Tuesday, January 31, 2012
Marketing-research company Acritas has released the results of its client-interview-based study of top law-firm brands, according to AmLaw Daily. The firms most likely to be considered for major litigation were Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; Jones Day; Gibson, Dunn & Crutcher; and Sidley Austin. All have active mass tort or products liability practices.
A particular congratulations to my former firm colleagues at Skadden and Jones Day, which placed #1 and #2 in the overall ranking of leading U.S. law firm brands.
Daniel Klerman (USC) has posted to SSRN his article, Personal Jurisdiction and Products Liability: An Economic Analysis. Here is the abstract:
This article is the first sustained economic analysis of personal jurisdiction. It argues that plaintiffs should be able to sue where they purchased a product which caused injury. Such a rule allows manufacturers to set prices which take into account the quality of the forum state’s courts. If the courts are biased against out-of-state corporations, have overly generous judges or juries, or apply substantive law which is excessively pro-consumer, manufacturers can, through contracts with distributors and retailers, charge a higher price to consumers in that state. This prevents judges and juries from engaging in inter-state redistribution and gives states an incentive to provide efficient substantive rules and adjudicative institutions. In contrast, a rule which required suit in a place more fully under the control of the defendant – such as the place of manufacture or the location of the distributor – would encourage manufacturers to select inefficiently pro-defendant jurisdictions for their activities. Because consumers are unlikely to know where products are manufactured or distributed and are unlikely to be able to evaluate the quality of the law in those states, it is implausible to think that the market will give manufacturers incentives to locate their jurisdiction-triggering activities in states with efficient laws and institutions. This analysis is particularly important, because the Supreme Court has recently deadlocked on personal jurisdiction in product liability cases.
Sunday, January 29, 2012
According to this article from CNN, French authorities have arrested Jean-Claude Mas, the founder of Poly Implant Protheses (PIP), in connection with alleged manslaughter and involuntary harm to a woman who died from cancer and had PIP breast implants. The article notes that 300,000 women in 65 countries received PIP breast implants, and that questions have been raised about the use of non-medical-grade silicon and PIP went bankrupt in late 2010.
The PIP breast-implants controversy may present an opportunity to observe non-U.S.-style mechanisms for what here would likely have been a mass tort litigation. Since the PIP breast implants were not permitted to be sold in the U.S., litigation may be concentrated abroad. In general, my sense is that the European approach is more reliant on criminal law than tort for deterrence, compensatory damages are limited because of the comparatively extensive governmental social insurance, punitive damages are unavailable, and class actions are traditionally not embraced (though class actions appear to be on the rise globally -- see, e.g., the Stanford Global Class Actions Exchange).
Interestingly, according to the article, one French woman who received PIP breast implants said, "Too bad we do not have a justice system like they do in the United States which allows the accumulation of penalties...because the small punishment he will receive for what he did to 300,000 to 400,000 women, is not much compared to what we have suffered because of him."
(H/t to my Mass Tort Litigation student Abigail Anderson for sending me the CNN story.)
Tuesday, January 17, 2012
American Lawyer has put together a list of most-appearing law firms over the past 10 years of its rankings for Litigation Department of the Year. Several firms on the list are cited for past awards for practice-area expertise in products liability. Here are those firms' rankings places in the overall Litigation Power Rankings AmLaw list (counting the firm with highest score as #1):
#3 Jones Day
#11 Shook, Hardy
#14 (tied) Reed, Smith
#14 (tied) Skadden
#19 King & Spalding
I practiced at both Jones Day and Skadden, and have worked with lawyers from Shook, Hardy; Reed Smith; King & Spalding; and Dechert. All are excellent.
Sunday, January 15, 2012
California Supreme Court Limits Certain Manufacturers' Asbestos Liability in O'Neil, Describes Navy's Conduct Leading to Asbestos Injury for Service Members
In O'Neil v. Crane Co., the California Supreme Court this past week rejected asbestos liability for manufacturers whose products are added by third parties to other products that contain asbestos. No. S177401, slip op. (Cal. Jan. 12, 2012) Download O'Neil v. Crane Co_Cal Supreme Court_2012. The plaintiffs had argued that the defendants should be held liable because of the foreseeability that their products would be combined with other asbestos-containing products to which plaintiff was exposed, but in its opinion the Court highlighted that the defendant's product did not require asbestos-containing products and in fact could have been with used in combination with non-asbestos-containing products. Id. at 1, 12.
