Tuesday, September 24, 2013
Monday, September 23, 2013
Marketplace has a segment about lead paint litigation today featuring our own Elizabeth Burch. The trigger is a lead paint trial that closed in California today. See here for a news story. The question posed is how the lead paint manufacturers have escaped the kind of liability that tobacco or asbestos. What's the difference? Here are some theories. Caveat: These are just some ruminations, not a definitive work on lead paint by any stretch.
1. Who's doing the suing?
Municipalities vs. victims: Beth points out that in these lead paint suits municipalities or states are pursuing a public nuisance theory against the paint manufacturers and this makes them different than some more successful mass torts. Some courts think that this doctrine is a bad fit with the wrong at issue. But not all lead paint cases have been brought by municipalities. In the beginning, much like tobacco or asbestos, these cases were brought on behalf of victims. This is a late-stage litigation after failures at the individual or group victim level.
Poor children vs. workers: The victims of lead paint were poor children who ingested the paint chips, whereas in the tobacco and asbestos cases they were adult workers. This is not a doctrinal explanation but a socio-political one.
Scienter: In tobacco there was evidence of misrepresentation and manipulation. That seems to be a big part of the argument in the California courtroom from press reports: what did the lead manufacturers know and when?
2. What's the doctrine?
Market share liability. First, and I think most importantly, the idea of market-share liability failed to gain traction after some initial gains early on. Without being able to tie a particular manufacturer to the apartment where the paint was ingested, plaintiff can't show that this manufacturer caused the harm. In that sense lead not like asbestos (where work places kept records) or tobacco (where people know what brand they smoked).
Public nuisance doctrine is a relatively novel theory for this type of mass tort. That doesn't make it wrong, but it doesn't make it an easy sell to courts either.
3. Is there insurance? The asbestos manufacturers had more insurance coverage than you'd think due to some loose underwriting in mid-century. What is the lead paint manufacturers' coverage and how is this affecting these suits?
More theories welcome.
Saturday, September 21, 2013
Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2014 New Voices in Civil Justice Scholarship Workshop, to be held May 12-13, 2014, at Vanderbilt Law School.
The New Voices format maximizes collegial interaction and feedback. Paper authors do not deliver prepared “presentations.” Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.
1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.
2. Author qualifications. To be eligible to submit a paper, scholars must currently hold either a faculty position or a fellowship.
3. Format / Anonymity. We will consider preliminary drafts, drafts under submission, or accepted papers that will not be published by the time of the workshop. Papers should be formatted either in Microsoft Word or Adobe Acrobat. To maintain the anonymity of the process, please remove any self-identifying information from the submission.
4. Deadline. Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 1, 2014. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15. Final drafts are due no later than April 15.
The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. Additional information can be found at http://law.vanderbilt.edu/newvoices. If you have any questions, please email the chair of the selection committee, Brian Fitzpatrick, at firstname.lastname@example.org.ECB
This spring's 20th Annual Clifford Symposium at DePaul University College of Law is featuring Judge Jack Weinstein's Impact on Civil Justice in America. It looks like they have lined up an allstar cast, with Justice Stephen Breyer giving the special address. Speakers include:
Susan Bandes, DePaul University College of Law
Anita Bernstein, Brooklyn Law School
Shari Seidman Diamond, Northwestern University
Howard M. Erichson, Fordham University School of Law
David L. Faigman, University of California Hastings College of the Law
Kenneth R. Feinberg, Feinberg Rozen LLP
Richard D. Friedman, University of Michigan Law School
Judge John Gleeson, U.S. District Court, Eastern District of New York
John C.P. Goldberg, Harvard Law School
James R. Hackney, Northeastern University School of Law
Judith S. Kaye, Chief Judge (ret.) New York Court of Appeals; Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates
Alexandra D. Lahav, University of Connecticut School of Law
David Marcus, University of Arizona College of Law
Judge Brian R. Martinotti, Bergen County, New Jersey
Jennifer L. Mnookin, UCLA School of Law
Jeffrey Morris, Touro Law Center
Linda S. Mullenix, University of Texas School of Law
Robert L. Rabin, Stanford Law School
Judge Shira A. Scheindlin, U.S. District Court, Southern District of New York
Elizabeth Schneider, Brooklyn Law School
Tom R. Tyler, Yale Law School
Judge Jack B. Weinstein, U.S. District Court, Eastern District of New York
Adam Zimmerman. Loyola Law School, Los Angeles
The symposium takes place on April 24, 2014. Here's a link to the brocure.
Thursday, September 5, 2013
No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and BitTorrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly-situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation — avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party’s inherent ability to spread costs. If so, why is there such resistance to defendant aggregation?
Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants’ self-interest. This may be true in certain types of cases, particularly where the plaintiff’s claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants’ defenses would not be viable individually. These latter cases are explained, if at all, based on cognitive limitations. In any event, defendant self-interest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: inter-district related case coordination.
Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.
Wednesday, September 4, 2013
For those of us making brief reference to Ronald Coase in our Torts classes, here are a few links to helpful takes on Coase's scholarship and influence, in the wake of his recent passing: (1) Wall Street Journal editorial, The Wisdom of Ronald Coase; (2) Professor David Henderson (Naval Postgraduate School & Hoover Institution), The Man Who Resisted 'Blackboard Economics' (also in the WSJ); and (3) Cato Senior Fellow Walter Olson's post, Ronald Coase, 1910-2013.
Legalnewsline reports in Ala. SC to hear oral arguments in case over ‘innovator liability’ next week, by Jessica Karmasek. The U.S. Chamber of Commerce's Institute for Legal Reform has more discussion of the issues.
Tuesday, September 3, 2013
Professor Jennifer Robbennolt (Illinois) has posted to SSRN her article, The Effects of Negotiated and Delegated Apologies in Settlement Negotiation, 37 Law & Hum. Behav. 128 (2013). Here's the abstract:
Previous work has explored the influence that apologies have on the settlement of civil legal disputes. This study explored 2 aspects of apologies that commonly arise in the legal setting — the fact that many apologies may be negotiated with or requested from a wrongdoer in the context of settlement discussions and the possibility that an apology may be offered by a wrongdoer’s attorney rather than personally by the offender. In general, apologies given following a negligent action were found to improve perceptions of the offender and the situation. Full apologies that were given in response to a request by the injured party or at the suggestion of a mediator were viewed in ways that were similar to the same apology given spontaneously. On the other hand, full apologies that were offered by an attorney on behalf of the wrongdoer, although improving perceptions somewhat, were less effective than apologies offered directly by the wrongdoer. The motives attributed to the apologizer and general attitudes toward the civil litigation system also influenced perceptions of apologies.
Professor Jill Wieber Lens (Baylor) has posted to SSRN her article, No Matter the Enormous Cost: A Defendant's Accuracy-Based Right to Present Defenses. Here's the abstract:
The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.
The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court required individualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.
This Essay is a contribution to the 19th Annual Clifford Symposium on Tort Law and Social Policy. The focus of the Essay is on the alienability of legal claims. Debates over alienability often emphasize questions of commodification or efficiency, yet there are also interesting remedial implications. Drawing on insights from civil recourse theory, I will argue that some remedies may cease to be apt once a claim has been transferred. For example, apologies may no longer make sense if their recipient is not the party who was wronged, or someone affiliated with that party. Apologies are admittedly not a core remedy in tort law. But similar concerns may arise with respect to punitive damages, particularly if those damages have an expressive component, or are taken to provide a type of private revenge. More broadly, if civil recourse theorists are correct that private rights of action provide a type of accountability, or a mode of “getting satisfaction”, many tort law remedies may have a different meaning post-transfer. This Essay will explore these concerns and suggest several potential responses to them.
Friday, August 30, 2013
According to a news report, BP today asked the Fifth Circuit to reverse the district court's approval of the Gulf oil spill settlement. I have not seen the court filing, but according to this AP report as published by the NY Times, "BP is trying to persuade a federal appeals court that it should throw out a judge's approval of the company's multibillion-dollar settlement with Gulf Coast residents and businesses. Last year, BP PLC joined plaintiffs' attorneys in urging U.S. District Judge Carl Barbier to give the deal his final approval. On Friday, however, the company's lawyers argued in a court filing that Barbier's more recent interpretation of settlement terms have allowed businesses to receive hundreds of millions of dollars for inflated or fictitious claims." As told in the Houston Chronicle, BP would still support the settlement if the Fifth Circuit were to decide in BP's favor on its earlier appeal challenging Judge Barbier's rulings on the generosity of payouts.
BP's decision to ask for reversal of its settlement class action (a deal that BP had negotiated and agreed to, and for which BP had previously argued in favor of judicial approval), is a fascinating turn of events in light of the history of the Gulf Oil Spill litigation and settlement. Shortly after the Deepwater Horizon explosion, BP established a compensation fund to pay claims. Kenneth Feinberg was named administrator of the fund, which came to be knows as the Gulf Coast Claims Facility (GCCF), and the GCCF proceeded to settle thousands of claims. But BP later joined with a group of plaintiffs' lawyers to negotiate a settlement class action that would replace the GCCF as settlement mechanism. For BP, a settlement class action offered a greater prospect of finality because it could bind all class members who fail to opt out, whereas the GCCF settlement program could bind only those claimants who chose to accept their compensation offers. In other words, even though the claims systems strongly resembled each other, a key difference is that a settlement class action uses the adjudicative power of the court to bind class members, in contrast to the claims facility, which depended upon the consent of individual claimants to settle their claims.
