Wednesday, September 16, 2009
Frederick Schauer and Richard Zeckhauser have posted "The Trouble With Cases" on SSRN. This article makes an interesting argument about the dearth of rigorous empirical basis for regulation - by litigation and by legislation as well. CAFA is a wonderful example of the problem they point to. Here is the abstract:
For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate is about whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we enter the debate, but not to come down on one side or another, all things considered, of the litigation versus ex ante rule-making regulatory debate. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, because of the availability heuristic and related problems of representativeness, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. And although this problem is virtually inevitable in regulation by litigation, it is far from absent even in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the value of regulation by ex ante rule-making against the value of regulation by litigation, it is important for society to recognize that any regulatory form is less effective just insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.
Wednesday, September 2, 2009
I posted to SSRN my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temple Rev. 1013 (2007). Notwithstanding the 2007 formal publication date, the article was published this year. Here's the abstract:
Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.
Tuesday, August 25, 2009
Sunday, July 5, 2009
Professor Robert Rabin (Stanford) has posted on SSRN his article, Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption, Brook. L. Rev. (forthcoming 2009). Here's the abstract:
In this article, I begin by revisiting Cipollone to reassess what it has to offer as a foundation for setting the boundaries of regulatory containment of the tort system. Next, I discuss three leading cases from the series of efforts by the Supreme Court to grapple with express preemption clauses in a variety of regulatory schemes. Against this backdrop, I then explore the circumstances under which it might be justified to imply preemption despite the absence of an express provision, with particular reference to the recent Supreme Court decision in Wyeth v. Levine, addressing preemption in the context of FDA regulation of prescription drugs. A concluding note ties the strands together.
Monday, June 22, 2009
Article on cnn.com -- Obama signs bill putting tobacco products under FDA oversight. Here's an excerpt:
President Obama signed landmark legislation Monday giving the Food and Drug Administration new power to regulate the manufacturing, marketing and sale of tobacco.
The Family Smoking Prevention and Tobacco Control Act gives the FDA power to ban candy-flavored and fruit-flavored cigarettes, widely considered appealing to first-time smokers, including youths. It also prohibits tobacco companies from using terms such as "low tar," "light" or "mild," requires larger warning labels on packages, and restricts advertising of tobacco products.
It also requires tobacco companies to reduce levels of nicotine in cigarettes.
Monday, June 8, 2009
Op-ed in today's Wall Street Journal -- Tobacco and the Tort Bar, by Mark H. Berlind. Here's an excerpt:
Today's legislation would impose strict limits on tobacco advertising and labeling, mandate stronger warning labels, and require advance FDA approval of any reduced-risk claims. It would also empower the FDA to change cigarettes' content to make them less addictive and lethal.
However, in a little-noticed provision, the bill also expressly provides that "no provision of this chapter . . . shall be construed to modify or otherwise affect . . . the liability of any person under the product liability law of any State." In other words, the regulatory regime that the legislation would establish can't protect companies from tort liability -- even if they rigorously follow every FDA rule.
Tuesday, March 24, 2009
More as details unfold... Gelep is one of the post-Engle individual-plaintiff cases.
UPDATE #1- Here's the press release from Altria on today's verdict in Gelep. For context, here's Altria's press release on the prior Hess verdict in Florida that went against Altria. Here are also links to two recent articles by me that discuss Engle and prior Florida tobacco litigation: Jackpot Justice: Verdict Variability and The Mass Tort Class Action, Temple. L. Rev. (forthcoming 2009); Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts, Pepp. L. Rev. (forthcoming 2009).
UPDATE #2 -- I can't resist an online congratulations to Rachael Weinfeld, a former research assistant of mine at Southwestern Law School who joined Shook, Hardy & Bacon after graduation last year and served on the Gelep trial team for Altria. Putting aside for a moment the merits of the lawsuit here -- a professor is always happy to see exceptional students leave the nest and take flight, and Rachael has certainly done so.
