Mass Tort Litigation Blog

Increase in Black Lung Disease

Today's Wall Street Journal has an article on increases in Black Lung Disease, Black Lung on Rise in Mines, Reversing Trend, by Kris Maher.  Black Lung claims are covered by a federal Black Lung program, which provides an administrative mechanism for compensation, funded by a tax on coal.  What's interesting is that the rise in claims occurs despite improving technology, which would be expected to decrease health problems.  Thus, the article explores possible causes, such as longer workshifts or more productive machinery that might produce more dust.  If machinery is the culprit, it's possible that individual mining companies might have had an incentive to prioritize powerful machinery over safe machinery, if the costs of worker illness are spread throughout the entire industry via a coal tax.  (Remedy: return to a system of individual tort claims against mining companies, or at least some administrative/tax penalty for companies with higher Black Lung claims.) 

But one other possibility for the rise in Black Lung needs to at least be considered and explored: fraud. Recent events with silicosis are similar: historically falling disease rates in tandem with improving technology, followed by an odd spike in supposed disease incidence.  In a now-storied Daubert inquiry, Judge Janis Jack, who herself had a background in nursing, inquired into the basis of expert testimony and diagnosis and uncovered biased and unreliable procedures that may amount to fraud; her discoveries effectively ended what appeared to be a new mass tort.  See NPR, Silicosis Ruling Could Revamp Legal Landscape.  Concerns of fraud and abuse should be even greater in the context of an administrative program that lacks the adversarial scrutiny of formal litigation.  And the Black Lung program has historically been plagued by such problems.  A 1989 article in the West Virginia Law Review, authored by a former Department of Labor counsel and a private practitioner, concluded,

[T]he program has been plagued by fraud and abuse. There have been investigations, and indictments, and convictions of agency personnel, claimant's representatives, and medical care providers.  The program has been infected by an undercurrent of “petty corruption.”  If anything, the program is the most often cited example of why Congress should leave occupational disease compensation to the individual states.

Allen R. Prunty & Mark E. Solomons, The Federal Black Lung Program: Its Evolution and Current Issues, 91 W. Va. L. Rev. 665, 734 (1989). 

BGS

The Individual Proof Rule

On December 1, 2009 Judge Weinstein issued a ruling granting partial summary judgment to the pharma company Eli Lilly in the lawsuit by the state of Mississippi concerning Zyprexia.  The opinion can be found here.  The folks over at Drug and Device Law blog discuss the opinion in which they colorfully state "Pigs Get Fat, Mississippi Got Slaughtered." 

The opinion is long, but it beautifully lays out the issues of aggregate proof in modern litigation.  Judge Weinstein's discussion of the caselaw concerning the Individual Proof Rule is masterful.  (slip op 64 - 96).  Although Weinstein notes the certification of a Third Party Payor's class action based on aggregate proof (253 FRD 69 (EDNY 2008)), its survival is in doubt because of "the majority of the Courts of Appeals' hostility to the use of aggregate proof...." (slip op at 96).

The Drug and Device Law folks also rightly point to Weinstein's characterization of three "types" of class actions (slip. op at 65):

1. Rule 23 Class Actions - this is what we mean when we say class action, a civil action that can be certified, to which Rule 23 protections apply and which binds all absent class members that do not opt out.

2. Quasi Class Actions - a new category that really ought to be called aggregate litigation. Not a certified class action but a collection of similar cases through an MDL that are resolved together. 

3. Structural Class Actions - where an individual plaintiff brings claims based on the underlying claims of large numbers.  In this case, the state of Mississippi was bringing claims for reimbursements it provided to thousands of individual patients for their medical costs incurred as a result of their use of Zyprexia.  Weinstein explains "In effect, Mississippi's individual claim is structured on the foundation of many thousands of conceptually separate claims, coordinated and aggregated by the State for purposes of recovering a portion of its overall Zyprexa-related costs..."

Quasi class actions, in my view, is really another way of saying aggregate litigation.  There's nothing really new about it and there's nothing binding about it as a formal matter. Informally (and that's the quasi part) it can probably feel pretty binding to the plaintiffs.  The lengths to which the lawyers in Vioxx went to try to bind plaintiffs and the broohaha that resulted in the legal ethics world illustrates both the non-binding and the feeling of being bound.  If the ALI proposals on Aggregate Litigation became the law, that would be a different story.  

