Thursday, November 14, 2013
As the trial continues to unfold in New York in Chevron's RICO lawsuit against plaintiffs' lawyer Stephen Donziger -- amid accusations of judicial bribes, ghostwritten opinions, and sex scandals -- it is worth noting what happened in Ecuador this week.
On Tuesday, Ecuador's high court, the National Court of Justice, affirmed the underlying judgment against Chevron but reduced the amount from about $19 billion to $9.5 billion. The court eliminated the portion of damages that had been imposed as punishment for Chevron's failure to apologize. Here are news accounts from the Wall Street Journal and Reuters. Chevron's suit against Donziger contends that he engaged in fraud and other misconduct to obtain the massive judgment in the Lago Agrio environmental litigation.
Wednesday, April 11, 2012
Edward Cheng (Vanderbilt) has posted his paper, "When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling," on SSRN. It's also available through Penn's website. Here's the intro on Penn's website:
In many mass tort cases, individual trials are simply impractical. Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment discrimination suit that the Supreme Court reviewed last Term. With over 1.5 million women potentially involved in the litigation, the notion of holding individual trials is fanciful. Other recent examples of the phenomenon include the In re World Trade Center Disaster Site Litigation and the fraud litigation against light cigarette manufacturers, in which Judge Weinstein colorfully noted that any “individualized process . . . would have to continue beyond all lives in being.”
Faced with an unserviceable number of plaintiffs, courts have proposed sampling trials: rather than litigating every case, courts would litigate a small subset and award the remaining plaintiffs statistically determined amounts based on the results. But while sampling is standard statistical practice and often accepted as evidence in other legal contexts, appellate courts have balked— based on due process concerns—at the notion of court-mandated, binding trial sampling.
Despite this appellate reluctance, the controversy continues unabated. Trial courts have soldiered on by using nonbinding sampled trials (dubbed “bellwether trials”) to induce settlement, and a few brave appellate courts, including the Ninth Circuit in Dukes, have even hinted at an increased receptivity to sampling. Given that trial courts have few practical alternatives, one wonders if it is just a matter of time before their appellate brethren recognize the necessity of sampling.
And here's the SSRN abstract:
In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in which the “second best” assumption can be wrong. Under the right conditions, sampling can actually produce more accurate outcomes than individualized adjudication. Specifically, sampling’s advantages in averaging (reducing variability), shrinkage (borrowing strength across cases), and information gathering (through nonrandom sampling), can result in some instances in which ten trials are better than a thousand.
Saturday, February 18, 2012
NPR has a story with lots of interesting quotes. My favorite:
"There's only one place where a waitress or a shrimper can be on equal footing with a company the size of BP, and that's a courtroom," says Rhon Jones, with the Montgomery, Ala., law firm Beasley Allen. Jones is part of the plaintiffs' steering committee, a group of lawyers coordinating the case.
The story raises a series of important questions about the purpose of litigation and settlement. Is it best for society to funnel cases outside that system as in the BP and 9/11 cases? What is the use of a trial - to apportion liability? get to the truth? allocate damages? figure out difficult causation questions? Are different plaintiffs to be treated differently - for example the waitress and the shrimper above as opposed to the attorneys general of the affected states?
Edited to add: I just saw the blog post by George Conk about the potential ineligibility of many plaintiffs who did not file claims with the compensation fund. See here for more analysis.
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.
Saturday, September 3, 2011
Snigdha Prakash has written an interesting book on the Vioxx litigation, "All the Justice Money Can Buy: Corporate Greed on Trial." The book follows the early course of the Vioxx litigation and then turns its attention to the Humeston/Hermans trial, during which Prakash was embedded with Mark Lanier and his trial team. Dramatic and well-written, and not shy about taking sides, the book is a great read and offers a rare inside look at the functioning of a trial team and the tensions that can arise among plaintiffs' lawyers in mass tort litigation.