Wednesday, March 11, 2009
The Federalist Society is hosting a panel on the new book, Regulation by Litigation (Yale Univ. Press 2008), co-authored by Professor Andrew Morriss (Illinois), Professor Bruce Yandle (Clemson, Economics Dep't), and Andrew Dorchak (Case Western, Law Library). The event will be held on Tuesday, March 17, 2009 at the Mayflower Hotel in Washington, D.C. Panel members will include the book's authors, as well as Professor David Vladeck (Georgetown) and Roger Martella (Sidley Austin), and the moderator will be Jonathan Adler (Case Western). Here's the description of the book:
Federal and state regulatory agencies are increasingly making use of litigation as a means of regulation. In this book, three experts in regulatory law and theory offer a systematic analysis of the use of litigation to impose substantive regulatory measures, including a public choice-based analysis of why agencies choose to litigate in some circumstances.
The book examines three major cases in which litigation was used to achieve regulatory ends: the EPA’s suit against heavy duty diesel engine manufacturers; asbestos and silica dust litigation by private attorneys; and private and state lawsuits against cigarette manufacturers. The authors argue that litigation is an inappropriate means for establishing substantive regulatory provisions, and they conclude by suggesting a variety of reforms to help curb today’s growing reliance on such practice.
Thursday, February 19, 2009
A Florida jury yesterday awarded $8,000,000 ($3 million compensatory plus $5 million punitive damages) to the family of a smoker who died of lung cancer. The case, Hess v. Philip Morris, was the first of 8,000 individual cases that may go to trial in Florida in the wake of the Florida Supreme Court's 2006 rejection of a statewide class action in Engle v. Liggett Group.
In the Engle class action, a jury had found the defendant tobacco companies liable for $145 billion in punitive damages. The Florida Supreme Court (here's that court's decision) found that the class action should not have been certified on punitive damages, but held that certain factual findings on liability would be given issue preclusive effect in subsequent individual trials against the defendants. I believe Florida remains one of the few states that clings to the traditional requirement of mutuality for issue preclusion, but the Engle decision did not actually condone nonmutual use of the trial findings. Rather, it concluded that although certain issues were so individualized that they required decertification of the class on remand, the common liability issues were suitable for classwide determination and thus could stand. The Florida Supreme Court put it this way: "Individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case." In other words, despite the decertification of the class, the individual class members would be treated as parties entitled to use the favorable findings on liability.
If yesterday's verdict is any indication of how the remaining trials will go, the defendants' appellate "victory" in Engle offers them scant protection from the prospect of multi-billion dollar liability in Florida. The irony is that after defeating class cert in Engle, the defendants may eventually find themselves wishing to negotiate a settlement class action to resolve the remaining claims.
Here's an excerpt from yesterday's Bloomberg.com report by Jef Feeley and Mort Lucoff:
Altria Group Inc., the biggest U.S. cigarette maker, must pay $8 million to the family of a smoker who died of lung cancer, a Florida jury ruled in the first of 8,000 individual cases to go to trial in the state. A state court jury in Fort Lauderdale ruled today Altria’s Philip Morris USA unit is liable for $3 million in compensatory damages and $5 million in punitive damages over Stuart Hess’s 1997 death. ...
The verdict is the first in thousands of lawsuits filed after the Florida Supreme Court refused to reinstate a $145 billion punitive-damages verdict awarded by a Miami jury to a statewide class of smokers in 2006. Florida’s high court, which ruled the smokers can’t sue as a group, extended the time for individual smokers to sue and allowed them to rely in their individual cases on factual findings by the Miami jury, including that cigarettes are addictive and cause cancer. ...
The 8,000 cases pending in the state are split up among cigarette makers including Altria, Reynolds American Inc. and Vector Group Ltd. The cases are slated to be tried in courthouses across the state in coming months and years.