The structural class actions concept brings to mind punitive damages, especially if you think punitive damages are a form of deterrence, intended to address spillover effects of defendant's conduct that is not accounted for in the compensation part of the lawsuit.  See Catherine Sharkey, Punitive Damages as Societal Damages 113 Yale L. J. (2003) (unfortunately you can't download it off SSRN, the link is only to an abstract).  This is the part of punitive damages that the Supreme Court was trying to carve out in Phillip Morris v. Williams, but I think conceptually that is impossible to do.  On that note, interested readers may want to take a look at Richard Nagareda, Embedded Aggregation in Civil Litigation, forthcoming in the Cornell Law Review and available on SSRN.

ADL

Aggregation, Community, and the Line Between

My most recent paper, Aggregation, Community, and the Line Between, is now available on SSRN.  This paper continues to develop to my larger project on nonclass aggregation, which draws from moral and political philosophy as well as social psychology to contend that groups of plaintiffs in large-scale litigation may have (or could be encouraged to develop) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and making external judicial coercion less necessary.  Specifically, this Article expands the political philosophy behind this idea and continues the conversation that Professor Lahav and I have started here and here.  I'm still in the process of revising the third article in the principal trilogy, Litigating Together: Social, Moral, and Legal Obligations (which suggests ways to implement the theoretical framework developed in Litigating Groups), but I hope to have a draft up in the next month or so.

Here's the abstract for Aggregation, Community, and the Line Between:

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic—the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp.—the time is ripe to challenge our assumptions about this line in nonclass aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing line or even the correct one. If we are willing to look for genuine cohesion among individuals who are procedurally aggregated but lack sufficiently common traits before the decision to sue, then we will find an alternative, but perhaps more compelling, justification for binding collective interests.

This Article draws on the dominant justifications for group litigation—consent and interest representation—to explore this alternative line-drawing scheme in terms of political theory. Encouraging plaintiffs to form groups and reach decisions through deliberation relies on a mix of individual consent and moral obligation. Allowing plaintiffs to exercise their free will when deciding whether to associate with others preserves the liberal tenet of self-determination and escapes the anti-democratic criticism leveled at class actions. Yet, a purely liberal approach fails to capture the obligatory aspect of reciprocal promises to cooperate and the communal obligations that attach. Although plaintiffs voluntarily enter into the group, once they are group members and have tied together their collective litigation fates, they should not be permitted to exit when doing so violates their commitments. Of course, the community itself determines the content of its members’ rights and obligations to one another. Thus, this Article concludes by explaining the rationale for group autonomy in terms of pluralism and communitarianism.

I'd be very interested to hear comments that readers might have, either by e-mail or in the comments section on this blog.

ECB

So What Should the Law Do About Jury Variability?

In my previous post pointing readers to Tim Lytton's thought provoking post on TortsProfBlog, I neglected to mention our own Byron Stier's work on the same issue.  Interested readers might look to his piece, Jackpot Justice available on SSRN.  Here is the abstract:

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.

One question I ask in my work in progress is what makes a process that uses other people's jury verdicts as a predictor of your own award fair?  Is this an evolving view of what fairness is in litigation? 

ADL

Around the Web

Dan Levine, Pair of Plaintiffs Lawyers May Face Different Fates in 9th Circuit Disciplinary Action, The Recorder (discussing disciplinary action in Nicaraguan pesticides case).

Francis E. McGovern (Duke), The Second Generation of Dispute System Design: Reoccurring Problems and Potential Solutions, Ohio St. J. Disp. Resol. (2008) (posted on SSRN).

William H. Simon (Stanford & Columbia), Moral Freaks: Lawyers’ Ethics in Academic Perspective, Geo. J. Lgl. Ethics (forthcoming) (posted on SSRN).

Keith N. Hylton (Boston Univ.) & Haizhen Lin (Indiana), Trial Selection Theory and Evidence: A Review (posted on SSRN).

Neil Vidmar (Duke) & Mirya R. Holman (Duke), The Frequency, Predictability and Proportionality of Punitive Damages in State Courts (posted to SSRN).

Patrick M. Connors (Albany), Which Party Pays the Costs of Document Disclosure?, Pace L. Rev. (2009) (posted to SSRN).