I've argued elsewhere that settlement class actions should be impermissible because they use the power of the courts to disadvantage claimants. But the BP news drives home the point that the opposite problem can occur -- a defendant may feel disadvantaged by a settlement class action because it deprives the defendant of control over the settlement process.
Thursday, August 22, 2013
Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."
Update: here's a link to the New York Times article.
Wednesday, August 21, 2013
Professor Kate Greenwood (Seton Hall) has posted to SSRN her article, 'Litigant Regulation' of Physician Conflicts of Interest, Ga. St. L. Rev. (forthcoming). Here's the abstract:
While physicians’ financial relationships with pharmaceutical and medical device manufacturers are increasingly of concern to legislators and regulators, plaintiffs have had only limited success pursuing private law remedies for the harms that result from conflicts of interest. Courts have long channeled individual patients’ claims against their conflicted doctors into the medical malpractice cause of action, where patients have difficulty establishing that their physicians’ conflicts caused them to suffer concrete and compensable injuries. With recent notable exceptions, courts have also blocked patients’ claims against drug and device manufacturers. Courts apply the learned intermediary doctrine to dispose of failure-to-warn personal injury suits, without regard to whether the plaintiff’s physician had a financial relationship with the defendant manufacturer. Third-party payers, such as employers, insurance companies, and union health and welfare funds, have similarly struggled to overcome a strong presumption of physician independence. Courts routinely find that a physician’s prescribing decision breaks the chain of causation between a manufacturer’s illegal promotional efforts and a payer’s obligation to pay for a prescription, even when those promotional efforts include the payment of kickbacks.
Courts can and should move beyond the often counterfactual presumption of physician independence. In personal injury cases, this can be achieved through a nuanced analysis of alleged conflicts of interest that distinguishes between kickbacks, on the one hand, and legitimate financial relationships between manufacturers and physicians, on the other. Limited early discovery would allow plaintiffs to develop their claims about the influence of conflicts on their physicians’ decision-making without putting an undue burden on defendants. In economic injury cases, courts can move beyond the presumption of physician independence by allowing plaintiffs to use standard statistical methods to demonstrate that physicians’ prescribing decisions were not independent in the aggregate. If the doctrine were to evolve in these ways, it would amplify the role “litigant regulation” plays in the regulatory structure governing physician-industry relationships and bring closer the goal of ensuring that patients and payers are fairly compensated for the harms caused by conflicts of interest.
Adam Abelkop (Graduate Student, Indiana U., Bloomington, School of Public & Environmental Affairs) has posted to SSRN his article, Tort Law as an Environmental Policy Instrument, 92 Or. L. Rev. (forthcoming 2013). Here's the abstract:
Policymakers aiming to tackle any environmental problem have a diverse tool chest of policy instruments at their disposal, including command and control regulations, taxes, marketable allowance, and liability entitlements. Scholars of public health and safety have been debating the effectiveness of tort law as a regulatory tool for decades. The legal literature on this topic, though, is muddled because the field has failed to adopt a set of criteria by which to compare tort law to public regulation. Heightened clarity on the usefulness of tort law as a complementary policy instrument to public regulations may have legal and policy implications. This article therefore adopts evaluation criteria from the policy analysis and public policy fields — equity, legitimacy, efficiency, organizational competence, effectiveness, and cost-effectiveness — to evaluate the strengths and weaknesses of tort law as an environmental policy instrument relative to public regulation.
Monday, August 19, 2013
Am Law Litigation Daily has an article on the tobacco companies' filing another certiorari petition in an Engle progeny case: Tobacco Companies Seek Supreme Court Cert in Engle Case, by Ross Todd. Here's their petition for a writ of certiorari. The appellate team includes Greg Katsas (Jones Day), Paul Clement (Bancroft), and Miguel Estrada (Gibson Dunn).
I've previously addressed issue preclusion, verdict variability, and problems with the Engle case in my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013 (2007).
Professor Richard Zitrin (UC Hastings) has posted to SSRN his article, Regulating the Behavior of Lawyers in Mass Individual Representations: A Call for Reform, 3 St. Mary’s J. on Legal Malpractice & Ethics 86 (2013). Here's the abstract:
Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation framework by abrogating individual clients’ rights. These problems can be abated if the ethics rules offered better practical solutions to the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, and with changes that maintain the core ethical and fiduciary duties owed by lawyers to their individual clients, including loyalty, candor, and independent professional advice.