Monday, December 22, 2008
Article in the Wall Street Journal -- Altria Ruling Ignites Legal Moves, by Brent Kendall. Here's an excerpt:
The Supreme Court's ruling last week allowing smokers in Maine to sue Altria Group Inc.'s Philip Morris unit for allegedly deceptive advertising of "light" cigarettes already is prompting new legal activity, including an effort to revive a multibillion-dollar case against the tobacco company that had been thrown out.
The high court's decision came just in time for St. Louis trial lawyer Stephen Tillery, who filed a legal motion Thursday seeking to reopen a $10.1 billion judgment in Illinois he obtained against Philip Morris in 2003. The judgment was later tossed out by the Illinois Supreme Court, which said Mr. Tillery's plaintiffs couldn't sue the tobacco company for marketing cigarettes with "light" and "low tar" descriptions.
Mr. Tillery says the U.S. Supreme's Court's 5-4 decision "eviscerates" the legal basis for the Illinois court's ruling and could breathe new life into his case. He was nearing a final deadline for finding a basis to revive the suit.
Saturday, December 20, 2008
A belated welcome to Constitutional Law Prof Blog, a recent member of the Law Prof Blogs Network. The blog is edited by Professors Steven Schwinn (John Marshall), Ruthann Robinson (CUNY), and Nareissa Smith (Florida Coastal). Here's a recent preemption post about Altria Group, Inc. v. Good.
Tuesday, December 16, 2008
Yesterday, the Supreme Court ruled in Altria Group v. Good that the federal cigarette labeling statute does not preempt claims that tobacco companies violated state consumer protection laws in their marketing of light cigarettes. Here's the Supreme Court's opinion.
Today, the New York Times ran an editorial lauding the decision, calling it a "major and well-deserved setback" for the tobacco industry, and suggesting that the ruling may indicate a shift away from the Court's pro-defendant rulings on civil litigation issues:
It was a welcome departure for a court that has been far too deferential to business. We hope it signals that the justices are moving toward a more balanced approach to business cases.
The editorial noted that until this case, the Supreme Court's recent rulings "have made it harder for ordinary Americans to hold corporate wrongdoers accountable." The interesting thing was how the editorial then linked the decision to "troubled economic times," the "election returns," and the "national mood":
In these troubled economic times, as the nation is still trying to come to terms with the enormous damage done by the deregulation of the mortgage industry, the national mood is turning strongly toward greater regulation. It has often been observed that the Supreme Court has a tendency to follow the election returns, and it may have done so here. With this decision, the court might be indicating a greater appreciation that when companies do wrong, there needs to be a legal means of holding them accountable.
It remains to be seen what the Supreme Court will do in Wyeth v. Levine and other cases on preemption, punitive damages, and other key issues facing mass tort defendants and plaintiffs. As far as the White House is concerned, although Barack Obama clearly is not a tort reformer in the mold of George Bush, he has avoided being closely identified with trial lawyer interests and made a point during the campaign of emphasizing that he voted for CAFA in the Senate. But it is undeniable that the "national mood" has shifted, and it will be interesting to see whether this latest tobacco ruling heralds a Supreme Court shift in the same direction. And even more interesting to see what happens to such rulings if President Obama gets to name a new Justice or two.
Monday, December 15, 2008
Adam Liptak of the New York Times breaks down the issues in Justices Look Anew at Case in Which Oregon Court Has Twice Rebuffed Them. Here's an excerpt:
The United States Supreme Court takes its name seriously, and it expects lower courts to follow its instructions. But the Oregon Supreme Court has twice refused to reduce a $79.5 million punitive damages award in the face of increasingly blunt directions from the nation's highest court.
When the United States Supreme Court agreed to hear the Oregon case for a third time in June, many legal experts assumed it did so to teach the lower court a lesson about which court has the last word.
''The Oregon Supreme Court really has continued to be defiant in this case,'' Benjamin C. Zipursky, a Fordham law professor, said.
