Wednesday, March 12, 2014
Hilary Stout of the New York Times reports in a piece today called "Lawyers Prepare for GM Suits with Novel Strategies." The issue may be not just products liability, but fraud in the working out of the GM Bankruptcy.
Sunday, December 15, 2013
Tuesday, November 26, 2013
The Wall Street Journal has an article on the ongoing asbestos cleanup by W.R. Grace in Libby, Montana: In Montana Town, a Shut Mine Leaves an Open Wound, by Dionne Searcey. The Journali also has a related slideshow. The cost of the cleanup has so far been approximately $400 million.
Tuesday, November 19, 2013
Johnson & Johnson has agreed to terms for settling hip implant claims, according to multiple news reports. The New York Times article reports that under the agreement, J&J "will pay some $2.475 billion in compensation to an estimated 8,000 patients who have been forced to have the all-metal artificial hip removed and replaced with another device." The article states that a typical claimant settlement, before legal fees, would be about $250,000 plus all medical costs. The article also states that the deal requires the participation of 94 percent of eligible claimants.
The lawsuits addressed by this settlement involve the Articular Surface Replacement, or A.S.R., a product of the DePuy Orthopaedics division of J&J. A couple of news sources reported a settlement of this litigation six days ago but without confirmation from defendants or plaintiffs. Today's reports come on the heels of a hearing in the multidistrict litigation (MDL 2197) before Judge David Katz in the Northern District of Ohio.
Update: For DePuy's and J&J's press release about the settlement program, see here and here. For the settlement website, see here. For an overview of the settlement terms, including settlement eligibility, settlement amounts, and deadlines, see here.
Wednesday, November 13, 2013
The New York Times and Bloomberg are reporting that Johnson & Johnson has agreed to settlement terms to resolve thousands of DePuy metal hip implant claims. According to the Bloomberg article, J&J Said to Reach $4 Billion Deal to Settle Hip Lawsuits, and the New York Times article, Johnson & Johnson Said to Agree to $4 Billion Settlement Over Hip Implants, the deal would provide about $300,000 to $350,000 in compensation for each claimant who underwent surgery to replace the DePuy hip implant, which could be as many as 8000 cases. The amount for each claimant would depend on age, medical condition, and other factors. According to the articles, the settlement has not been formally announced.
The Depuy hip implant cases are pending in Multidistrict Litigation (MDL 2197) before Judge David Katz in the Northern District of Ohio, as well as in state courts in Ohio, California, and New Jersey. Two cases have gone to trial, with one plaintiff victory and one for the defense. Seven more trials are scheduled. This would be the largest settlement ever for medical device litigation, and one of the largest mass tort settlements.
Update: See here for Nov. 19 info.
Friday, October 25, 2013
According to the New York Times, the jury had also determined that Toyota had acted with "reckless disregard" and was about to begin deliberations on punitive damages when the settlement was announced. The New York Times article also appropriately emphasizes that the case is noteworthy because plaintiffs' tried their claims of electronic throttle control problems.
Though the New York Times article notes the ages of the plaintiff driver was 82 (the Los Angeles Times says she was 76), the New York Times article does not note that there have been in the past been particular concerns of pedal misapplication by older drivers, and the article does not reference a government report that found no problems in Toyota's electronic throttle control system. According to CNNMoney, Toyota apparently argued that the plaintiff in Oklahoma case hit the gas, rather than the brake. In response, plaintiffs pointed to long skid marks on the road, suggesting the driver was hitting the brake. One wonders if the event data recorder in this car might have shed more light on the issue. Toyota would certainly want to avoid having juries deciding unintended acceleration cases based on the believability of the testimony of a driver who claims to have hit the brake, rather than the accelerator. If Toyota is unable to exclude plaintiffs' proferred expert testimony of electronic throttle control defect on the grounds that such testimony is not scientifically reliable, then Toyota should also be concerned that the jury may be unable to grasp the arcane details of software code design. I'm reminded of the line by Robert Duvall's character in the film, A Civil Action, depicting the Woburn water contamination case; waiting for a jury decision, his character opines, "[I]t's not going to have anything to do with dates or groundwater measurements or any of that crap, which nobody can understand anyway. It's going to come down to people like it always does."
Friday, October 11, 2013
Defendants in the moldy washers cases have filed cert petitions once again after the 6th and 7th Circuits reinstated those liability only (or issue) class actions. You can find the briefs here and here.
It doesn't make sense for the Supreme Court to grant cert, but stranger things have happened.
Why don't I think the Court should grant cert? Commonality is clear, there aren't real damages issues because its an issue class action and the circuits are coming together on the question of issue class actions and their parameters (coalescing around the ALI proposals and the Manual on Complex Litigation) and these are squarely in the field where class actions are most useful - consumer claims. In other words, there's nothing adventuresome here for the Court to consider.
For more defense side links with a different point of view see the Volokh Conspiracy.
Thursday, September 5, 2013
Wednesday, September 4, 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.
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).
Sunday, July 21, 2013
Khoury, Menard & Redko on the Role of Canadian Private Law in the Control of Risks Associated with Tobacco Smoking
Professors Lara Khoury and Marie-Eve Couture-Ménard (McGill), and Olga Redko (LL.B./B.C.L. Candidate, McGill) have posted to SSRN their article, The Role of Private Law in the Control of Risks Associated with Tobacco Smoking: The Canadian Experience, 39 Am. J. L., Med. & Ethics 442 (2013). Here's the abstract:
Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, this text tackles Canada’s recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada’s provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. The authors address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.
Wednesday, March 20, 2013
SCOTUS Oral Argument in Mutual Pharm. Co. v. Bartlett: Generic Pharmaceutical Manufacturers' Potential Immunity from Suit
Wednesday, January 30, 2013
CNN.com has a photo essay by Hiroko Tanaka showing deformed Vietnamese children whose conditions may stem from Agent Orange herbicide sprayed by the United States during the Vietnamese War. The story accompanying the photos discusses the difficulties in tracing causation. For more on the diseases potentially caused by Agent Orange, see the U.S. Department of Veteran Affairs' webpage on Veterans' Diseases Associated with Agent Orange.
Should scholars be thinking about inter-generational mass torts as a distinct subfield, perhaps not only including Agent Orange, but also DES? Will increasingly global mass tort litigation enable new claims based on the spraying of Agent Orange decades ago?
Monday, January 21, 2013
Corporate Counsel has a short piece, Crafting a Defense in Food-Labeling Class Actions, by O'Melveny's Kelsey Larson and Carlos Lazatin.
Skadden has issued a useful analysis of upcoming cases to watch and potential developments for 2013 in class actions and product liability. The analysis includes contributes by Skadden's John Beisner, J. Russell Jackson, and Jessica Miller.
Wednesday, October 17, 2012
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.
Monday, October 15, 2012
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.
Saturday, October 13, 2012
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?
Friday, October 12, 2012
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.
Saturday, October 6, 2012
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!