In its analysis, the opinion quotes Professor Alan Calnan's and my introductory asbestos article for the 2008 asbestos symposium at Southwestern Law School that Professor Calnan and I co-chaired, and at which co-blog editor Howard Erichson also spoke. Id. at 17 n. 19 (noting that "[s]ome commentators have observed that, due to the bankruptcies of...major suppliers of asbestos-containing products, asbestos personal injury litigants have shifted their focus in the past decade to 'ever-more peripheral defendants'"); Download Calnan & Stier_Perspectives on Asbestos Litigation_Overview and Preview_2008.
The facts in O'Neil underscore the federal government's role in asbestos injury to those in military service. From 1965 to 1967, plaintiff O'Neil served in the boiler room on the USS Oriskany, a Navy aircraft carrier authorized in 1942 and launched in 1945. Id. at 5. The Court notes that "[a]s early as 1922, the Navy was aware that airborne asbestos could potentially cause lung diseases," and "[i]ts industrial hygienists conducted studies on the health effects of asbestos exposure from the prewar period until well into the 1960s." Id. Nevertheless, the "Navy preferred asbestos over other types of insulating materials because it was lightweight, strong, and effective"; "Navy specifications required the use of asbestos-containing insulation"; and the Navy even ordered the conservation of asbestos in 1942 for the war effort. Id. at 2-3. Even if asbestos was beneficial militarily, the Navy might still have taken safety precautions to protect seamen. But as the Court notes, "the Navy did not warn seamen about the hazards of working with asbestos-containing materials and did not advise them to wear respirators or take other precautions during dusty work." Id. at 5-6.
The Navy is immune from suit because of the discretionary function exception to waivers of sovereign immunity. Id. at 6 (citing Collins v. Plant Insulation Co., 110 Cal. Rptr. 3d 241 (Cal. Ct. App. 2010), and Sea-Land Service, Inc. v. United States, 919 F.2d 888, 892-93 (3d Cir. 1990)). But through the Department of Veterans Affairs, the federal government does provide healthcare benefits, disability compensation, and dependency and indemnity compensation for veterans whose death stems from a service-related injury or disease, and has information specifically tailored to servicemen exposed to asbestos. See Dep't of Veterans Affairs, Occupational and Environmental Exposures: Asbestos. Removing such claims from litigation may be well-advised for the Navy, but one wonders if the apparently small and rigidly determined amounts of compensation by the VA offered are consistent with a government that also fully funds the 9/11 Victims Compensation Fund and demands a $20 billion Gulf Coast Claims Claims Facility from BP. To what degree has the low compensation offered by the federal government for its asbestos-related wrongs led to questionable claims against manufacturers, and the flooding of the courts with lawsuits?
Thursday, October 20, 2011
BNA reports that a set of cases (one trial, two plaintiffs) reached a defense verdict in the Levaquin pharma litigation. Beare v. Johnson & Johnson, N.J. Super. Ct. Law Div., No. ATL-L-196-10, verdict 10/14/11; Gaffney v. Johnson & Johnson, N.J. Super. Ct. Law Div., No. ATL-L-4551-09, verdict 10/14/11). The cases are consolidated before Judge Carol Higbee of New Jersey, who also oversaw the New Jersey Vioxx litigation.
The allegations are the the manufacturer of the antibiotic did not provide adequate warnings of its potential to cause tendon injuries. There are six more bellwether cases to go. According to BNA there are approximately 1,900 Levaquin cases before Judge Higbee.
I don't have information about how the bellwether cases were picked or why eight is the number. For an analysis of how judges can do a more rigorous job of using bellwether trials to promote case resolution and equality among litigants, see my latest paper: The Case for "Trial by Formula."
Monday, October 10, 2011
Today's Wall Street Journal Law Blog has an update on the state and federal Toyota acceleration cases. California Superior Court Judge Anthony Mohr has penciled in bellwether trials to begin in April of 2012, but Judge Selna, who is presiding over the federal MDL, estimates that bellwether trials will not begin there until February 2013. Likewise, plaintiffs' attorneys litigating before Judge Robert Schaffer in Texas suspect that they too will not try a case until 2013.