Wow. The Supreme Court today allowed smokers to sue tobacco companies under state consumer protection statutes for deceptive promotion of "light" and "low tar" cigarettes. In Altria Group v. Good, the Court rejected the defendants' argument that federal law on cigarette labeling preempts such suits. Plaintiffs had sued under the Maine Unfair Trade Practices Act. The District of Maine granted summary judgment for Altria, and the First Circuit reversed. At the Supreme Court, Justice Stevens wrote today's majority opinion for the usual 5-4 split with Kennedy as the swing vote (Stevens, Ginsburg, Breyer, Souter, and Kennedy vs. Thomas, Roberts, Scalia, Alito).
Here's an excerpt from the AP story on the New York Times website:
The Supreme Court on Monday handed a surprising defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of ''light'' cigarettes. In a 5-4 split won by the court's liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote ''light'' and ''low tar'' brands. The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power. The tobacco companies argued that the lawsuits are barred by the federal cigarette labeling law, which forbids states from regulating any aspect of cigarette advertising that involves smoking and health.
Just when we thought federal preemption was going to change the course of mass tort litigation, it seems that one of the key pieces of tobacco litigation is alive and well.
Tuesday, December 9, 2008
Lorillard Tobacco Company on Liberty in America -- Including Liberty to Re-Start Litigation Against Itself?
Interesting paid-advertisement op-ed by Lorillard Tobacco Company in the Opinion section of today's Wall Street Journal. Unfortunately, I can't find the ad online, so I'll have to type from my paper copy.
The headline is "No Choice, No Freedom." Lorillard begins by issuing what is a clarion call for any product-liability libertarian like me (and for disclosure, I represented R.J. Reynolds Tobacco Company in the 1990s). From the ad:
Freedom is the right to choose -- perhaps the most powerful act in our democracy. And nowhere else was that awesome responsibility better displayed than in the recent presidential election, the ultimate act of democratic choice.
Indeed, Americans know and understand the importance of choice. Choice underlies the values of our nation. It is the essence of individual character and ultimately leads to empowerment and engagement. We are all better off with it -- and oppose those who want to limit it.
Choice, of course, demands responsibility. Where that responsibility rests is often the crux of vigorous debate. Government reform and regulation have appropriate places in our society. But that government power to regulate must be balanced against misguided zeal that has the potential to restrict our freedom of choice. Taken too far, such an effort may turn negative and could threaten the basic concept of liberty that Americans have protected for more than 230 years.
It is in that context that Americans should be ever vigilant about the government's encroachment on people's right to choose the legal products they want to enjoy. Should Congress or an Executive Branch department or agency dictate whether we should drink diet soda or regular soda? Drive only certain types of cars? Eat in only certain types of restaurants? We believe the answers to all of those questions is "no." For the government to seek to eliminate that choice is troubling. For it to succeed could be dangerous, and would stamp out the core of the American spirit.
Well said, indeed. Then Lorillard turns to the specific issue -- Menthol cigarettes -- and here's where things get interesting:
With this in mind, we should consider a proposal, that some are advocating, to ban the use of menthol in cigarettes. They claim that menthol cigarettes confer a higher risk for tobacco-related diseases, or that menthol cigarettes are more addictive than non-menthol cigarettes.
And then the key sentence (italics added):
Yet, the existing body of scientific evidence does not support those conclusions.
Is Lorillard trying to re-start tobacco litigation against itself? Smokers who in the future get cancer or other illnesses and who have smoked Menthol cigarettes may sue for fraud and allege that they relied on Lorillard's comment that Menthol is not more dangerous than regular cigarettes. Such potential plaintiffs might hope to cull enough evidence of Menthol's additional danger to survive summary-judgment and put their claims before a jury that, despite voir dire attempts to exclude overt bias, might still be inclined against Lorillard from prior tobacco litigation and settlements. Plaintiffs would still also have to prove reliance on the statements, but the failure of smokers in the last litigation to show individual reliance didn't prevent a litigation firestorm, and plaintiffs' counsel have experimented (although so far lost) with arguments that individual reliance is not needed where the background public knowledge is changed.
