Mass Tort Litigation Blog

Hormone Replacement Therapy (HRT) Class Action Certified in Southern District of California

The PR news wire has more on the case being brought against Wyeth by plaintiffs' firms Beasley Allen, Gregory Holt & Associates, P.A., and Rushall McGeever.

BGS

Stacey Lee on Federal Preemption of Generic-Drug Failure-to-Warn Claims

Professor Stacey Lee (Johns Hopkins, Carey School of Business) has posted to SSRN her article, Pliva v. Mensing: Generic Consumers' Unfortunate Hand, Yale J. Health Pol'y L. & Ethics (forthcoming 2012).  Here's the abstract:

The United States Supreme Court held in PLIVA v. Mensing that federal preemption immunizes generic drug manufacturers from liability for state law failure-to-warn claims. As a result, consumers harmed by a mislabeled generic drug will be unable to bring actions against generic manufacturers under state law. The Court confessed that the resulting federal drug-labeling scheme dealt consumers an “unfortunate hand.” By removing generic manufacturers’ duty to improve the adequacy of their products’ warning labels, the Supreme Court calls into question the safety of generic drugs.

BGS 

NY Times Article on Chinese Drywall

On October 12, 2012, the New York Times reported on several decisions holding that Taishan Gypsum, the Chinese manufacturer of questionable drywall, was subject to personal jurisdiction in the United States.  Specifically, Judge Fallon in the federal MDL (located in Louisiana) and Judge Farina in the Miami Dade Circuit Court both ruled that Taishan Gypsum targeted the Florida market by "courting Florida companies, mailing drywall samples to Florida, [and] selling large amounts of drywall to Florida-based companies."

Even Congress has gotten involved and some members have introduced the Contaminated Drywall Safety Act that would insist the Chinese government force manufacturers to acquiesce to American jurisdiction.  So far, however, the bill has been passed only in the House.

The NY Times article is available here.

ECB

Legal Crisis Management

Two years ago, I blogged about the need for greater scholarly attention to mass tort crisis management.  Since then, crisis-management practice groups at law firms have continued to burgeon.  Here's a sampling of crisis-management groups at large law firms: Baker Hostetler, Bingham, Cooley, Covington & Burling, Freshfields, Gibson Dunn, McCarter & English, McDermott Will & Emery, Patton Boggs, Pillsbury Winthrop, Skadden, and Steptoe & Johnson.

For media coverage of recent growth in crisis-management groups, see the following: 

(1) Ashby Jones, On Covington and the 'Crisis Management' Boomlet, Wall Street Journal Law Blog (Jan. 6, 2011, 1:37 p.m.);

(2) Leigh Kamping-Carder, Savvy Firms Seek Business Through Crisis Management, Law360 (Feb. 19, 2010, 7:12 p.m.) (online registration required for article); and

(3) David Lat, A Look at Orrick's Crisis Management Practice, Above the Law (Oct. 8, 2009, 11:06 a.m.). 

While business schools have offered courses on crisis management and leadership, public-policy schools have offered courses on governmental crisis management, and communications schools have offered courses on crisis communications, law schools appear not to have provided curricular attention to legal crisis management. (The University of Texas School of Law has a course on crisis management, but it appears to track public-policy courses focusing on the government's role in a crisis.)  What might a law-school course on legal crisis management look like, focusing on the role of lawyers in preventing, managing, and resolving crises?  Here's a draft description I put together for such a course that I've been considering more fully developing:

Legal Crisis Management and the Media

Although crisis management has long been an important skill for lawyers, formal crisis management practices today proliferate among global law firms seeking to aid clients facing complex crises that span various countries, practice areas, and advocacy settings such as judicial, legislative, regulatory, or media inquiries.  This course will examine and integrate insights on legal crisis management from multiple disciplines, including not only law, but also management, leadership, communications, and public relations.  Within law, the course will draw upon ethics, counseling, negotiation, and alternative dispute resolution, and address lawyers' and clients' interaction with the media during a crisis, including global perspectives on the legal limits of media coverage.  In addition to developing conceptual approaches, the course will discuss case studies of legal crisis management implicating the law, culture, and media of multiple countries and areas, and consider lawyers' actual and potential contributions to successful resolution of the crises.   

BGS

The Economist on Global Fake and Substandard Pharmaceuticals

The Economist discusses the growing global problem of fake and substandard pharmaceuticals in Fake pharmaceuticals: Bad medicine -- The world's drug supply is global.  Governments have failed to keep up.  Absent from The Economist's discussion of government regulators and industry self-policing is the role of private litigation.  Couldn't emerging global tort litigation also deter wrongdoers and be part of the solution?

BGS

Three Class-Action Cases to be Argued Before SCOTUS

Daniel Fisher at Forbes has an interesting article previewing three class-action cases being argued before the Supreme Court of the United States this fall: Class-Action Lawyers Face Triple Threat At Supreme Court.