Thursday, September 29, 2011
On this Monday, October 3, Susan Saladoff, the Director and Producer of the HBO film, Hot Coffee: Is Justice Being Served?, will speak at Southwestern Law School in Los Angeles, as part of Southwestern's Treusch Public Service Lecture Series. Prominent plaintiffs' attorney and Southwestern alum Brian Panish will also offer commentary. The film will be shown at 6:00 p.m., followed by the presentations at 7:30 p.m. and a reception afterwards. The event is free, but parking is $8. Space is limited, and an RSVP is necessary to attend; RSVP to firstname.lastname@example.org or 213-738-6710. Here is the flyer, and here is additional information about the event and lecture series.
Thursday, August 25, 2011
RAND's Institute for Civil Justice last week released its report, Asbestos Bankruptcy Trusts and Tort Compensation, by Lloyd Dixon and Geoffrey McGovern. Here's the summary:
Payments by asbestos bankruptcy trusts have played an increasingly important role in compensating asbestos injuries and have become a matter of contention between plaintiff and defense attorneys. At issue is how tort cases take into consideration compensation paid by trusts and the evidence submitted in trust claim forms. This monograph examines how such evidence and compensation are addressed by state laws and considered during court proceedings. It also examines how the establishment of the trusts potentially affects plaintiff compensation from trusts and the tort system combined, payments by defendants that remain solvent, and the compensation available to future, as compared to current, plaintiffs. The authors find that the potential effects of trusts' replacement of once-solvent defendants are very different in states with joint-and-several liability than in states with several liability. In states with joint-and-several liability, total plaintiff compensation should not change. In several-liability states, the replacement of once-solvent defendants by trusts can cause total plaintiff compensation to increase, decrease, or remain unchanged. The findings underscore the importance of information on plaintiff exposure to the products and practices of the bankrupt firms in determining the trusts' effects on plaintiff compensation and on payments by defendants that remain solvent.
RAND also published the shorter Research Brief, Bankruptcy Trusts, Asbestos Compensation, and the Courts, by the same authors.
Monday, June 27, 2011
The bottom line: no revolution in the doctrine of personal jurisdiction - its as messy as ever. I have really enjoyed reading the decisions, however, and am looking forward to teaching them. Goodyear is a particularly masterful opinion in terms of clear and concise writing.
Sunday, April 3, 2011
With the Supreme Court hearing oral arguments in Wal-Mart Stores, Inc. v. Dukes last Tuesday, there's a good bit of focus from around the web on the individualized hearings aspect of Randall v. Rolls-Royce Corp., a Seventh Circuit opinion decided on March 30, 2011. In Randall, Judge Posner affirmed the denial of class certification for a Title VII and Equal Pay class action because plaintiffs' were inadequately represented and because backpay would require individualized hearings.
What was most interesting to me about the case, however, was its tie-in to Smith v. Bayer Corp., which is still pending before the Supreme Court. Recall that Smith v. Bayer Corp. presents the question of whether to afford preclusive effect to a federal court's decision not to certify a class.
In Smith v. Bayer, I found two things troubling about the Eighth Circuit's opinion below (In re Baycol Products Liability Litigation). First, the appellate court suggested that plaintiffs should've intervened in the first suit to preserve their right to appeal, but, because the class was never certified, no notice was ever sent out to the class members. How should the plaintiffs have known to intervene without any formal notice that the lawsuit was pending?
Second, although the class was never certified, the appellate court nevertheless claimed that the plaintiffs were adequately represented. This is odd. Parties can be bound to a decision when they were parties to the previous suit, in privity with those parties, or were adequately represented. Putative class members are generally not considered parties to a suit until the class has been certified; here, the plaintiffs in the second suit were not the named plaintiffs in the first suit.
Similarly, it's hard to see how the parties in the second suit were adequately represented in the first suit. Can a court really conclude that a putative class was adequately represented when it chooses not to certify the class and it's the certification decision that operates to legitimize the actions of the class representatives and class counsel to act on behalf of the class? This also raises personal jurisdiction questions. Following the rationale from the Supreme Court's opinion on personal jurisdiction in Phillips Petroleum v. Shutts, it's hard to see how the second plaintiffs would be bound by the federal court's decision not to certify the class. In Shutts, the court likened the failure to opt out of a (b)(3) class to consent to jurisdiction. Courts have long held that plaintiffs consent to personal jurisdiction by submitting their claims to the court. So, by failing to opt out, the plaintiffs effectively "consented." But in the Baycol litigation, there was no certification, thus no chance to opt-out, thus no consent. From that, it would seem that there was no personal jurisdiction (one of the questions certified in Smith v. Bayer). Likewise, this seems to put us quite close to the doctrine of virtual representation that the Supreme Court struck down in Taylor v. Sturgell.
