Mass Tort Litigation Blog

Parness on Judicial Settlement Conferences

In the vein of scholarship propounding greater bureaucratization of the courts comes this article - "Improving Judicial Settlement Conferences" - from Jeffrey Parness (Northern Ill.) (and available on SSRN) suggesting more formalization and guidelines for judicial settlement conferences.  Here is the abstract:

Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences. I am also concerned. But the best response is not to abolish or severely restrict judicial settlement conferences. Rather, it is to add more formality and more written guidelines. New guidelines would discourage each trial court judge from marching to the beat of her own drummer. These guidelines should involve, as suggested by Professor Fuller, both more adversary control and more detailed and written criteria. In addition, new guidelines should expressly recognize that the claims and interests that might be discussed at judicial settlement conferences are far broader than the justiciable claims that might be discussed at trial preparation conferences. Thus, civil case settlement talks and civil case settlements subject to same-case judicial enforcement can involve many more claims, interests, and people than would have been involved in any adversarial proceedings. New written guidelines for federal and state courts should follow existing rules and statutes of general and particular applicability already operating in some American trial courts. As with pleading and discovery, new settlement conference guidelines should speak to differences between civil actions, including some distinctions between significant cases and routine cases and between civil cases based upon the amounts in controversy.

ADL

Ninth Circuit Opinion on Anti-Injunction Act

The Ninth Circuit issued an opinion last week on the All Writs Act exception to the Anti-Injunction Act. In Negrete v. Allianz Life Insurance Co. of North America, 2008 WL 1868993, the district court certified a nationwide RICO class a few months before other state and federal courts certified competing classes. Plaintiffs in a competing class initiated in the Minnesota District Court by the Minnesota Attorney General began mediation discussions with the condition that talks would include the possible settlement of other actions. Plaintiffs in the California district court requested that the court enjoin the negotiations.

"On March 19, 2007, the district court, without holding a hearing, issued an order nominally denying the application because it was "not authorized by the All Writs Act." How ever, the court went on to order:

Any discussions of a settlement that would affect any claims brought in this litigation, other than claims of an individual plaintiff or class member, must be conducted or authorized by plaintiffs' Co-Lead Counsel. Any proposed settlement that resolves, in whole or in part, the claims brought in this action shall first be subject to review and approval by the Court in this litigation."

The Ninth Circuit concluded that the quasi-injunction was inappropriate. Here’s an excerpt of its rationale:

Courts have held that the existence of advanced federal in personam litigation may, in some instances, permit an injunction in aid of jurisdiction. That is a fairly common theme. See In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 239 (3d Cir.2002) (MDL class action where class provisionally certified and settlement preliminarily approved); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1018, 1024-25 (9th Cir.1998) (class action settlement preliminarily approved and state court action would opt out a whole subclass); Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1201-03 (7th Cir.1996) (MDL case where a state proceeding would overturn the effect of a district court discovery order); Battle v. Liberty Nat'l Life Ins. Co., 877 F.2d 877, 880-81 (11th Cir.1989) (class action case had reached judgment stage and state court litigation would interfere with administration of post-judgment proceedings); In re Baldwin-United Corp., 770 F.2d 328, 337-38 (2d Cir.1985) (MDL class action where class certified, settlement agreements reached, and only district court approval of those remained); Carlough v. Amchem Prods., Inc., 10 F.3d 189, 195, 202-04 (3d Cir.1993) (class action where settlement imminent); Swann v. Charlotte-Mecklenburg Bd. of Educ., 501 F.2d 383, 383-84 (4th Cir.1974) (per curiam) (class action case had reached judgment and state court litigation would interfere with carrying out the terms of that judgment). 

But in less advanced cases, courts have been more chary about issuing injunctions, as, indeed, they should have been. For example, the Third Circuit has confronted an MDL action case where a state court was entertaining a settlement of a class action covering a class of General Motors truck owners, who alleged defective placement of fuel tanks, at the same time as an MDL class action on the same subject was before the district court. In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133, 137 (3d Cir.1998). The court of appeals pointed out that no settlement had yet been approved by the MDL court, no provisional settlement was in hand, and no conditional class certification was extant. Id. at 144-45. Therefore, the state court proceeding was not the kind of interference that could justify an injunction. The Second Circuit reached the same result in a similar, but more advanced, piece of litigation. There the district court was handling an MDL securities class action arising out of the collapse of WorldCom. See Ret. Sys., 386 F.3d at 421. The district court enjoined class action proceedings in an Alabama court arising out of the same collapse. Id. at 423. That case had been moving toward trial, and the district court enjoined it from proceeding until after there was a trial in the federal class action. Id. No class settlement in the MDL case was imminent, but the injunction was issued on the basis that district court trial dates should be protected. Id. at 428-29. The court of appeals declared that the district court"has no interest-no interest that can be vindicated by the exercise of the federal injunction power-in being the first court to hold a trial on the merits." Id. at 429. It, therefore, overturned the injunction. Id. at 431; see also Zurich Am. Ins. Co. v. Superior Court, 326 F.3d 816, 826 (7th Cir.2003) (reversing grant of injunction where proceedings insufficiently advanced).

Here, none of the considerations that have induced courts to issue injunctions despite the strictures of the Anti-Injunction Act was present. This was not an MDL case; discovery was not complete; no class settlement was imminent, in fact, as far as the record shows no serious settlement progress had been made; and, finally, there was no evidence of collusive procedures, reverse auction or otherwise, even assuming that the existence of those would justify an injunction of state proceedings.