BGS

Possible BP Settlement with Federal Government Over Deepwater Horizon Gulf Oil Spill

Two Wall Street Journal articles in recent days have tracked recent settlements talks between BP and the federal government regarding civil and criminal liability in connection with the Deepwater Horizon oil spill in the Gulf.  On Wednesday, the Journal reported, BP Close to Spill Settlement: Multibillion-Dollar Deal With U.S. Would Combine Civil, Criminal Liabilities.  But on Thursday, the Journal noted in Slick Complicates BP Liability Talks that a new thin oil slick determined to be related to the prior Deepwater Horizon spill has appeared. 

BGS

Compounding Pharmacy, Pharmaceutical Manufacturers, and the Fungal Meningitis Outbreak

A Wall Street Journal article, Pharmacy in Outbreak Acted Like Drug Maker, by Mark Maremont, Jonathan D. Rockoff, and Timony W. Martin explores the history of the companies allegedly involved in the fungal meningitis outbreak.  The article notes that a class action has already been filed in federal court in St. Paul, Minnesota.

BGS

7th Annual ABA Chemical Products and Toxic Torts Regional Seminar

The seminar will take place in downtown New York at St. John's University School of Risk Management, on October 29, 2012.  Here's the brochure.

BGS

Michael Downey on Ethical Issues Related to Incentive Payments for Class Representatives

As part of the ABA Sound Advice series, Michael Downey (Armstrong, Teasdale) addresses ethical issues related to incentive payments for class representatives.

BGS

Christopher Robinette and American Law Institute

Congratulations to Torts Prof blogger Christopher Robinette (Widener) on being elected to the American Law Institute!  Having started together with him as Freedman fellows at Temple Law, I can also attest to his longstanding commitment to, and mastery of, tort law!  

BGS

Mark Behrens on Philadelphia Tort Litigation

Mark Behrens (Shook, Hardy) has published Philadelphia Tort Litigation: Forum Shopping and Venue Reform as a Federalist Society white paper.

BGS

Skadden's Jeffrey S. Lichtman Joins O'Hare Parnagian

Jeffrey S. Lichtman, formerly a partner for nearly 30 years in the Mass Torts and Insurance Litigation group at Skadden Arps in New York, has joined O'Hare Parnagian LLP, which has offices in New York and Scarsdale.  Jeff has broad experience in both commercial and products liability litigation, and played significant roles in the defense of the silicone breast-implant litigation, as well as the PPA (phenylpropanolamine) litigation involving appetite suppressants and cough-and-cold mediations.  Along the way, he's been repeatedly selected for inclusion in The Best Lawyers in America and New York Super Lawyers.  I had the good fortune to work with Jeff while I was at Skadden, and so am happy also to attest personally to his extraordinary drive and determination, and his creative intelligence in examining all angles of a case, to advance his client's interests.  Best wishes to Jeff on his new endeavor! 

 BGS  

Elizabeth Chamblee Burch and the American Law Institute

Congratulations to our own co-blogger Elizabeth Chamblee Burch on being elected to the American Law Institute!  Well deserved!

BGS

Current Issues in Global Tort Litigation

Those interested in a quick overview of many of the recent issues in global tort litigation might be interested in the following article from the Legal Intelligencer:  Is Growth of Foreign Class, Mass Actions Changing Products Law?, by Amaris Elliot-Engel (registration required).  I was happy to be quoted in the article along with leading practitioners, but even happier that my current Global Tort Litigation seminar course was mentioned. 

BGS

Kiobel and the Alien Tort Statute

The Supreme Court of the United States heard oral argument this week in Kiobel v. Royal Dutch Petroleum Co., which concerns corporate liability under the Alien Tort Statute.  Today, the Court posted the audio from the argument.  More generally on the case can be found at SCOTUSblog.

The Wall Street Journal has also addressed the Kiobel case in two editorials dubbed Alien Tort Invasion and Alien Tort Invasion-II.

BGS

UPDATE -- The Economist reports on the Kiobel oral argument in Law's Long Arm: A Review of Extreme Extraterritoriality.

Disaggregating

I posted a new and likely controversial piece titled "Disaggregating" on SSRN today.  As the abstract explains, the basic idea is that if courts can no longer resolve mass torts cases through judicial means, like approving a class action settlement, and must resort to encouraging private settlement, then perhaps we should rethink what we hope to accomplish by centralizing these cases. 

Rethinking centralization really requires that we consider two questions: First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve those claims collectively absent a private settlement?

This Article’s title suggests one answer: if minimal commonality continues to justify collective litigation, then the system should aggregate claims to resolve common concerns and then, as state laws or individual differences come to the forefront, disaggregate into smaller, cohesive groups whose members’ claims could be resolved collectively through public, judicial means, such as trials or dispositive motions. Disaggregating into smaller, more cohesive units could revive the use of issues classes, particularly when the class definition is correspondingly narrow.

