Mass Tort Litigation Blog

Skadden Successfully Recruits John Beisner, Stephen Harburg, and Jessica Davidson Miller of O'Melveny

According to this press release from Skadden, John Beisner, Stephen Harburg , and Jessica Davidson Miller will leave O'Melveny and join Skadden's Washington, D.C. office.  John Beisner, chair of O' Melveny's Class Actions, Mass Torts, and Aggregated Litigation Practice, represented Merck in the Vioxx litigation and is a preeminent defense mass tort practitioner.  Most remarkable is the prospect in one firm of both John Beisner and Sheila Birnbaum, founder of Skadden's mass torts department and herself frequently named as the leading defense products liability lawyer.  As someone who worked in New York at Skadden's mass torts department myself while in practice, I would also mention Skadden's depth of talent, including partners Raoul Kennedy, Jeffrey Lichtman, Russell Jackson, Mark Cheffo, and Steven Napolitano.  Quite a group indeed.

BGS

Merck's International Litigation Strategy

An article in the New York Times entitled "Trial Puts Spotlight on Merck" describes Merck's continuing litigation internationally, with a focus on a Vioxx trial currently under way in Australia.  This trial is receiving substantial media coverage in Australia, according to the Times, most of it negative publicity for Merck.  Why continue this litigation strategy even after settling in the US for nearly $5 billion?  The Times reports:

The point of trying the case is to stand behind the company’s conviction that it acted responsibly in developing, marketing, and ultimately withdrawing Vioxx, Bruce N. Kuhlik, Merck’s general counsel, said in an interview this week.

The article notes that plaintiffs lawyers from other countries (Canada in particular) are watching the trial and obtaining information they otherwise lacked.

ADL

Weinstein: Some Pessimism About Aggregate Litigation

Judge Weinstein has published a short essay on the administration of complex litigations in a new on-line publication of the Cardozo Law Review called De Novo.  The essay, entitled "Preliminary Reflections on the Administration of Complex Litigations" describes a few litigations in which the Judge acted as architecht of a large-scale settlement (what has been described as a quasi-administrative agency).

Judge Weinstein closes on a pessimistic note, arguing that the appellate courts have been so inhospitable to class actions and aggregations that it will now fall to regulators to prevent mass claims rather than the courts to adjudicate them.  He writes: "There is a general hostility, I believe, particularly at the appellate level, to class actions and other devices for efficient administration of mass litigation."  And he ends by writing "In the end, I must reluctantly conclude that the law—and certainly I—have failed to rise sufficiently to meet the challenges of modern litigation.  We have not served the people as well as we should have."

The model for adjudication of mass torts was initially individual litigation, which gave way in the 1980's and 1990's to an administrative model.  (For a great article making this argument see Richard Negareda, From Tort to Adminsitration in the Michigan Law Review - which for some reason the author has not put on SSRN, but when he does I shall link to it).   Today the adminsitrative model still has some traction, but it seems that things are shifting.  Zyprexia and Vioxx are far different than Agent Orange was.  We're seeing a different type of judicial involvement which is geared more towards information gathering than actual adjudication, more private control over settlements, the total failure of the class action device to offer closer and the mechanism for an administrative regime.  So what is next for mass torts?  Can the current developments still be described as an "administrative" regime or is this something closer to an insurance model?

ADL

Mark Lanier Addresses Harvard Torts Class

Mark Lanier, a prominent mass tort plaintiffs' lawyer noted in particular for his Vioxx litigation success, addressed Professor Jon Hanson's Torts class at Harvard.  (H/t to Torts Prof Blog.)  Video is available here.

BGS

Samuel Issacharoff on Private Claims & Aggregate Rights

Professor Samuel Issacharoff (NYU) has posted on NELLCO his manuscript, Private Claims, Aggregate Rights, which is forthcoming in the Supreme Court Review.  Here's the abstract:

In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.

Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.

BGS

The Mass Tort Reward: Miley Cyrus

E!online reports that Mark Lanier, of Vioxx litigation fame, hired Miley Cyrus to play his firm's holiday party, which included 7,000 guests.  No word on whether Cyrus's father, country singer Billy Ray Cyrus, lead the Vioxx plaintiffs in a chorus of "My Achy Breaky Heart."

BGS

Vioxx Litigation Update

The National Law Journal reported last week on the Vioxx litigation in an article titled "Persistence Pays in Vioxx Litigation."  (Oct. 6, 2008 at S3).  It quoted Tom Girardi, who filed the first Vioxx case, as noting that the lesson from Vioxx was to settle early rather than losing billions in bad publicity.  On the flip side, Richard Nagareda noted that Merck's strategy of resisting settlement off the bat was largely successful, resulting in a lower payout per claimant.  The article concludes by observing that all eyes are on Wyeth v. Levine, No. 06-1249, which is pending before the Supreme Court and addresses FDA pre-emption.

ECB

Suffolk Law School Conference on Successful Strategies for Jury Trials

On Friday, October 24, 2008, Suffolk Law School will host a conference, Successful Strategies for Jury Trials.  Speakers include Professors George Conk (Fordham), Valerie Hans (Cornell), Michael Rustad (Suffolk), Linda Sandstrom Simard (Suffolk), Gabriel Teninbaum (Suffolk), and Neil Vidmar (Duke).   

Professor Conk will deliver the Luncheon Keynote Address on "The Vioxx Story."

BGS

WSJ Editorial on FASB Proposed Rule Requiring Disclosure of Estimate of Lawsuit Cost

Editorial in the Wall Street Journal -- FASB's Lawyer Bonanza.  Here's an excerpt:

Under the proposed change, a company facing a lawsuit would have to list on its financial statement its best-guess estimate of what that litigation could end up costing -- not just in attorney fees, but in any potential payout. For a company in high-stakes litigation, that means showing its hand to plaintiffs' attorneys, allowing them to gauge management's upper estimate of what the case is worth.

The effect will be to force corporate defendants to fight lawsuits with one hand tied behind their backs -- assuming the company can even figure the "fair value" of a lawsuit it has no idea if it will win or lose. Predicting the trajectory of complex, often multiyear litigation is inherently unscientific. As we saw with Merck and Vioxx, a company's stock price can jump or fall depending on jury verdicts whose results are impossible to predict.

BGS

NJ Supreme Court decides Sinclair v. Merck

The New Jersey Supreme Court issued its decision in Sinclair v. Merck, a medical monitoring class action filed against Merck on behalf of Vioxx users who had not filed personal injury claims.   The opinion is available here.   The court rejected the plaintiff's claims.  This opinion joins a spate of recent decisions in Merck's favor.  Vioxx continues to be a vehicle for making new law and rethinking old ones.  Whether the New Jersey courts' tightening of medical monitoring claims is a good idea from a policy perspective will have to wait to another day. 

For a defense-side take on this opinion, see the Drug and Device Law Blog here.  Their analysis is useful.  Thanks to Mark Hermann for bringing this to my attention. 

ADL