ECB

Moss on Electronic Discovery: Separating the Wheat from the Chaff

Scott Moss (Colorado) has just posted an economic analysis on electronic discovery on SSRN entitled: "Litigation Discovery Cannot be Optimal but Could be Better: The Economics of Improving Discovery Timing in  the Digital Age." (Duke Law Review, forthcoming 2008).  Here is the abstract:

Cases are won and lost in discovery, yet discovery draws too little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes - which, unlike trials, occur in most cases. The growth of e-discovery - imprudent emails or lingering deleted files - makes cost issues increasingly salient, but the e-discovery rules just reiterate existing cost/benefit proportionality limits. Proportionality limits are topic of broad consensus among civil procedure scholars and economists, but this Article deems them impossible to apply effectively. Proportionality limits fail to curb discovery excess while also disallowing discovery meritorious cases need, resulting in bad cases dominating good ones. This Article acknowledges proportionality's flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons: how can courts compare discovery value and cost before parties gather the evidence? Like other arguments that procedural rulings are never truly separate from case merits, this Article notes how discovery has more probative value in the closest cases - yet case merits remain uncertain in discovery, when courts cannot yet examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts act as if all cases warrant similar discovery. In this pooling equilibrium, ruling the same on all cases in the pool, regardless of merit, is courts' best strategy but a sub-optimal one, yielding too much discovery in low-merit cases, too little in higher-merit ones. Thus, the quest for better discovery has disappointed not because of bad rules or decisions, but because courts and parties are stuck in a pooling equilibrium with information-timing circularity: optimal evidence-gathering requires merits analysis, which requires evidence-gathering.

One answer is to defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning pooling equilibria into separating equilibria. Summary judgment can be this separation: cases going to trial, post-summary judgment, likely have 50/50 odds - better than most. Costly evidence has more value in 50/50 cases, where juries struggle to reach verdicts, than in weaker or stronger cases. Noone yet has proposed post-summary judgment discovery to redress the costly discovery dilemma (summary judgment typically follows discovery), but high-cost evidence can be an exception: cases surviving summary judgment are close calls warranting more fact-gathering, so some costly discovery regularly denied now should be allowed after summary judgment. Thus, the existing debate is too focused on discovery quantity; it should focus more on discovery timing. Existing rules give courts discretion to use this proposal, but a new rule could minimize the risk of misusing the proposal to deny more discovery. This Article concludes by briefly noting how economic analyses must consider the details and information timing of the litigation process.

Electronic discovery is often critical in mass tort cases and judges have come up with some creative solutions such as sampling.  I'm not sure I buy the idea that judges can separate the wheat from the chaff before plaintiffs have developed their case, which requires discovery.  Nevertheless, Moss's insights are worth thinking about. 

ADL

The Chief on Law & Policy

Chief Justice John Roberts served as a moot court judge at Columbia last week.  One of the issues in the case was whether an issue class action could be certified.

The Chief Justice's questions to the students (as reported by Adam Liptak of the New York Times) may have given us some insights into his view of class actions:

“A class action is a dramatic departure from the normal rules of litigation,” he said. He asked one student whether the practical impact of allowing a class action was not merely to grant the plaintiff leverage in settlement talks.

Discussing a federal law that requires states to run medical programs “consistent with efficiency, economy and quality of care,” Chief Justice Roberts sounded exasperated.

“How in the world is a judge supposed to apply those terms — economy, efficiency?” he asked. “Those sound like legislative judgments.”

I wonder if this means that he espouses the "blackmail" theory of class actions.  (For an excellent refutation of that theory, see Charles Silver, "We're Scared to Death:" Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357 (2003) - you can also find a version of the same paper here on SSRN).

ADL

Richard Nagareda on Taylor v. Sturgell

Richard Nagareda (Vanderbilt) has recorded a SCOTUScast on Taylor v. Sturgell, the nonparty preclusion case argued before the United States Supreme Court last week.  Howard Erichson commented on the case last week in a post on this blog.

BGS

Grisham's Latest

What do mass tort scholars do in their down time?  ... Well, read a mass tort novel, of course.  John Grisham's latest book, The Appeal, involves a toxic tort of groundwater pollution that injures many in a Mississippi town -- sort of Grisham thriller meets Jonathan Harr's A Civil Action.  The plot steers off into pursuing issues of judicial elections, but along the way there are plenty of mass tort themes, involving David vs. Goliath plaintiff-defendant litigation, class actions, and the implications of a trial verdict for case inventories.  I'm in the middle and having fun, as I have reading Grisham since The Firm came out back in the early 90s.

For the last few years, I've been gradually assembling a "mass tort movie library" of DVDs, which I lend out to students in my mass tort litigation class, and I use a clip of the film version of A Civil Action in class.  I've been mulling over incorporating excerpts from novels in my class, as well -- Grisham's King of Torts also sounds many mass tort themes.  Part of the appeal of studying mass tort litigation is the variety of perspectives available -- not only substantive and procedural, but also factual and fictionalized.

