Wednesday, May 6, 2009
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
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?
Friday, December 26, 2008
Monday, December 15, 2008
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.
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."
Tuesday, October 14, 2008
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.
Tuesday, September 30, 2008
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."
Thursday, August 7, 2008
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.
Wednesday, June 4, 2008
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.
Saturday, May 31, 2008
Editorial in the Wall Street Journal -- Vindicating Vioxx. Here's an excerpt:
Texas and New Jersey may have different political cultures, but appeals courts in both states this week delivered a one-two punch to the liability suits against Merck for its Vioxx painkiller. In Texas, a court overturned a $26 million 2005 jury verdict against the drug company, while New Jersey's court whittled down an earlier verdict to exonerate Merck from a finding of consumer fraud and eliminate punitive damages.
The rulings are evidence that some sanity still exists in the tort system – at least at the appellate level. In Texas, the court's Chief Justice Adele Hedges said there was "no evidence" that the patient had suffered a cardiovascular event as the result of a blood clot or that Vioxx was in any way related to the death. Those are strong words for a case that the trial bar had celebrated as the start of a huge payday.
At the beginning of the Vioxx hysteria, some analysts predicted Merck's liability could spiral as high as $30 billion, threatening the company itself. Last year, Merck settled most of the cases for $4.85 billion. But since Vioxx was taken off the market in 2004, only three of the 20 suits that have gone to juries have ended favorably for plaintiffs. There were other reality checks along the way: Vioxx plaintiffs were denied class-action status in a federal court in 2006, and by the New Jersey Supreme Court last year.
Friday, May 30, 2008
Article in the Houston Chronicle -- Court tosses Vioxx award: Houston panel rules plaintiff will get none of the $26 million, by Mary Flood. Here's an excerpt in which I'm quoted:
A Houston appellate court Thursday overturned a $26 million Angleton jury finding that a 59-year-old triathlete died because of his use of the popular painkiller Vioxx.
The 14th Texas Court of Appeals ruled that Bob Ernst's widow, Carol Ernst, should receive nothing because the more than one month of testimony in the nation's first Vioxx trial contained insufficient evidence to prove the drug caused his heart problem and death.
The ruling on the 2005 trial came the same day a New Jersey court struck down most of a 2006 jury verdict against Vioxx maker Merck & Co.
Earlier this month, an appellate court in San Antonio overturned a $32 million jury award to a widow in South Texas who claimed her husband died of a heart attack because of Vioxx.
Los Angeles-based Southwestern Law School professor Byron Stier, who writes about cases like the Vioxx suits, said that though these big cases are all different, Merck's success with trying many cases and keeping the damage contained will be a lesson to others.
Merck saved about $40 million in damages and attorneys fees in just these two decisions Thursday.
"A mass tort that could have bankrupted Merck has become manageable," Stier said.
AmLaw Daily has a related post, Mark Lanier's Faith Tested: He Loses Two Vioxx Appeals in One Day, by Andrew Longstreth. Here's a roundup of media coverage from the Wall Street Journal Health Blog.
Wednesday, May 21, 2008
Article in the Wall Street Journal -- Merck Will Pay $58 Million To Settle Vioxx Ad Claims, by Kevin Kingsbury. Here's an excerpt:
Merck & Co. agreed to pay $58 million to settle claims by 28 states and the District of Columbia that the drug maker used deceptive advertising for its Vioxx painkiller.
The drug maker also agreed to a ban on medical ghostwriting, under which an author's true identity is concealed. Last month, two medical-journal studies suggested Merck violated scientific-publishing ethics by ghostwriting dozens of academic articles, and minimized the impact of patient deaths in its analyses of some human trials involving Vioxx.
Pennsylvania Attorney General Tom Corbett said Tuesday that in 1999, Merck launched "an aggressive and deceptive advertising campaign which misrepresented the safety and improperly concealed the increased risks associated with Vioxx." The drug was pulled from the market in 2004, after safety concerns were raised.
Sunday, May 4, 2008
Article in the Wall Street Journal -- Pfizer Settles Lawsuits Over Two Painkillers, by Nathan Koppel and Heather Won Tesoriero. What's interesting is Pfizer's approach to settlement: negotiating settlements with plaintiff's firms that have a large inventory of plaintiffs, rather than attempting (like Merck in Vioxx) to offer a massive settlement to all plaintiffs nationwide. Here's an excerpt:
Pfizer Inc. has struck tentative settlements with groups of plaintiffs who allege that the painkillers Celebrex and Bextra caused heart attacks and strokes, according to lawyers at three firms involved in the litigation.