To be clear, I do not claim that this is the only way to legitimately resolve mass torts.  But my previous work has prompted me to think more directly about the use of exit.  Exit can perform a number of functions.  It can signal dissatisfaction with substantive or procedural fairness.  It allows plaintiffs with fundamental differences over which litigation ends to pursue and how to pursue them to leave the group when significant conflicts arise.  It thus preserves plaintiffs' choice of forum and may also safeguard defendants' right to assert individual affirmative defenses.

Exit performs other functions, too, such as preserving substantive law and furthering democratic ideals.  For example, while private ordering through settlement might follow a handful of bellwether trials, jurors are geographically concentrated in the transferee forum.  That allows no public participation from other affected communities nationwide, whereas holding trials in plaintiffs’ original fora would further democratic participation ideals.  Jury trials are, after all, meant to be a communal enterprise and, as the American Tort Reform Association likes to point out, each community may approach the adjudicative and deliberative process differently.  In that way, disaggregating might also help maintain fidelity to state substantive law.

As always, I'd be interested in your comments - eburch at uga.edu

 

ECB

 

D. Theodore Rave on Governing the Anticommons in Aggregate Litigation

D. Theodore Rave (Furman Fellow, NYU) has posted his article, Governing the Anticommons in Aggregate Litigation, to SSRN.  Here is the abstract:

This article argues that there is an unrecognized “anticommons” problem in aggregate litigation. An anticommons occurs when too many owners’ consent is needed to use a resource at its most efficient scale. When many plaintiffs have similar claims against a common defendant, those claims are often worth more if they can be packaged up and sold to the defendant (i.e., settled) as a single unit — that is, the defendant may be willing to pay a premium for total peace. But because the rights to control those claims are dispersed among the individual plaintiffs, transaction costs and strategic holdouts can make aggregation difficult, particularly in cases where class actions are impractical. Recently the American Law Institute has proposed to modify long-standing legal ethics rules governing non-class aggregate settlements to allow plaintiffs to agree in advance to be bound by a supermajority vote on a group settlement offer. By shifting from individual control over settlement decisions to collective decision making, the ALI proposal may offer a way out of the anticommons and allow the group to capture the peace premium. Critics, however, say that allowing plaintiffs to surrender their autonomy will leave them vulnerable to exploitation by the majority and by their lawyers. Viewed through the lens of the anticommons, these concerns are manageable. Similar anticommons problems arise in many areas of law, ranging from eminent domain to oil and gas to sovereign debt. But instead of slavishly preserving the autonomy of individual rights-holders, these areas of law have developed strategies for aggregating rights when doing so will result in joint gains. Drawing from these other contexts, this article argues that the legitimacy of compelling individuals to participate in a value-generating aggregation depends on the presence of governance procedures capable of protecting the interests of the individuals within the collective and ensuring that the gains from cooperation are fairly allocated. Governance is thus the key to legitimizing attempts to defeat the anticommons in mass litigation through aggregation, whether by regulatory means, such as the class action, or contractual precommitment, as in the ALI proposal.

BGS

2013 New Voices in Civil Justice Workshop

Below is an announcement for the Branstetter Civil Justice Workshop. This is a wonderful experience if you are lucky enough to be selected! ADL

 

2013 NEW VOICES IN  CIVIL JUSTICE SCHOLARSHIP WORKSHOP

CALL FOR  PAPERS

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its annual New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law
School.

 This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. The format maximizes collegial interaction and feedback: in lieu of author “presentations,” 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.  

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.  

Submissions must be received at Branstetter.Program@vanderbilt.edu
no later than January 1, 2013.  Selected participants will have  reasonable  travel and accommodations covered.  Other  requirements and more details about the workshop can be found at www.law.vanderbilt.edu/newvoices.

Issacharoff on Assembling Class Actions

Sam Issacharoff (NYU) has posted "Assembling Class Actions" on SSRN.  The article is forthcoming in Washington University Law Journal as part of a symposium on the future of class actions.  Here's the abstract:

Five times in the past two years, the Supreme Court has engaged the propriety of class actions. Taken together, these cases revisit certain core issues in class action law, all turning on the need and justification for treating individuals as part of a collective entity for litigation purposes. When examined from the perspective of legal treatment of individuals as part of a collective – assembling the class action, in the terminology of the title – three distinct aspects of class organization stand out. First, the existence of the litigation entity requires that someone be in charge, and that in turn raises the problem of how to ensure the faithfulness of the appointed agent. Second, the decision to forge a litigation entity necessarily empowers one side of the dispute, and that requires some justification. And, finally, even when litigation entities exist, class action law must come to terms with the range of individual autonomy that should still be recognized, including the ability to contract out of collective representation. As developed in the difficult recent class action cases, the questions of leadership, underwriting, and autonomy help define how modern class action practice endeavors to provide equality of treatment and predictability in the interaction between the individual insults of aggrieved citizens and the undiscriminating consequences of mass society.

ECB