BGS

Class Action Watch Issue

The Federalist Society has posted the March 2008 issue of Class Action Watch.  Articles include the following:

Cy Pres Settlements by Theodore H. Frank (AEI)

The Supreme Court Rejects "Scheme Liability" in Securities Class Actions by Larry Obhof (Kirkland & Ellis)

Dukes, et al. v. Wal-Mart Stores, Inc.: Ninth Circuit Affirms Largest Employment Discrimination Class in History by John Beisner, Evelyn Becker & Karl Thompson (all of O'Melveny & Myers)

The Problem of Class Action Tolling in Mass Tort Personal Injury Litigation by Jessica Davidson Miller & Geoffrey Wyatt (both of O'Melveny & Myers)

FACTA Truncation: Applicable to the Digital World? by Shawn J. Organ (Jones Day)

Silberblatt v. Morgan Stanley: Class Action Court Protects Unnamed Class Members by Jack Park (Spec. Asst. for Inspector Gen. for Corp. for Nat'l & Community Service)

"Reverse Bifurcation" Approach to Punitive Damages Trials in West Virgina by Mark A. Behrens & Christopher E. Appel (both of Shook Hardy)

BGS

Taylor v. Sturgell Oral Argument

The Supreme Court heard oral argument today in Taylor v. Sturgell, a fascinating case involving nonparty preclusion.  Having read the transcript of the oral argument, I'd be surprised if the Court affirmed, but I would not be surprised if the Court remanded to give the lower courts an opportunity to consider the issue of collusion.

Here's the case in a nutshell:  Greg Herrick filed a FOIA request for information about an antique aircraft.  When the request was rejected, he filed suit in the District of Wyoming, and lost.  Subsequently, Brent Taylor made a FOIA request for the same info.  When his request was rejected, he sued in the District of Columbia.  The district court and the D.C. Circuit held that Taylor was claim precluded.  Noting that Taylor was the director of an antique aircraft association of which Herrick was a member, and that they were represented by the same counsel, the D.C. Circuit held that Taylor was "virtually represented" by Herrick in the first suit.

Taylor argued that, with limited exceptions, a nonparty is not bound by a judgment.  The government and manufacturer argued that they should not have to relitigate the FOIA issue, given the close association between Herrick and Taylor.  Along with other proceduralists, I co-wrote an amicus brief supporting Taylor's position, emphasizing not only the integrity of the law of judgments, but also the law of joinder and representative litigation.  The law offers numerous ways to bind multiple persons to a judgment, but such joinder or representation must be accomplished ex ante and with appropriate procedural protections, not ex post through the backdoor of preclusion.

At today's oral argument, Justice Ginsburg's and Justice Scalia's questions repeatedly emphasized the individual nature of the FOIA right and the fact that Herrick's case was not collective litigation.  Justice Scalia brought up the apt comparison to class actions, although he made the error of emphasizing that individuals may withdraw from a class action (a point that should carry little or no weight in this case, because had the FOIA litigation been a class action, it would have been a Rule 23(b)(2) non-opt-out class action).  But Justice Ginsburg saved the day by pointing out that under Rule 23 any settlement must be approved by the judge.

When counsel for the government argued that preclusion is necessary in order to avoid vexatious FOIA litigation, Justice Scalia said, "Counsel, you have described for us a thousand-headed monster of litigation, and your proposal for a solution is to cut off one eyebrow. ... It seems to me that, you know, in order to cut off an eyebrow, I'm not willing to make a whole lot of incursion upon our traditional rules of who's bound by a lawsuit."

Mass tort litigation involves numerous plaintiffs with similar interests, often represented by the same counsel or lawyers working closely together.  A broad approach to nonparty preclusion could significantly affect the dynamics of such litigation.  Respondents' counsel in Taylor, however, made it clear that they were not seeking a broad rewriting of the rules of preclusion.  Justice Ginsburg got no serious resistance when she said, "[L]et's say you have a whole busload of people who get injured in the same accident.  Plaintiff one sues and loses.  Two sues and loses.  Three is not precluded.  Four is not precluded."

Some of the Justices seemed concerned that there may have been collusion between Herrick and Taylor, at least in the sense that Taylor may have been pursuing the FOIA case on behalf of Herrick after Herrick lost on his first try.  The Justices were clearly unwilling to reach a conclusion unsupported by the record (Justice Souter:  "In effect, you're asking us to infer a finding of fact, and we're not the trial court.").  But they were warmer to the possibility of remand.  Justice Ginsburg suggested, "It could be remanded.  It could be remanded with instructions that the collusion question is still open."  When Chief Justice Roberts asked petitioner's counsel on rebuttal whether the Court should remand for consideration of whether there was an agreement, counsel responded, "Yes.  The court could remand it and then the district court would have the discretion to allow the case to go forward as it saw fit."  I have to imagine that such a remand would be an appealing option to a number of the Justices, although if so, I hope it comes with a clear statement reaffirming the principle that nonparties are not bound by judgments except in very narrow circumstances.

HME

Third Circuit's Recent Preemption Ruling

In a recent case over Paxil and Zoloft, the Third Circuit held that plaintiffs’ failure to warn claims (about the risks of suicide) were preempted. The FDA explicitly refused to order the warnings. Consequently, Judge Solviter concluded that the FDA "actively monitored" the possible suicide risk and concluded that the warnings were "without scientific basis and would therefore be false and misleading." Here’s an excerpt of the Legal Intelligencer’s report:

But Sloviter, who was joined by visiting Judge Jane A. Restani of the U.S. Court of International Trade, emphasized that the ruling was a narrow one.

"Our holding is limited to circumstances in which the FDA has publicly rejected the need for a warning that plaintiffs argue state law requires," Sloviter wrote in Colacicco v. Apotex Inc.

In dissent, 3rd Circuit Judge Thomas L. Ambro said he would have allowed both cases to go forward.

"The FDA has for over three-quarters of a century viewed state tort law as complementary to its warning regulations. Only for the last two years has it claimed otherwise," Ambro wrote.

Ambro said the "sea change" in the FDA's position on pre-emption did not come in the form of a formal regulation that was subject to notice and comment, but in a "preamble" to a regulation. The majority, Ambro said, decided to defer to the FDA because the agency has expertise in deciding the "optimal warnings" drug labels should carry -- not too lax, not too alarmist -- and that "state tort lawsuits would disrupt this fine system."