BGS

Embedded Aggregation in Civil Litigation

Richard Nagareda has just posted "Embedded Aggregation in Civil Litigation" on SSRN. I saw him present this piece at NYU and it is worth reading.  I always enjoy Nagareda's work and this is no exception.  The Article does a good job of explaining the emergence of this idea of the "quasi" class action.  As a rule of thumb, whenever one sees a doctrine with a "quasi" in front of it, legal categories are in the process of breaking down. Here is the abstract:

When one hears the term “aggregation” in civil litigation, the context that comes to mind involves the long-running debate over class actions. Viewed within its own terms, that debate tends to convey the impression that the world neatly divides itself into the mass effects somehow unique to class actions and the confined realm of one-on-one litigation. In the midst of this debate, a closely related set of issues has gone curiously underexplored. Here, the concern is not over some deviation from the one-on-one lawsuit. Rather, the basic suggestion is to circumscribe what an ostensible individual action may do in order to prevent that lawsuit from exerting some manner of binding force upon nonparties who are broadly similar to the parties involved. The idea, in other words, is to constrain what individual litigation may do, precisely because it is not a “de facto class action” empowered to act upon nonparties. Variations of this concern have emerged across what might seem an unrelated array of contexts: the Supreme Court’s 2008 decision in Taylor v. Sturgell, rejecting the procedural doctrine of “virtual representation”; the Court’s 2007 decision in Philip Morris USA v. Williams, regarding the constitutional due-process limits on punitive damages; and the multibillion-dollar deal reached in 2007 to resolve mass tort litigation over the prescription pain reliever Vioxx. This Article explains that there is something deeper going on here but that its nature and implications remain undertheorized. Each instance involves a more general phenomenon, what this Article delineates as “embedded aggregation.” In each, a doctrinal feature of what is ostensibly individual litigation – the scope of the right of action asserted, the nature of the remedy sought, or the character of the wrong alleged – gives rise to demands for the suit to bind nonparties in some fashion, beyond the ordinary stare decisis effect that any case might exert. Ironically, the features of Taylor, Williams, and the Vioxx litigation that make them situations of embedded aggregation also, in all likelihood, would defeat efforts to aggregate them overtly as class actions. The result is to leave the law today in a kind of procedural Catch-22, whereby embedded aggregation seemingly invites class-action treatment, but such treatment is unavailable due to the very features that make the situation one of embedded aggregation. This Article frames an emerging prescription for situations of embedded aggregation in a world in which the modern class action does not, and will not, realistically shoulder the entire regulatory load. The way out of the procedural Catch-22 in which the law finds itself consists of “hybridization” – the combination of individual actions with some manner of centralizing mechanism, just not always the unity of litigation generated by the class action device. Moving outside the parameters of the class action means shifting into new settings a similar need for a centralizing mechanism and, crucially, for legal regulation of the manner in which it may exercise coercive power. In so doing, this Article seeks to break down the prevalent supposition of a neat division between the perceived need for legal regulation of class actions and the supposedly benighted world of autonomous individual lawsuits. The time has come to move the conversation about aggregate procedure beyond the class action device – to broaden the menu of approaches available for our modern world of mass civil claims. Such an approach actually would remain more true to the historical emergence of the class action device over time than a prescription for either a vast expansion of that device or reflexive individualization in all situations of embedded aggregation. In addition, hybridization accords better with the emerging transnational conversation about the design of aggregate litigation procedures.

ADL

Choice of Law and Class Actions

The Shady Grove case got me thinking about uniformity (or lack thereof) in class action law across the circuits and reminded me that in the MTBE Products Liability Litigation, Judge Scheindlin (SDNY) held that the interpretation of the requirements of Rule 23 of the Fourth Circuit (the transferor court) not the Second Circuit (the transferee court), would apply to that Multi-District Litigation.  She wrote:

The requirements of class certification are inherently enmeshed with considerations of the trial, and under Lexecon the authority of the transferee court in multi-district proceedings ends once the pretrial proceedings are completed. “It would be neither just nor efficient to apply the law of this Circuit in considering class certification, and then force the transferor court to try a class action that it might never have certified.” ^FN42 Moreover, “[n]either party should be prejudiced in preparing for trial because the case was removed and transferred to another district in a different circuit.” ^FN43 “Thus, in considering a motion for class certification of state claims under Rule 23, the law of the transferor circuit controls because that is the law that will bind the trial court and class certification is an issue on which the Supreme Court has directed courts to ensure that the requirements of Rule 23 are satisfied for purposes of trial.”

In re MTBE Products Liability Litigation, 241 F.R.D. 185, 193 (2007). 