Sunday, May 8, 2011
Last Thursday, a jury in Smith County Mississippi awarded the largest asbestos verdict in United States history against Chevron Phillips Chemical and Union Carbide Corporation. The award compensated Thomas "Tony" Brown, Jr. for future medical expenses, pain and suffering, and punitive damages. Here's a link to the story from Laurel Leader-Call and the WSJ Law Blog story by Ashby Jones.
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.
Thursday, February 4, 2010
The New York Times has published an article by Mireya Navarro entitled "Effort to Settle Sept. 11th Lawsuits". The article describes (albeit without much detail) the efforts to settle the lawsuits brought by first responders against various contractors and New York City in the aftermath of the terrorist attack of September 11th. Twelve cases have been scheduled to go to trial in May 16, ten thousand total have been brought against approximately 200 defendants. Apparently there is a 70 page settlement plan and the judge says that the parties have been working "very hard." The article also mentions a bill pending in Congress to compensate the workers at the disaster site, similar to that created to compensate the victims of the tragedy.
The judge is using a relatively sophisticated approach to sampling, first surveying the class and using a severity chart to pick cases for trial. The special masters that came up with it are both law professors and experts in mass torts: Aaron Twersky (Brooklyn) and James Henderson (Cornell).
The article quotes two law professor mass tort experts. Anthony Sebok (Cardozo) explains the difficulty of the causation issues: "“There’s not a lot of experience with this kind of risk, [i]t may be very difficult from a technical point of view to get testimony from experts.”
Richard Nagareda (Vanderbilt) explains “Ultimately, everybody understands there’s going to be some sort of comprehensive settlement. The question is, what is the price?”
I am working on a paper that attempts to answer this question - what is the best way to determine the price. I think holding some sample trials is the best way, but it sounds like the players in this litigation disagree and would prefer to reach a settlement prior to trial. The judge is prepared for this and apparently has suggested having multiple judges try the sample cases rather than trying them together.
Impending trials have a way of focusing the mind. I predict a settlement by May.
Friday, November 27, 2009
Earlier this week, a Florida jury returned a $300 million verdict in Lucinda Naugle's individual lawsuit against Philip Morris. The jury awarded $56 million in compensatory damages plus $244 million in punitive damages. Here's a WSJ Health Blog post, as well as an editorial in today's NY Times urging that "There should be more lawsuits seeking not only monetary damages, but changes in how the tobacco industry markets its products."
The Naugle action is one of over 8000 post-Engle lawsuits in Florida. Engle was the massive statewide Florida class action against the tobacco industry that resulted in a 12-figure punitive damages verdict against the cigarette companies. When the Florida Supreme Court decertified the class in 2006, the classwide punitive damages verdict was lost, but the Florida Supreme Court held that the classwide factual findings would be given preclusive effect in subsequent individual trials. Thus, when Engle class members (Florida smokers) go to trial on cigarette claims, certain facts are already established without the need for new proof: that nicotine is addictive, that cigarettes cause certain diseases, that the tobacco companies knew of certain dangers but failed to disclose that information, and so on. The post-Engle individual lawsuits began to reach trial this year, and so far they have mostly resulted in big wins for plaintiffs.
As I commented on this blog nine months ago, if the post-Engle plaintiffs continue to win at this rate, it may turn out that the Florida Supreme Court's decertification of the class action -- which at the time seemed like an important victory for the tobacco industry -- was an even greater victory for tobacco plaintiffs.
Tuesday, November 24, 2009
In the hormone replacement therapy (HRT) litigation, plaintiffs won substantial verdicts in two trials in state court in Pennsylvania. In the trial that concluded yesterday, the jury imposed punitive damages of $28 million on top of the $6.3 million in compensatory damages it had already awarded to plaintiff Donna Kendall. In the other case, the court yesterday unsealed a punitive damages verdict of $75 million for plaintiff Connie Barton, who had been awarded $3.7 million in compensatory damages. When the Barton punitive verdict was reached in late October, the court took the unusual step of sealing the amount of punitives (see here and here) while the Kendall trial was pending. Here's an excerpt from today's Philadelphia Inquirer article:
Pfizer Inc. has been hit with more than $100 million in two punitive-damage awards - one decided and the other unsealed yesterday - from Philadelphia juries.