But Ambro said there is "an important contrary view that has prevailed until recently: state tort law complements FDA provisions on drug warnings, in part by eliciting more information than the FDA would glean otherwise from pharmaceutical manufacturers."

That view, Ambro said, "has, I believe, the better argument in terms of legal doctrine on pre-emption, congressional intent and the history of state tort law alongside federal law."

The cases involved were Colaccicco v. Apotex, Inc. And McNellis v. Pfizer, Inc. Here’s a link to the Third Circuit’s Opinion.

ECB

RAND on Electronic Discovery

RAND's Institute for Civil Justice has released a report on electronic discovery: James M. Dertouzos et al., The Legal and Economic Implications of Electronic Discovery (2008).  Here's a description:

Pretrial discovery — the exchange of relevant information between litigants — is central to the American civil legal process. As computer technologies continue to develop, concerns have arisen that, because of the sheer volume of electronically stored information, requests for electronic discovery (e-discovery) can increase litigation costs, impose new risks on lawyers and their clients, and alter expectations about likely court outcomes. For example, concerns about e-discovery may cause businesses to alter the ways in which they track and store information, or they may make certain types of plaintiffs and defendants more likely to sue, settle out of court, or go to trial. This paper presents the results of an exploratory study to identify the most important legal and economic implications of e-discovery. The authors interviewed plaintiffs and defense attorneys as well as corporate information technology staff and in-house counsel, and they reviewed the current state of e-discovery law and procedure. They then developed a preliminary model to explore the range of plausible effects that e-discovery might have on case outcomes. After summarizing this research, the authors propose five studies that will evaluate how e-discovery affects and is affected by technology, costs, business practices, legal outcomes, and public policy.

BGS

Charleston Law Review Symposium Issue on Punitive Damages After Philip Morris v. Williams

Last September, Charleston Law School hosted a symposium entitled, Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams.  (See prior posts here and here.)  The resulting symposium issue of the Charleston Law Review has just been published.  Articles in the issue include the following:

Anthony Sebok, After Philip Morris v. Williams: What is Left of the "Single-Digit" Ratio?, 2 Chas. L. Rev. 287 (2008)

Anthony J. Franze, Clinging to Federalism: How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process, 2 Chas. L. Rev. 297 (2008).

Neil Vidmar & Matthew Wolfe, Fairness Through Guidance: Jury Instruction on Punitive Damages After Philip Morris v. Williams, 2 Chas. L. Rev. 307 (2008)

Christopher J. Robinette, Peace: A Public Purpose for Punitive Damages?, 2 Chas. L. Rev. 327 (2008).

Keith N. Hylton, Due Process and Punitive Damages: An Economic Approach, 2 Chas. L. Rev. 345 (2008)

Victor E. Schwartz & Christoper E. Appel, Putting the Cart Before the Horse: The Prejudicial Practice of A "Reverse Bifurcation" Approach to Punitive Damages, 2 Chas. L. Rev. 375 (2008)

Elizabeth J. Cabraser & Robert J. Nelson, Class Action Treatment of Punitive Damages Issues After Philip Morris v. Williams: We Can Get There From Here, 2 Chas. L. Rev. 407 (2008)

Byron G. Stier, Now It's Personal: Punishment and Mass Tort Litigation After Philip Morris v. Williams, 2 Chas. L. Rev. 433 (2008).

Michael L. Rustad, The Uncert-Worthiness of the Court's Unmaking of Punitive Damages, 2 Chas. L. Rev. 459 (2008)

Downloads of the articles via .pdf files are available at TortsProf Blog.

BGS

Pfizer Denied Discovery of JAMA Confidential Peer-Reviewer Comments in Celebrex and Bextra Litigation

As the Wall Street Journal reports -- see Pfizer Is Denied Access to JAMA Files, by Thomas M. Burton -- a magistrate judge in federal district court in Chicago has denied Pfizer's request to obtain confidential JAMA peer-reviewer comments in connection with the litigation involving Bextra and Celebrex.  Such peer-reviewer comments on a study can generally be valuable to defendants questioning a scientific study in connection with a scientific evidence challenge under Daubert, as well as for criticisms at trial if the Daubert evidentiary challenge fails.  Indeed, understanding peer-reviewer misgivings may be essential to placing in proper perspective the publication of a study in a prestigious scientific journal.  On the other hand, scientific journals may assert an interest in developing scientific publications without the specter of litigation-driven discovery at every turn.  Given the tremendous implications of the science underlying a mass tort for plaintiffs and defendants, I would be inclined to tread a middle ground -- allow limited discovery that vindicates the law's need for reliable scientific evidence, but does not unduly burden the medical journals in their important work.      

In an editorial in JAMA -- Preserving Confidentiality in the Peer Review Process -- Dr. DeAngelis and JAMA's counsel, Joseph Thornton, provide more details on the dispute and decision.  In addition, here's a related post on the dispute from Pharmalot, and another post from TortsProf Blog.  For more depth, take a look at the following article by Professor Bill Childs (Western New England): The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, Nebraska L. Rev. (2007).

BGS

Behrens, Sebok on Nagareda's Mass Torts in a World of Settlement

Mark Behrens of Shook, Hardy & Bacon has a short book review of Professor Richard Nagareda's Mass Torts in a World of Settlement in the Federalist Society's February issue of Engage.  Prior posts on Professor Nagareda's book are here (see interview below) and here.