ADL

Judge Requests Consolidation of Birth Control Suits

From the Tort Prof blog: http://lawprofessors.typepad.com/tortsprof/2009/11/judge-requests-mass-tort-status-for-new-jersey-birth-control-suits-.html

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

Passing of David I. Shapiro

Litigator David I. Shapiro, founding partner of the firm Dickstein Shapiro, has died.  In a career that spanned many areas of litigation, Mr. Shapiro also was active in several prominent mass tort litigations, and came to focus on mediation as a case management method.  Here's an excerpt from the Wall Street Journal's obituary:

Mr. Shapiro branched out into class-action suits in the late 1960s. He handled the states' cases in a complex federal price-fixing lawsuit against manufacturers of the antibiotic tetracycline, winning a $100 million verdict for the states.

Later, Mr. Shapiro took on cases related to breast implants, asbestos and the Exxon Valdez oil spill. In 1984, he was assigned as a special master to handle a $180 million settlement resulting from the Agent Orange case, then among the largest class-actions suits to date.

But Mr. Shapiro came to feel that much of class-action litigation was driven by greed, and that cases could be better settled by other means. He developed an expertise in negotiations, and was chairman of the American Bar Association's National Institute on New Techniques for Resolving Complex Legislation.

"It's possible to get justice and recompense for consumers without the greed of the few that plagues the U.S. system," he told the Telegraph of London in 2007.

He taught mediation at the London School of Economics, and created a mediation practice at SJ Berwin. 

BGS

Fifth Circuit Ruling for State Farm in Hurricane Katrina Insurance Dispute

More from AmLaw Litigation Daily.  The opinion is here.  Congratulations to my former Skadden colleagues Sheila Birnbaum, Doug Dunham, and Ellen Quackenbos, who represented State Farm.

BGS

Zicam MDL

The Zicam MDL has been centralized in the District of Arizona before the Hon. Frederick J. Martone.  The order can be found here.  Hat tip: Torts Prof Blog. 

ADL

Advisory Jury Trials in FEMA Litigation

Plaintiffs' lawyers in the FEMA litigation arising out of the exposure of hurricane Katrina victims to fumes while they were living in government issued trailers have asked the court to conduct two "mock" non-binding summary jury trials.  The first plaintiff's case to be tried ended in a defense verdict. 

The idea is that these non binding trials would be summary proceedings - taking less than a day and costing a lot less than formal trials.  The rules for the trials would be more relaxed as well.  Juries would be told that their verdicts are advisory. 

The AP article -- found here -- quotes plaintiffs' lawyer Gerald Meunier: "It’s a perfect fit,” said Meunier. “The cost of conducting bellwether trials is substantial for both sides.”  The defendants are against the idea.  

(Hat tip: Richard Arsenault). 

As many of our readers know, I've written on bellwether trials (see my piece on SSRN).  In that piece, I argued in favor of binding bellwether trials.  I am currently working on an article about the uses of non-binding bellwether trials.  In particular, is there a justification for conducting bellwether trials other than efficiency?  As the quote from Meunier makes clear, if you think you are going to be settling cases on an aggregate basis then it makes sense from an efficiency perspective to conduct some kind of bellwether trial - either a full blown affaire or the more limited type of advisory trial that the plaintiffs are are proposing.  But what about all the plaintiffs whose cases are not getting tried?  How can we be certain that we are measuring the value of suits accurately?  What about fidelity to the substantive law requiring individualized causation? 

The truth is that there is no such thing as an "accurate" measure of a good for which there is no market such as the kinds of damages usually awarded in tort suits.  We rely either on jury verdicts, which studies show have substantial variance, or on comparisons with other cases conducted by lawyers using essentially qualitiative analysis.  But these are often based on a conveneince sample, that is, the sample of cases that is being analysed is not random and has a potential to be biased.  Bellwether trials offer a way to value cases -- assuming the sample is chosen using social science methods -- and limit the biases inherent in the more anecdotal method of comparison.  Then we can determine whether the variances in the distribution of the outcomes is such that we can draw conclusions from the bellwether trials or not.