These firms represent more than 200 out of the thousands of people who sued Pfizer over the two medications. The drug maker may have struck additional deals and remains in discussions with other plaintiffs' law firms, according to lawyers involved in the talks.
Unlike Merck & Co.'s recent global settlement of litigation involving the painkiller Vioxx, Pfizer is attempting to resolve its liability on a firm-by-firm basis, lawyers say. The Bextra and Celebrex cases didn't present nearly the same threat to Pfizer that Vioxx did to its maker, though.
Wednesday, April 23, 2008
The DePaul Law Review has published its issue based on its symposium, Challenges to the Attorney-Client Relationship: Threats to Sound Advice? Among the interesting articles are the following:
Nancy J. Moore, The American Law Institute's Draft Proposal to Bypass the Aggregate Settlement Rule: Do Mass Tort Clients Need (or Want) Group Decisionmaking?, 57 DePaul L. Rev. 395 (2008) (ssrn link).
Frank M. McClellan, The Vioxx Litigation: A Critical Look at Trial Tactics, the Tort System, and the Roles of Lawyers in Mass Tort Litigation, 57 DePaul L. Rev. 509 (2008).
Tuesday, April 15, 2008
The New York Times today reported on a JAMA article about medical ghostwriting, raising questions about the integrity of pharmaceutical research studies published in medical journals. Here's how the Times account begins:
The drug maker Merck drafted dozens of research studies for a best-selling drug, then lined up prestigious doctors to put their names on the reports before publication, according to an article to be published Wednesday in a leading medical journal.
The article, based on documents unearthed in lawsuits over the pain drug Vioxx, provides a rare, detailed look in the industry practice of ghostwriting medical research studies that are then published in academic journals.
The article cited one draft of a Vioxx research study that was still in want of a big-name researcher, identifying the lead writer only as “External author?”
Tuesday, March 4, 2008
Today’s Wall Street Journal reports that enough claimants have agreed to Merck’s Vioxx settlement proposal to keep the deal alive. Eighty-five percent of eligible claimants had to enroll by Friday and more than ninety-three percent have joined thus far. Here’s an excerpt of the article:
Claimants next are required to provide medical records that third-party administrators will use to assess what payment they might qualify for. Under the settlement plan, a claim must be based on an incidence of heart attack, ischemic stroke or sudden cardiac death. Plaintiffs must provide documentation showing that Vioxx was taken for at least 30 days and show that the injury occurred within 14 days of using the drug. Payouts will be adjusted according to other cardiovascular risk factors.
Plaintiffs lawyers estimate that, depending on age and risk factors, settlement payments will range from $50,000 to $1.5 million, with an average exceeding $200,000. Merck, of Whitehouse Station, N.J., set aside $1.9 billion for litigation costs -- not including any payouts -- and spent $1.2 billion. But plaintiffs had trouble persuading juries that Vioxx, and not other risk factors, had caused injuries. Of the 16 cases that went to trial, Merck prevailed in 11. Some plaintiffs won big, though: At the first Vioxx trial, a jury in August 2005 awarded a Texas widow $253.4 million -- later reduced to $27.2 million, including interest.
Thursday, February 21, 2008
Chris Seeger, a leading plaintiffs' lawyer and one of the chief architects of the Vioxx settlement, will deliver a lecture entitled "The Vioxx Story: Mass Settlement Without Class Actions" on March 11, 2008, 6:30 p.m. at Cardozo Law School in New York. The program will be moderated by Cardozo Professor Tony Sebok and will include commentary from Kathleen O'Connor of Dechert and from Howard Erichson (me).
For those who wish to understand mass tort litigation, Vioxx is the most important tale to grapple with since fen-phen. It's a story of mass collective representation, parallel state and federal litigation, multiple categories of claims, class cert denials, rejection of large-scale trial consolidation, informal bellwether trials, widely varying trial outcomes, a classic turnabout in defense strategy from vigorous litigaton to comprehensive resolution, and a sophisticated but not problem-free mass aggregate settlement. It's pretty much everything that's right and wrong with mass tort litigation today. I'm looking forward to the event.
Merck announced yesterday that it would seek review of a Canadian decision to certify a Vioxx class action. Here’s an excerpt of its press release on the matter:
Merck Frosst Canada Ltd. has learned that the Saskatchewan Court of Queen's Bench has decided to certify class proceedings in a lawsuit regarding VIOXX®. The Company intends to seek appellate review of the decision because it believes that each plaintiff's case should be tried separately.