For further views of Professor Nagareda's book, see also a September 2007 FindLaw column from Professor Anthony Sebok (Brooklyn), who will also be reviewing Professor Nagareda's book in a forthcoming issue of the Michigan Law Review.

BGS

Government Report Says U.S. Soldiers in Iraq Sickened at Bases With Questionable Water Supplied By Contractor

Article on cnn.com -- Troops sickened at Iraq bases using KBR water, by the Associated Press.  The story evokes memories of the Agent Orange class action litigation involving Vietnam Veterans suing for illnesses allegedly caused by exposure to the Agent Orange defoliant sprayed in Vietnam.  As with Agent Orange, which settled, any lawsuits by soldiers from Iraq would likely face a vigorous military-contractor defense.  Here's an excerpt from the article:

Dozens of U.S. troops in Iraq fell sick at bases using "unmonitored and potentially unsafe" water supplied by the military and a contractor once owned by Vice President Dick Cheney's former company, the Pentagon's internal watchdog says.

A report obtained by The Associated Press said soldiers experienced skin abscesses, cellulitis, skin infections, diarrhea and other illnesses after using discolored, smelly water for personal hygiene and laundry at five U.S. military sites in Iraq.

The Defense Department's inspector general's report, which could be released as early as Monday, found water quality problems between March 2004 and February 2006 at three sites run by contractor KBR Inc., and between January 2004 and December 2006 at two military-operated locations.

It was impossible to link the dirty water definitively to all the illnesses, according to the report. But it said KBR's water quality "was not maintained in accordance with field water sanitary standards" and the military-run sites "were not performing all required quality control tests."

BGS

The Law of Unintended Concequences: Warner Lambert v. Kent

The folks over at Drug and Device Law Blog make an excellent observation about the 4-4 decision in Warner-Lambert v. Kent.  Here's the idea:

Pharmaceutical litigation often results in masses of cases being filed.  When there are many cases that all raise common issues of fact or law, it may be duplicative for every federal court where such cases are filed to go through the discovery process or motions.  For example, should the CEO be deposed in litigation, thousands of times?  This would be onerous and wasteful.  Therefore there is a special panel of judges (the Multi-District Litigation Panel) which is statutorily empowered to collect all these cases and transfer them to a single court.  This panel is created pursuant to 28 US 1407 which states:

When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.

Beck/Hermann point out that since there is a Circuit split on the issue of whether fraud on the FDA claims can go forward, and since many pharmaceutical tort cases are consolidated under the auspices of the Multi District Litigation Panel, the MDL Panel's choice of transferee court will determine the substantive law applicable.  Here is quote from their post:

The court that receives those cases -- the "transferee" court -- will apply local federal circuit precedent to all pretrial rulings.  See In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C. Cir. 1987), and its progeny. Thus, if the MDL Panel chooses to centralize the cases in Cleveland, all Michigan plaintiffs automatically lose under controlling circuit law. But if the MDL Panel chooses to centralize those same cases in New York, Michigan plaintiffs do not automatically lose.

When the DC Circuit affirmed the In re Korean Air Lines Disaster ruling, then Judge Ruth Bader Ginsburg gave three reasons for allowing the transferee court's law to apply: (1) "[a]pplying divergent interpretations of the governing federal law to plaintiffs, depending solely upon where they initially filed suit, would surely reduce the efficiencies achievable through consolidated preparatory proceedings"; (2) "because there is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse circuit interpretations simultaneously is inherently self-contradictory"; and (3) the parties could always seek review by the Supreme Court for an authoritative and final interpretation.  See 829 F.2d 1171, 1176 (D.C. Cir. 1987).  That last condition, of course, is not met because the Supreme Court had the opportunity to decide and gave us a 4-4 non-decision.

But this case is not the last word, nor will it be.  Last year around this time, a court held that the law of the transferor court (that is, the court where the case came from) was binding with respect to the question of class certification because class certification is "not merely a pretrial issue" but instead is "inherently enmeshed with considerations of the trial."  "Neither party should be prejudiced in preparing for trial because the case was removed and transferred to another district in a different circuit." In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 241 F.R.D. 185  (S.D.N.Y. Feb 20, 2007).  That court then applied the transferor court's interpretation of the class action rule and certified the class.    

This issue really makes one appreciate the incredible importance of pre-trial proceedings and reminds us again of the trickiness of the substance/procedure distinction.  (This is why we Civil Procedure professors love to teach Erie).  MDL transfer is intended merely to make processing of cases easier, but it does also affect the merits.

What's to be done?  Beck/Hermann urge that the MDL Panel "be beyond reproach" and that the Supreme Court decide the issue for good.  I don't disagree with their suggestion, but I think the MDL Panel is placed in a terrible situation when the outcome of the case is based on transfer and is already known in advance of the transfer.  This leaves them in a position to decide the merits, really, and I don't think that is what the statute creating the MDL intended. 

I have another suggestion.  When faced with such a scenario, the MDL panel might consider transferring and centralizing the cases to several regional forums.  I suggest two forums.  Plaintiffs who filed within the regions covered by the preemption precedent would be consolidated in one court, plaintiffs who filed in the regions covered by the non-preemption precedent would be consolidated in another court.  This would not lead to duplicative discovery because all the cases in region 1 would be dismissed, and all the cases in region 2 would proceed.  This idea violates the principles behind (1) and (2) of then-Judge Ruth Bader  Ginsburg's  rationale, and raises an important question about the tension between the just and efficient conduct of actions in the federal courts.  Centralization is efficient, but is it just to allow the MDL Panel to choose which law applies through their transfer decision, which has to include other factors such as judicial experience, caseload, the spread of cases over the entire system, convenience of the parties in terms of the conduct of discovery and cost of litigation, etc.?     If the Supreme Court doesn't like this outcome, as Beck/Hermann point out, they can decide the issue once and for all.  But for the moment, it seems to me perhaps we can proceed with multiple centralized forums, rather than just one, and solve the problem without driving Article III judges crazy.

