010. The four ALI reporters (Sam Issacharoff, Richard Nagareda, Bob Klonoff, and Charlie Silver) will serve as panel moderators. More information on registration (which is free, but space is limited) can be found at: http://www.law.gwu.edu/News/20092010Events/Pages/AggregateLitigationCriticalPerspectives.aspx
Here's the write-up of the panels:
Panel One: Issues in the Certification of Class Actions
A. Context and introduction by moderator Richard Nagareda, professor of law, Vanderbilt University School of Law
B. Certification Procedures after IPO and Hydrogen Peroxide (Richard Marcus, Horace O. Coil Chair in Litigation, University of California Hastings College of the Law)
C. Game Theory, Opt-Out Rights, and the Indivisibility of Remedies (Jay Tidmarsh, professor of law, Notre Dame University School of Law)
D. Solving Choice-of-Law Issues in State-Law Class Actions (David Rosenberg, Lee S. Kreindler Professor of Law, Harvard Law School)
E. Aggregate Litigation's Jurisdictional Confusion
(Patrick Woolley, Beck, Redden & Seacrest Professor, University of Texas School of Law)
F. Response: Richard Nagareda
Panel Two: Other Issues Attending the Use of Class Actions
A. Context and introduction by moderator Robert Klonoff, dean and professor of law, Lewis & Clark Law School
B. Evaluating the Fairness of Class-Action Settlements (Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, The George Washington University Law School)
C. Shady Grove, Erie, and Statutory and Contractual Limitations on Class Actions. (Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas School of Law)
D. Precluding Abandoned Claims in Class Actions (Ed Sherman, W.R. Irby Chair in Law, Tulane University Law School)
E. Response: Robert Klonoff
Panel Three: Non-Class Aggregate Litigation
A. Context and introduction by moderator Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law
B. Aggregation and Privatization of Enforcement (Judith Resnik, Arthur Liman Professor of Law, Yale Law School)
C. Group Consensus, Individual Consent: Governance in Nonclass Aggregation (Elizabeth Chamblee Burch, assistant professor, Florida State University College of Law)
D. Rethinking Adequacy of Representation: Lessons for Class Actions and Aggregate Litigation (Robert Bone, G. Rollie White Teaching Excellence Chair in Law, University of Texas School of Law)
E. Response: Samuel Issacharoff
Panel Four: Ethics in Aggregate Litigation
A. Context and introduction by moderator Charles Silver, Roy and Eugenia C. McDonald Endowed Chair in Civil Procedure, professor of government, University of Texas School of Law
B. Ethical Issues in the Aggregate Settlement of Related and Unrelated Claims (Thomas Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School)
C. The Need for Greater Ethical Rules in Class-Action and Other Agregated Litigation (Nancy Moore, Nancy Barton Scholar, professor of law, Boston University School of Law)
D. Ethical Constraints on Initiating and Resolving Non-Class Aggregate Litigation (Lester Brickman, professor of law, Benjamin N. Cardozo School of Law)
E. Mass Settlements and Informed Consent (Howard Erichson, professor of law, Fordham University School of Law)
F. Response: Charles Silver
Wednesday, February 10, 2010
The case is Abigaile Lebron, a minor, et al. v. Gottlieb Memorial Hospital, et al., Nos. 105741, 105745, Ill. Sup. decided February 4, 2010. The basis of the decision is that damages caps violate separation of powers.
h/t George Conk & From the Jury Blog
Boaz Shnoor has posted "Loss of Chance: Behavioral Analysis of the Difference Between Medical Negligence and Toxic Torts." Here is the abstract:
In recent years, more courts have allowed claims for "loss of chance" (LOC) in medical negligence claims, while denying it in other cases, including toxic torts. At the same time, most of the legal theoretical literature supports recognizing LOC in toxic torts, and claims that recognizing LOC in toxic torts is at least, if not more, advantageous than recognizing it in medical negligence.
This article aims to explain this intriguing gap between theory and practice using behavioral law tools. The article claims that the differences in the way courts emotionally react to these kinds of cases leads courts to act differently in cases where current law does not allow them to rule in favor of the plaintiff and against the defendant. In medical negligence cases, courts strongly feel that defendants' negligent behavior is an outrageous betrayal of trust and that the plaintiffs' unique situation is so unfair as to justify punishing the responsible person. Therefore, they seek new legal ways to find the defendant liable, and are inclined to adopt new liability theories when causation was not proved. In contrast, courts do not feel so strongly about toxic torts cases, since no trust is involved and the plaintiff did not expect anything out of the polluter in the first place. Therefore, their inclination to adopt new liability theories that will allow for a verdict in favor of the plaintiff in the absence of proof of causation is much weaker.
The above analysis has major implications for behavioral law analysis: it emphasizes the pervasiveness of behavioral elements in the legal decision making process; it shows that the willingness of courts to change the law is influenced by behavioral effects; and it can aid theorists and lawyers in identifying situations in which the courts would be susceptible to changing the law. Finally, it can aid in predicting in which cases the LOC doctrine has better chances to be accepted in the future - in situations involving betrayal, where the negligent behavior of the defendant is anomalous compared to the usual behavior in the defendant's reference group, and the plaintiff's damage is exceptional.