The logical question that follows shows just how slippery the Eighth Circuit's reasoning was in In re Baycol and it's also the tie-in to the Seventh Circuit's opinion in Rolls-Royce: What is the preclusive effect of a decision not to certify the class when class counsel is incompetent? Can a court really say that the class was adequately represented after it explicitly finds that adequacy isn't met?
The Seventh Circuit in Rolls-Royce took great pains to explain how plaintiffs' counsel dropped the ball, picked poor class representatives, and did not diligently pursue the case. Should this effort and the resulting decision not to certify the class really preclude subsequent attorneys from trying to certify a similar class? Granted, the district court in Rolls-Royce also granted summary judgment to the defendants, so these circumstances are a bit different, but it doesn't take much imagination to see the harm that could result from the Eighth Circuit's reasoning.
Friday, March 25, 2011
S. Todd Brown (Buffalo) has posted a paper entitled The Market for Specious Claims on SSRN. It promises to be an interesting application of the adverse selection problem to our favorite subject here at the Mass Tort Litigation Blog! Here is the abstract:
Few problems are more disruptive to the efficient operation of comprehensive mass tort settlements than over-subscription, which, at times, appears to be fueled primarily by specious claims. In settlements with opt out rights, a flood of claims can generate a market for lemons, with the weakest claims submitting to the settlement and the strongest opting out and seeking recovery at trial or in private settlement. In binding settlements, they may result in a commons problem, requiring dramatic reductions in payment that effectively transfer recoveries from those with intrinsically strong claims to those with weak claims.
This Article evaluates the history of three mass torts where specious claim practices were uncovered and identifies common themes that reflect broader lessons about the potential for over-subscription. In particular, although commentators often focus on the incentives that drive claim recruiting, this Article explains that over-subscription has its origins in claim development incentives, which may be distorted by fixed settlement criteria and encourage practices that lend themselves to specious claim filings. This dynamic is particularly likely to generate specious claim markets for low or negative expected value claims. Moreover, the manner in which this process unfolds presents special difficulties for ethical enforcement and deterrence, suggesting that other mechanisms for controlling specious claim markets may be necessary.
Monday, January 24, 2011
Judge Amon in the Eastern District of New York last week dismissed plaintiffs' medical monitoring claim in a proposed tobacco class action. Caronia v. Philip Morris USA, Inc., No. 06-CV-224 (E.D.N.Y. Jan. 13, 2011). Here's the decision.
Thursday, January 13, 2011
Southwestern Law School, in collaboration with the University of British Columbia (UBC) Law Faculty and the International Centre for Criminal Law Reform and Criminal Justice Policy, will host a four-week Summer Law Program in Vancouver, British Columbia, Canada, from May 29 to June 29, 2011. In its 19th year, the program draws upon the collegial relationship between UBC and Southwestern, and offers a variety of academic and social experiences through (1) courses taught by prominent U.S. and Canadian law professors; (2) Distinguished Guest Lecturer, the Honorable Justice Rosalie Silberman Abella of the Supreme Court of Canada; (3) Midday Lecture Series presented by leading international scholars; (4) a part-time externship program; and (5) field excursions to local courts and other legal agencies. Here is the brochure.
I look forward to teaching a course on Global Tort Litigation in the Vancouver program this summer. Here's the course description:
This course will examine tort and civil procedure issues arising in global tort litigation, with particular focus on mass tort litigation spanning multiple countries. Subjects will include comparative approaches to liability for defective products, responses to terrorism, governmental liability, class actions, attorneys’ fees, and civil litigation generally. The course will also discuss crisis management. Particular attention will be given to litigation pertaining to the 9/11 terrorist attacks, BP Gulf oil spill, Toyota automobile unintended acceleration, Agent Orange defoliant, Vioxx drug, Dalkon Shield intrauterine device, and DBCP pesticide.
Other professors teaching in the Vancouver summer program include Linda Carter (McGeorge), Bruce MacDougall (UBC), Caleb Mason (Southwestern), and Hari Osofsky (Minnesota). Professors Gowri Ramachandran and Caleb Mason (both of Southwestern) are co-directors of the program.
Monday, November 22, 2010
The family who lost a son and granddaughter in the accident has come together with the man driving the Toyota to file a suit against Toyota for unintended acceleration. Jan Crawford of CBS has the story.