The reality is that region 1 cases (those that will be dismissed) will not be brought because the law is clear.   Beck/Hermann are concerned that the plaintiffs will forum shop and all the new cases will now be region 2 cases.  Point taken.  I think the idea that the MDL Panel's decision should reflect the disagreement, rather than effect it, is still right.

I have an article coming out in Tulane Law Review making such a proposal, which should be posted on SSRN soon, and would be interested in learning the thoughts of others about it.

  
ADL

New Malingerer Pyschological Test Used and Challenged in Personal-Injury Cases

Article in the Wall Street Journal -- Malingerer Test Roils Personal-Injury Law: 'Fake Bad Scale' Bars Real Victims, Its Critics Contend, by David Armstrong.  Here's an excerpt:

A test designed to expose fakers is roiling the field of personal-injury law, distressing plaintiffs and strengthening the hand of employers and insurers.

Proponents hail the true-or-false test as a valid way to identify people feigning pain, psychological symptoms or other ills to collect a payout. In hundreds of cases, expert witnesses have testified that the test provided evidence that plaintiffs were lying about their injuries, just as suggested by the test's colorful name: the Fake Bad Scale.

Use of the scale surged last year after publishers of one of the world's most venerable personality tests, the Minnesota Multiphasic Personality Inventory, endorsed the Fake Bad Scale and made it an official subset of the MMPI. According to a survey by St. Louis University, the Fake Bad Scale has been used by 75% of neuropsychologists, who regularly appear in court as expert witnesses.

But now some psychologists say the test is branding as liars too many people who have genuine symptoms. Some say it discriminates against women, too. In May, an American Psychological Association panel said there appeared to be a lack of good research supporting the test.

BGS

Second Edition of Mullenix's Mass Tort Litigation Casebook

Professor Linda Mullenix (Texas) is publishing a second edition of her seminal casebook, Mass Tort Litigation: Cases and Materials.  The first edition was published in 1996, and a supplement followed in 2000.  That's quite a while for such a fast-moving field as mass tort litigation, and those of us who teach with the Mullenix text (myself included) will no doubt be opening the arriving casebook box with a kind of Christmas-morning glee.  Indeed, comparing the changes of the two casebooks should provide an interesting history of the development of mass torts -- more on that when it arrives in May.  Here's the release from West publishing:

Mullenix's Mass Tort Litigation: Cases and Materials, Second Edition is publishing in May and will be available for Fall 2008 class adoptions. This edition is updated with materials relating to breast implant litigation, tobacco litigation, and medical device and pharmaceutical litigation, in addition to the seminal cases relating to Agent Orange, Dalkon Shield, DES, and asbestos litigation. The materials demonstrate that the core cases and materials relating to mass tort litigation still remain viable precedents after 25 years and that courts are still struggling to find solutions to the resolution of this complex litigation. The casebook is suitable for advanced courses in tort litigation, complex procedure, class action litigation, and dispute resolution offerings.

BGS

ABA Mass Torts Litigation Committee Winter 2008 Newsletter

The ABA Mass Torts Litigation Committee has posted its Winter 2008 newsletter, which includes the following articles:

Let Data Speak Equally to All: The Increasing Importance of Raw Data in Litigation and a Proposal for Principles Governing the Production, Protection, and Use of Raw Data in the Litigation Context, by Laura Ellsworth, Charles Moellenberg, and Neelie Simmons (all of Jones Day);

Don't Step on My Toes -- The Use of The Doctrine of Primary Jurisdiction as a "Defense" in Tort Litigation, by Katherine Winchester (Ice Miller);

Blogging 101: An Interview with Mark Herrmann and James Beck of the "Drug and Device Blog," interviewed by Eric Hudson (Butler Snow) and Harley Ratliff (Shook, Hardy); and

State ex. rel. Johnson & Johnson v. Karl: Is the Learned Intermediary Doctrine Outdated?, by John Camp and Gary Pappas (both of Carlton Fields).

BGS

Ted Frank Commentary on Exxon Valdez Oral Argument in U.S. Supreme Court

Ted Frank of the American Enterprise Institute comments in a Federalist Society SCOTUScast on oral argument in Exxon v. Baker.

BGS

AEI Panel on Federal Preemption and the Supreme Court

The American Enterprise Institute has posted the audio and video for its panel presentation on February 21 on Federal Preemption and the Supreme Court.  AEI's Ted Frank moderated the panel, which included Michael Greve (AEI), Catherine Sharkey (NYU), Daniel Troy (Sidley Austin), and Brian Wolfman (Public Citizen).

BGS

Nagareda on Preemption in Riegel

Professor Richard Nagareda (Vanderbilt) comments in a Federalist Society SCOTUScast on the recent U.S. Supreme Court preemption decision in Riegel v. Medtronic. 

BGS

Kentucky Mass Tort and Class Action Litigation Committee

The Kentucky Supreme Court has created a committee to explore possible improvements in the handling of mass tort litigation.  According to the press release, the committee "will determine whether current court rules for attorneys and judges provide adequate safeguards against unethical conduct and whether rule changes may provide guidance to attorneys and courts dealing with complex litigation."  The appointment comes in the wake of indictments against several Kentucky lawyers charged with stealing client funds in fen-phen settlements.  Here's the Torts Prof post about the committee, with a link to a news account.