Tuesday, February 9, 2010
Lucian Bebchuck (Harvard) and Alon Klement (Radzyner School of Law & B.U.) have posted an encyclopedia entry on Negative Value Suits on SSRN. Here is the abstract:
We review the literature on negative-expected-value suits (NEV suits) – suits in which the plaintiff would obtain a negative expected return from pursuing the suit all the way to judgment. We discuss alternative theories as to why, and when, plaintiffs with NEV suits can extract a positive settlement amount. In particular, we explain how such a plaintiff can extract a positive settlement due (i) asymmetry of information between the parties, (ii) divisibility of the plaintiff's litigation costs, (iii) upfront costs that the defendant must incur before the plaintiff incurs any costs; (iv) expectation that the arrival of information during the course of the litigation may turn the suit into a positive-expected-value one, (5) reputation that enables the plaintiff to bind itself to going to trial if the defendant refuses to settle; or (6) the plaintiff’s having a contingency fee or retainer arrangement with its lawyer.
Monday, February 8, 2010
Kenneth Abraham has an enlightening guest post on TortsProf Blog called "Four Conceptions of Insurance." The relationship between the tort system and insurance systems is fascinating and important. More work needs to be done in this area.
Sunday, February 7, 2010
Bloomberg reports new developments in the prempro litigation. Judge Norman Ackerman of the Philadelphia Court of Common Pleas issued an order cutting the punitive damages jury award in Barton v. Wyeth from $75 million to $5.6 million. Bloomberg reports:
Besides cutting the punitive damage award, Ackerman also added more than $1.2 million in interest to Barton’s $3.7 compensatory damage award, according to the docket entry. That brings the award’s total to $4.9 million, the judge noted in the entry.
The case is Barton v. Wyeth Pharmaceuticals Inc., 040406301, Court of Common Pleas, Philadelphia County, Pennsylvania.
If anyone has the opinion, please contact me. ADL
Thursday, February 4, 2010
The New York Times has published an article by Mireya Navarro entitled "Effort to Settle Sept. 11th Lawsuits". The article describes (albeit without much detail) the efforts to settle the lawsuits brought by first responders against various contractors and New York City in the aftermath of the terrorist attack of September 11th. Twelve cases have been scheduled to go to trial in May 16, ten thousand total have been brought against approximately 200 defendants. Apparently there is a 70 page settlement plan and the judge says that the parties have been working "very hard." The article also mentions a bill pending in Congress to compensate the workers at the disaster site, similar to that created to compensate the victims of the tragedy.
The judge is using a relatively sophisticated approach to sampling, first surveying the class and using a severity chart to pick cases for trial. The special masters that came up with it are both law professors and experts in mass torts: Aaron Twersky (Brooklyn) and James Henderson (Cornell).
The article quotes two law professor mass tort experts. Anthony Sebok (Cardozo) explains the difficulty of the causation issues: "“There’s not a lot of experience with this kind of risk, [i]t may be very difficult from a technical point of view to get testimony from experts.”
Richard Nagareda (Vanderbilt) explains “Ultimately, everybody understands there’s going to be some sort of comprehensive settlement. The question is, what is the price?”
I am working on a paper that attempts to answer this question - what is the best way to determine the price. I think holding some sample trials is the best way, but it sounds like the players in this litigation disagree and would prefer to reach a settlement prior to trial. The judge is prepared for this and apparently has suggested having multiple judges try the sample cases rather than trying them together.
Impending trials have a way of focusing the mind. I predict a settlement by May.
On Tuesday the New Jersey Supreme Court issued a decision exercising broad personal jurisdiction over a UK Manufacturer who distributed goods through an independent Ohio distributor sued by a resident of New Jersey.
The decision is Nicastro v. McIntyre Machinery, 2010 WL 343563 (NJ, Feb. 2, 2010). The Court (a 5 justice majority) explained:
“Today, all the world is a market. In our contemporary international economy, trade knows few boundaries, and it is now commonplace that dangerous products will find their way, through purposeful marketing, to our nation's shores and into our State. The question before us is whether the jurisdictional law of this State will reflect this new reality. .... Due process permits this State to provide a judicial forum for its citizens who are injured by dangerous and defective products placed in the stream of commerce by a foreign manufacturer that has targeted a geographical market that includes New Jersey. See id. at 480-83, 508 A.2d 1127. The exercise of jurisdiction in this case comports with traditional notions of fair play and substantial justice.”
Court articulated the rule that "A foreign manufacturer will be
subject to this State's jurisdiction if it knows or reasonably should know that
through its distribution scheme its products are being sold in New
What were defendant's contacts with New Jersey? It targeted the U.S. market. The Court explains:
“It did so by engaging McIntyre America, an Ohio-based company, as its exclusive United States distributor for an approximately seven-year period ending in 2001. J. McIntyre knew or reasonably should have known that the distribution system extended to the entire United States, because its company officials, along with McIntyre America officials, attended scrap metal trade shows and conventions in various American cities where its products were advertised. Indeed, J. McIntyre's president was present at the Las Vegas trade convention where his exclusive distributor introduced plaintiff's employer to the allegedly defective McIntyre Model 640 Shear that severed four of plaintiff's fingers.”
There were two forceful dissents in the case. Here is a taste:
“Repeated quotations and soaring language about the realities of the global marketplace might compel the casual reader to follow what appears to be the majority's relentless logic. But those rhetorical techniques cannot mask the fact that the majority today embarks on a path that stretches our notions about due process, and about what is fundamentally fair, beyond the breaking point.”
(h/t Mike Martin (Fordham))
Wednesday, February 3, 2010