More on this in a bit.  ADL

Martin Redish et al. on Cy Pres Relief and the Pathologies of the Modern Class Action

Martin Redish, Peter Julian, and Samantha Zyontz (all of Northwestern) have a new paper, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis.  Here's Redish's description:

BGS

Kansas Law Review - Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

Kansas Law Review's symposium this year is titled "Aggregate Justice: Perspectives Ten Years After Amchem."  Here's the official blurb and the line-up of speakers:

Friday October 30, 2009
Green Hall, 1535 W. 15th Street, Lawrence, Kansas 66045

We are excited to announce this year’s Kansas Law Review Symposium, which will focus on the present and future of aggregate litigation, using Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), as a springboard for this exploration. The Symposium will feature a number of well-known speakers in the field of aggregate litigation. The event will be held on October 30, 2009, at the University of Kansas School of Law in Lawrence, KS.

Speakers and their affiliations:

Elizabeth Chamblee Burch (J.D., Florida State University College of Law) is an Assistant Professor of Law at the Florida State University College of Law.

Howard M. Erichson (J.D., New York University School of Law) is a Professor of Law at the Fordham University School of Law.

Steven S. Gensler (J.D., University of Illinois, Urbana-Champaign) is the Welcome D. and W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law.

Laura J. Hines (J.D., University of Michigan) is a Professor of Law at the University of Kansas School of Law.

Linda S. Mullenix (Ph.D., Columbia University, J.D., Georgetown University Law Center) holds the Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law.

Tom Willging (L.L.M., Harvard Law School, J.D., The Catholic University of America, Columbus School of Law) is a senior researcher at the Federal Judicial Center.

Patrick Woolley (J.D., Yale Law School) is the Beck, Redden & Secrest Professor at the University of Texas School of Law.

Attendance is free and no reservations are required.

For more information, please contact Symposium Editor Shane McCall: shane@ku.edu.

Although my paper is still in its formative stages, its title is "Aggregation, Community, and the Line Between."  It builds on my earlier work, "Litigating Groups," and my current work-in-progress, "Litigating Together: Social, Moral, and Legal Obligations," which I'll present at the University of Florida next week.  The Kansas article examines our current line drawing scheme, which essentially asks whether the procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue.  Here's a short overview/abstract:

This Article non-rhetorically asks whether this is the right dividing line.  Although I rely principally on analogies to the class action context, I am particularly concerned about mass tort litigation that proceeds as nonclass aggregation because it fails the predominance test in Rule 23(b)(3).  Cohesion, as currently measured by courts is static in that the proxies—requesting uniform relief and having common characteristics that pre-date the litigation—are measured at a particular point in time.  And plaintiffs with procedurally aggregated tort claims are unlikely to exhibit the fundamental attributes of a cohesive local community—social bonds, social activities, and community attachment.  But what if, by using new communication mediums, we could return to the core cohesion seen in small, rural medieval communities without the corresponding geographic restrictions?  Put differently, what if, in drawing the line for cohesive groups, we traced actual cohesion regardless of when it arose?  This Article explores that question. 

ECB

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.

BGS 

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.  

BGS

Does the Google Settlement Matter to this Blog?

I was just perusing the ACS Blog and saw a post on Prof. James Gimmelman's take on the Google Book Settlement - which you may recall is the class action settlement that is giving Google a license to scan all the books in the world into a giant searchable database.  Here is what Gimmelman says:

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.

(Empahsis mine).  Sounds familiar, doesn't it?  Think about aggregate litigation -- all the safeguards of the class action device are absent because, well, its not a class action.  (Gimmelman doesn't think those protections are enough and he's right).  But when ostensibly individual lawsuits are resolved en mass, they are being treated as a class rather than individuals. There's no other way to resolve thousands of cases. People cry out for legislative solutions (asbestos anyone?) and nothing happens. Meanwhile, things happen in the world. People get sick. Defendants get sued.

How good is the legislature at dealing with these issues, if they were to turn their attention to it? Who would like the result?  Is the problem the judicial process or the outcome? (That is, can judges do a good job here or are we really worried about legitimacy?)  What is the public interest and who, if anyone, serves it?  I'm worried that these structural issues - courts vs. legislatures - avoid the real areas of substantive disagreement.

ADL

Jackpot Justice: Verdict Variability and the Mass Tort Class Action

I posted to SSRN my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temple Rev. 1013 (2007).  Notwithstanding the 2007 formal publication date, the article was published this year.  Here's the abstract:

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.

BGS

Sixth Circuit Fen-Phen Decision on Statute of Repose

Drug & Device Law praises statutes of repose and discusses a recent Sixth Circuit Fen-Phen decision.

BGS