I met with the Kentucky committee in Frankfort last month, and enjoyed the opportunity to discuss with them the challenges of mass tort litigation and some of the ways in which rules of procedure and rules of professional conduct may be modified or sensibly interpreted to accommodate the demands of mass disputes while respecting core values of justice and attorney-client relationships.  It will be interesting to see what proposals, if any, the committee generates after exploring the possibilities.  It will be equally interesting to see how many of those proposals are ultimately adopted.

HME

Geistfeld on Punitive Damages, Retribution, and Due Process

Professor Mark Geistfeld (NYU) has posted his paper, Punitive Damages, Retribution, and Due Process, 81 Southern Cal. L. Rev. 263 (2008), on the NELLCO Legal Scholarship Repository.  Here's the abstract:

Tort law provides awards of punitive damages for reasons of deterrence and retribution. In light of a recent decision by the U.S. Supreme Court in Phillip Morris USA v. Williams, the retributive rationale for punitive damages will inevitably come under heightened scrutiny. The case involves a punitive award of $79.5 million, which is ninety-seven times greater than the compensatory damages, making it constitutionally suspect for exceeding the single-digit ratio between punitive and ompensatory damages. The Court, though, has never addressed the institutional issue in a case involving serious bodily injury or death, and so Williams poses a number of new questions. How can compensatory damages provide an appropriate baseline for evaluating punitive damages in a case of wrongful death, given that monetary damages provide no compensation to a dead person? What is the appropriate baseline? Any future deterrence provided by a punitive award cannot protect the decedent’s tort right, and so the award must be justified exclusively in terms of retribution. Is retribution inherently subjective and arbitrary, unless constrained by some objective measure such as the single-digit ratio between the punitive and compensatory damages? Or is there some way to translate retribution into dollars? These questions are not limited to wrongful death cases and must be resolved by any court trying to determine whether a punitive award is unconstitutional for exceeding the single-digit ratio. These questions can all be answered once retribution is tied to the inherent limitations of compensatory damages, which yields a method for quantifying this form of punitive damages. Based on government data and methodology for quantifying the social cost of a premature death, this method shows why vindication of the decedent’s tort right in Williams justifies the $79.5 million punitive award. When formulated in this manner, vindictive damages satisfy the requirements of both substantive and procedural due process and provide a baseline for reviewing courts to determine whether any given punitive award, like one based on general deterrence, is excessive in violation of substantive due process. This method fully accounts for the reprehensibility factors that determine the constitutionality of a punitive award, while also explaining why the Court could defensibly rely on procedural due process to reverse and remand Williams back to state court.

BGS

Senate Compromise on Overhauling Consumer Product Safety Commission

Article in the Wall Street Journal -- Senate Forges Consumer-Safety Bill, by M.P. McQueen.  Here's an excerpt:

Following a rash of toy recalls last year, Senate Democratic and Republican leaders announced Friday that they reached a compromise on a bill to overhaul the Consumer Product Safety Commission.

The Senate is likely to vote this month on the bill, which would give the agency greater resources to remove unsafe products from the marketplace, but it would still have to be reconciled with a bill the House passed in December. Although industry groups have raised objections, the agreement appears to put CPSC-overhaul legislation back on track to clear Congress, especially in an election year when a crackdown on unsafe children's products has broad consumer appeal.

The bill would boost fines for safety violations to $20 million from the current $1.8 million, restore the commission to five members from three and require the safety agency to set up a database containing reports of injuries, illnesses or deaths from consumer products submitted by the public.

BGS

Widener Law School Symposium on Crimtorts

As I've previously posted, Widener Law School in Harrisburg is hosting a symposium entitled, Crimtorts, on Monday, February 25, 2008.  Here's the brochure: Download crimtorts_symposium_brochure.pdf  One change from the brochure -- Professor Mary Kate Kearney is unable to present, and instead, Professor Frank Vandall of Emory will present.  I will appear on the Applications Panel and discuss crimtorts and class actions. 

The symposium is being organized by Professor Christopher Robinette, who's also an editor of Torts Prof Blog.  The Widener Law Journal will subsequently publish papers from the symposium.

BGS   

Institute for Legal Reform Creates I Am Lawsuit Abuse.org

The Institute for Legal Reform, which is affiliated with the U.S. Chamber of Commerce, has created a new website, I Am Lawsuit Abuse.org, which features stories of people who claim they were victimized by lawsuits.

BGS

Behavioral Economics Research on Contingency Fees

Point of Law's Marie Gryphon has a post, Contentious Contingent Fees Research, that discusses recent behavioral economics research by Eyal Zamir and Ilana Ritov on the subject.

BGS

Kessler and Vladeck on FDA Preemption of Failure-to-Warn Claims

Former FDA commissioner David Kessler and Professor David Vladeck (Georgetown) have posted their article, A Critical Examination of the FDA’s Efforts to Preempt Failure-to-Warn Claims, Georgetown L. J. (forthcoming 2008).  Here's the abstract:

This article explores the legality and wisdom of the FDA’s effort to persuade courts to find most failure-to-warn claims preempted. The article first analyzes the FDA’s justifications for reversing its long-held views to the contrary and explains why the FDA’s position cannot be reconciled with its governing statute. The article then examines why the FDA’s position, if ultimately adopted by the courts, would undermine the incentives drug manufacturers have to change labeling to respond to newly-discovered risks. The background possibility of failure-to-warn litigation provides important incentives for drug companies to ensure that drug labels reflect accurate and up-to-date safety information. The article next explains why the agency’s view that it is capable of singlehandedly regulating the safety of drugs is unrealistic. The agency does not have the resources to perform the Herculean task of monitoring the performance of every drug on the market. Both the Institute of Medicine and the Government Accountability Office have explained the shortcomings in the FDA’s recent performance, and they express doubt that the FDA is in capable of facing an increasingly challenging future.