Sunday, November 21, 2010
Merck has won the second of three bellwether trials on Fosamax, Graves v. Merck & Co., 1:06-cv-05513 (S.D.N.Y.). Judith Graves, a Florida resident, sued the company and alleged that Fosamax (an osteoporosis drug) caused her jawbone to deteriorate. The jury asked the judge for the date of the first report from which Merck could have known of an association between Fosamax and jawbone problems and found that the report appeared six months after the plaintiff's problems started. Accordingly, jurors might've decided that Merck couldn't have known about the risks in time to warn the plaintiff.
Merck faces more than 1,500 claims in federal and state courts alleging various defects in Fosamax. So far it has won two of the three cases that have gone to a jury trial; the third awarded damages of $8 million to the plaintiff, which was reduced to $1.5 million.
Tuesday, October 12, 2010
Barry Meier of the NYTimes reports. The issue is whether the plaintiff can bring products liability suits or whether they must bring the suit only in the vaccine court, created by the 1986 National Childhood Vaccine Injury Act.
This case concerns a woman who suffered seizures as a result of a DPT vaccine administered when she was a baby and has resultant developmental problems. But there are many parents of children with autism who believe there is a link between vaccines and autism and would like to bring their cases outside of the adminsitrative system set up by the Act.
Thomas Burke, a political scientist at Wellesley College, has written on this topic. Click here for his website.
Thursday, October 7, 2010
The Supreme Court granted cert in yet another class action case (Smith v. Bayer Corp., No. 09-1205) to determine whether a federal judge can enjoin plaintiffs from bringing an economic injury class action in a state court after a federal court declined to certify the class. The Anti-Injunction Act, 28 U.S.C. 2283, provides that, subject to three important exceptions, a federal court may not grant an injunction to stay proceedings in state courts. Those exceptions include where Congress expressly authorizes the injunction, where it's in necessary aid of the federal courts jurisdiction, or to protect and effectuate federal judgements. Should one of the exceptions apply, the All Writs Act provides the positive authority for federal courts to enjoin state court proceedings.
Some of the most famous class action injunction cases to date include:
(1) the Third Circuit's In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, a 1998 case in which the Third Circuit refused to enjoin a Louisiana state court from certifying and settling a class where the Third Circuit had previously reversed the finding that the settlement was fair;
(2) the Fifth Circuit's decision in In re Corrugated Container Antitrust Litigation, where the Fifth Circuit approved the use of two exceptions in the Anti-Injunction Act to prevent a group of South Carolina plaintiffs from certifying similar antitrust claims in South Carolina because they attempted to escape the preclusive effect of a federal-court judgment approving the class settlement; and
(3) Judge Weinstein's opinion in In re Joint Eastern and Southern District Asbestos Litigation in which he invoked the exceptions to effectuate a limited fund class action settlement under Rule 23(b)(1)(B).
In Smith v. Bayer Corp., the Eighth Circuit affirmed the trial court's ruling that prevented Baycol plaintiffs from bringing another economic injury class action in West Virginia state court after the federal judge overseeing the MDL proceedings already denied class certification on similar issues. Keith Smith and Shirley Sperlazza, the petitioners, argued that they weren't parties to the federal case and didn't know about the lawsuit. They also argued that they were asserting a common-law fraud claim under West Virginia law, which the federal plaintiffs did not assert.
The BNA Class Action Litigation Report (subscription required) has a nice write-up of the issues in the case, including the injunction and personal jurisdiction issues. Here are links to the Petition for Certiorari, the Brief in Opposition, and the Petitioner's Reply (courtesy of SCOTUSblog).
Sunday, September 19, 2010
According to an article in the Wall Street Journal, Toyota has settled, for an undisclosed amount, an unintended-acceleration lawsuit involving the deaths of four persons. The accelerator appeared to have been caught in the floormat. The article notes that Toyota faces about 200 unintended-acceleration lawsuits.
Wednesday, May 5, 2010
Today's Wall Street Journal has an article about the plaintiffs' attorneys jockeying for the lead position in the Toyota MDL. The litigation has been consolidated in front of U.S. District Court Judge James Selna of Santa Ana, California. The applicants listed qualifications range from receiving the key to the City of Miami to speaking to Japanese engineers 15 years ago to donating kidneys to inventing healthy doughnuts. WSJ's Law Blog has a short post on it as well.