Both cases involve Prempro, a hormone-replacement drug made by Wyeth, which recently was acquired by Pfizer. Plaintiffs said the drug was linked to their breast cancer.
The total includes $28 million awarded yesterday to Donna Kendall of Decatur, Ill.
In the second case, Philadelphia Common Pleas Court Judge Sandra Moss yesterday unsealed a verdict reached earlier this year that awarded $75 million in punitive damages to another Illinois resident, Connie Barton, over her Prempro-linked breast cancer. ...
About 1,500 of 10,000 similar cases are pending in Philadelphia, a common jurisdiction for large liability cases, attorneys say.
With the momentum in plaintiffs' favor and 10,000 cases remaining, one has to wonder whether Pfizer will seek some sort of global settlement. We can't help comparing Pfizer's position to the position of Merck before it settled the Vioxx litigation. After a similar but slightly higher number of trials, Merck abandoned its try-every-case-individually strategy and negotiated a mass aggregate settlement. Merck, however, settled when it had a favorable trial record; so far the defendants have not prevailed in most of the HRT trials.
Monday, November 16, 2009
Dan Levine, Pair of Plaintiffs Lawyers May Face Different Fates in 9th Circuit Disciplinary Action, The Recorder (discussing disciplinary action in Nicaraguan pesticides case).
Francis E. McGovern (Duke), The Second Generation of Dispute System Design: Reoccurring Problems and Potential Solutions, Ohio St. J. Disp. Resol. (2008) (posted on SSRN).
William H. Simon (Stanford & Columbia), Moral Freaks: Lawyers’ Ethics in Academic Perspective, Geo. J. Lgl. Ethics (forthcoming) (posted on SSRN).
Keith N. Hylton (Boston Univ.) & Haizhen Lin (Indiana), Trial Selection Theory and Evidence: A Review (posted on SSRN).
Neil Vidmar (Duke) & Mirya R. Holman (Duke), The Frequency, Predictability and Proportionality of Punitive Damages in State Courts (posted to SSRN).
Patrick M. Connors (Albany), Which Party Pays the Costs of Document Disclosure?, Pace L. Rev. (2009) (posted to SSRN).
Tuesday, October 27, 2009
Yesterday, a Philadelphia jury found for the plaintiff in the punitive damages phase of a trial involving Prempro, the hormone replacement therapy. How much Wyeth (now a unit of Pfizer) must pay Connie Barton, however, remains secret. Judge Sandra Moss, who oversees the Prempro state court litigation in Philadelphia, ordered the verdict sealed because another Prempro trial had begun and the defendant requested the order to prevent biasing the other jury. Until the verdict is unsealed, only Barton, her lawyers, and Wyeth's lawyers may see the verdict. In the compensatory damages phase, which concluded last month, the jury awarded Barton $3.7 million. Here's the report from Bloomberg about yesterday's verdict.
Friday, October 16, 2009
Bad news for Glaxo. The first trial involving claims that the antidepressant Paxil causes birth defects ended with a $2.5 million jury verdict for the plaintiff. The family of Lyam Kilker sued GlaxoSmithKline in Philadelphia Common Pleas Court, blaming the boy's heart defect on his mother's ingestion of Paxil during pregnancy. The jury, by a 10-2 vote, concluded that Glaxo negligently failed to warn of the risk and that Paxil caused the child's heart condition. While the jury awarded notably large compensatory damages (the family sought $1.2 million), it rejected punitive damages by deciding that the defendant's conduct was not "outrageous." The case is Kilker v. SmithKline Beecham Corp. dba GlaxoSmithKline. Here are links to reports at Philadelphia Inquirer, Pharmalot, Point of Law, and Law.com.
In addition to about 600 cases involving claims that Paxil causes birth defects, Glaxo has faced claims that Paxil increases the risk of suicide and homicide. The company has reportedly settled some suicide claims, and in 2001 a Wyoming jury rendered a $6.4 million verdict against Glaxo in a case involving a man who shot his family and himself after taking Paxil.