The article then explains how state damages litigation helps uncover and assess risks that are not apparent to the agency during a drug’s approval process, and why this “feedback loop” enables the agency to better do its job. FDA approval of drugs is based on clinical trials that involve, at most, a few thousand patients and last a year or so. These trials cannot detect risks that are relatively rare, affect vulnerable sub-populations, or have long latency periods. For this reason, most serious adverse effects do not become evident until a drug is used in larger population groups for periods in excess of one year. Time and again, failure-to-warn litigation has brought to light information that would not otherwise be available to the FDA, to doctors, to other health care providers, and to consumers. And failure-to-warn litigation often has preceded and clearly influenced FDA decisions to modify labeling, and, at times, to withdraw drugs from the market.

BGS

Cert Grant in Taylor v. Sturgell and Preclusion

Last Friday the Supreme Court granted cert in Taylor v. Sturgell, Case No. 07-371. The question presented is: "Can a party be precluded from bringing a claim, under a theory of ‘virtual representation,’ and thereby denied the due process right to a day in court, when the party had no legal relationship with any party to the previous litigation and did not receive notice of that litigation?" Although this issue has been contemplated in the class context by Phillips Petroleum Co. v. Shutts and Eisen, the Court’s decision in Taylor could affect nonclass aggregation even though the issue is presented in a FOIA context.

Here are links to the Supreme Court’s grant of cert., the D.C. Circuit Court’s opinion, Petition for Writ of Certiorari, Brief in Opposition of Cert, Brief in Opposition of Cert (United States), and Petitioner’s Reply.  Thanks to SCOTUSblog for the tip.

ECB

Registration for Southwestern Law School Asbestos Symposium

On Friday, January 18, 2008, Southwestern Law School is hosting a symposium entitled, Perspectives on Asbestos Litigation.   Here's the press release, and brochure: Download southwestern_law_school_asbestos_symposium_brochure.pdf  For further information about the conference, see my prior posts here and here.  Attendees may register in advance by contacting the Student Affairs Office of Southwestern Law School at (213) 738-6716.  We look forward  to an engaging and informative day with a remarkable slate of speakers, and hope you will be able to join us.

BGS

What Happens to Class Actions Denied Certification?

In In re Bridgestone/Firestone Products Liability Litigation, 333 F.3d 763 (7th Cir. 2003) (Bridgestone/Firestone II), the 7th Circuit denied certification of a nationwide class action and held that this decision was binding -- that is, absent class members could not refile this national class action in another court to obtain certification.

What happened next?  You might predict nothing. But that is not the case.  Instead, the litigation was settled in state court in Beaumont Texas.  You can see a short description in this article that appeared in the Texas Lawyer, reprinted in Law.com.  The unpublished opinion approving the settlement can be found on Westlaw: Shields on behalf of herself and all others similarly situated v. Bridgestone/Firestone, 2004 WL 546883 (Dist. Ct. Tx. 2004).

There are a lot of ways to read this chain of events.  Consider the following. The Class Action Fairness Act (CAFA) (which was passed after the events described above) was supposed to be responsive to concerns about certain state courts granting certification of class actions with minimal oversight.  It purported to solve this problem by giving jurisdiction to the federal courts of class actions over a certain size.  But when plaintiffs and defendants are both seeking certification, jurisdictional solutions like CAFA are unavailing because nobody is going to remove the case to federal court.  So does Bridgestone/Firestone II have more bite after CAFA?      

Addendum:  Since Beaumont is sometimes referred to as a "judicial hellhole", this article by Adam Liptak of the NY Times might be of interest (h/t TortsProf Blog).  Liptak analyzes a new report by the American Tort Reform Association claiming to "rank" judicial hellholes, albeit not empirically. 

“We have never claimed to be an empirical study,” said Darren McKinney, a spokesman for the association. “It’s not a batting average or a slugging percentage. It’s no more or less subjective than what appears in The New York Times."

If they actually did an empirical study, that would be worth reading.  The use of anecdotes in policy analysis is extremely misleading.  Not necessarily more misleading than the abuse of statistics can be, but perhaps less amenable to reasoned counter-argument and, to the extent that is true, more pernicious as a basis for policy making.  My favorite example of the moment of this problem is jury verdicts, which are so often reported as extraordinarily and perhaps offensively large.  But in fact studies consistently show that civil juries and judges agree approximately 80% of the time.  When they disagree, they split more or less evenly in favor of defendants and plaintiffs.  For more on this see Neil Vidmar and Valerie P. Hans' new book American Juries: The Verdict, a follow up to their excellent Judging the Jury, which presented the data in a very balanced and thoughtful way.

ADL

Perspectives on Asbestos Litigation Symposium

As I previously mentioned, Southwestern Law School is hosting a symposium entitled, "Perspectives on Asbestos Litigation," on Friday, January 18, 2008.  Here is a copy of the brochure Download lr_perspectiveinasbestoslitigation.pdf, which lists the exceptional speakers and panels that will occur throughout the day.  Hope you can join us.  We're overjoyed at the remarkable speakers who have agreed to participate.

BGS

Judge Weinstein's Numerous Mass Torts & The "Related Case" Designation by Plaintiffs

Point of Law flags a recent story in the New York Sun --