Lorillard certainly should press its view before Congress that Menthol is not more dangerous that non-Menthol. But as a strategic matter, do they need to take out a mass-media ad to the public? Such an ad likely does little to create additional support (most Journal readers probably supported them already), but it does open Lorillard up to possible litigation.
And then the ad continues in an appeal to balanced scientific inquiry (and due consideration that Menthol might not be more dangerous) that might be seen by some as vaguely reminiscent of the 1954 Frank Statement that figured prominently in the last litigation. From today's ad:
Before Congress attempts to ban menthol cigarettes, which are smoked by nearly one-third of all smokers, they have a responsibility to know the facts and have all the evidence needed to make such an important decision. That is why Lorillard advocates for a proper scientific review based on sound information and scientific evidence and data.
Finally, the ad returns to apply its earlier pro-choice sentiment to tobacco:
Young people should not smoke, and we support efforts to keep them from starting. But, if adults, who can and should assess the risks of smoking, choose to smoke, then shouldn't they have the freedom to choose whether to smoke regular or menthol cigarettes?
We respect every individual's position on whether or not to smoke. We trust that this respect is reciprocal and the right of Americans to choose the legal products they want is equally cherished.
Setting aside the debate on the dangers of Menthol cigarettes, my verdict is that Lorillard is right on principle, wrong on strategy.
Thursday, December 4, 2008
Article on Bloomberg.com -- Altria Punitive-Damages Case Divides U.S. High Court, by Greg Stohr. Here's an excerpt:
A divided U.S. Supreme Court wrestled with a $79.5 million award against Altria Group Inc.’s Philip Morris USA unit in an Oregon smoker lawsuit and discussed the possibility of broadening the scope of the case.
In a case now before the justices for the third time, Philip Morris is seeking a new trial and a reprieve from what would be a record payment in a smoker suit. The cigarette maker says the Oregon Supreme Court improperly circumvented a 5-4 ruling the company won at the U.S. Supreme Court last year. The Oregon court then reaffirmed the award, saying the company violated a state procedural requirement.
Comments during today’s argument suggested that several justices may switch sides, putting the outcome in doubt. Antonin Scalia, who dissented in 2007, today said the Oregon court had disobeyed the high court’s instructions. At the same time, Stephen Breyer and David Souter, who previously sided with Philip Morris, hinted they might vote against the company this time.
Friday, November 14, 2008
A press release by Souza Cruz, a subsidiary of British American Tobacco, indicates that a Sao Paulo Court of Appeals vacated an award against Souza Cruz and Philip Morris Brasil, a subsidiary of Philip Morris International. Here's an excerpt:
The 7th Civil Chamber of the Court of Appeals of the State of Sao Paulo vacated yesterday, by unanimous vote, the judgment of the court of 1st instance that had found in favor of the indemnification claim brought by the Association for the Defense of the Health of Smokers ("ADESF") against the Brazilian cigarette manufacturers Souza Cruz (a subsidiary of British American Tobacco) and Philip Morris Brasil (a subsidiary of Philip Morris International). The Court of Appeals granted the appeals of the manufactures on grounds that the lower civil court decision had violated the constitutional principle of due process of law since it had failed to extend to the manufacturers the opportunity of producing any evidence, including expert evidence that had already been ordered by the Court of Appeals itself.
. . .The main reasoning of the Brazilian Courts for rejecting this type of claim is: consumers have free will to decide (or not) to smoke, since the decision to consume the product or not is a question of free choice, the widespread public knowledge of the diseases associated with cigarette consumption and the absence of defect in the product because it is a product of inherent risk, the manufacture, distribution and sale of which in Brazil is authorized and subject to severe regulations by the State.
Tuesday, October 21, 2008
Professor Andrew Morriss (U. Illinois; picture left) comments in a Federalist Society SCOTUScast on Altria Group v. Good, a preemption case that was recently argued in front of the United States Supreme Court.