"Our legal strategy remains the same," said Maurice Laprairie, of MacPherson, Leslie & Tyerman LLP, Saskatchewan counsel for Merck Frosst and Merck & Co., Inc. "Although we argued against the creation of a class, the Court's decision still requires that each plaintiff must prove his or her claims on an individual basis because each plaintiff's case is unique and depends on an individual set of facts. Heart attacks, for example, are unfortunately common in the population and caused by many different risk factors."
"The Company intends to defend these cases vigorously over the coming years, and we are confident that the courts will decide these cases based on sound science," said Mary M. Thomson, of Gowling Lafleur Henderson LLP, Canadian national counsel for Merck Frosst and Merck & Co., Inc. "We will continue to argue that centralized judicial management of individual cases, not a class action, is the preferable procedure for trying each case in a fair and expeditious manner."
Canada appears more willing to resolve these claims through class action procedures than did the U.S., where Judge Fallon consolidated and (is in the process of) settling the claims on a multidistrict litigation basis. Canada’s National Report, submitted in conjunction with Stanford’s Globalization of Class Actions Conference last December observes:
Class actions have given rise to a wide variety of claims, including: governmental liability, products liability and mass torts; breach of contract; insolvency proceedings; and, securities, environmental and competition law violations. Whether or not a class is certified, of course, depends on many factors. However, Canadian courts have not singled out a particular kind of claim as being particularly problematic for class action treatment. For example, a number of product liability and mass tort class actions have been certified. Regarding these kinds of claims, the Canadian courts’ approach appears more receptive than their American counterparts.
Friday, February 1, 2008
Merck’s made today’s headlines yet again. The Wall Street Journal Reports that a federal grand jury is investigating whether Merck appropriately handled Vioxx. Here’s a short excerpt:
The grand-jury investigation comes at a time when thousands of plaintiffs are weighing whether to enroll in the pending settlement.
"The potential of an indictment can clearly be an incentive for [Merck] to settle civil cases," said Joseph L. Doherty, of Doherty & Quill, a Boston law firm. Mr. Doherty has one Vioxx client, whom he says he hadn't intended to enroll in the settlement. "The mere potential of an indictment probably won't change too many people's minds about whether to enter the proposed settlement."
In February 2007, the Whitehouse Station, N.J., company disclosed in its regulatory filings that the Justice Department issued a subpoena requesting information relating to the company's research, marketing and sales of Vioxx as part of a federal investigation under criminal statutes.
Merck disclosed in that filing that 31 state attorneys general and the District of Columbia are investigating its sales and marketing of Vioxx. The company said it is cooperating with authorities in all of these investigations.
And the Daily Record in Kansas City, Missouri reported last Wednesday that there are more than 50 Vytorin cases pending against Merck in Missouri’s Eastern and Western districts. Several of these suits seek class action status and damages of over a billion dollars. The theory, according to Benjamin Bertram of Bertman & Graf, is that "By not releasing data from the study . . patients were buying Vytorin when they could have had the same results from Zocor for a third of the costs."
Friday, January 25, 2008
Adam Liptak of the NY Times published a piece on January 22 basically arguing that the duty of loyalty is dead and the Vioxx settlement dealt the final blow. You can find the piece here. He quotes Richard Nagareda arguing that “Speaking of individualized notions of lawyer loyalty is sort of like the mindset of the French military in 1940. The French generals hunkered down in a series of reinforced bunkers along the German border called the Maginot Line, meanwhile, the new world of warfare literally blitzed right past them." The analogy is a particularly good use of the war metaphor in litigation.
Liptak's view is that any change to the duty should come from the legislature or state bar, not individual lawyers and legal developments on the ground. (This type of thing is what the ALI is trying to do with the Project on Aggregate Litigation.) But people that do not like what the existence of inventory cases does to the lawyer-client relationship shouldn't like it any better when the outcome is legislated. See Howie Erichson's post on the aggregate settlement rule here, Nancy Moore's article here for some criticisms.
What appears as a new development is old wine in new bottles. See, for example, Judge Weinstein's classic (and excellent) article Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469 (1994) (which Howard Erichson blogged about here). Samuel Issacharoff and John Fabian Witt have shown this pretty convincingly in The Inevitability of Aggregate Settlement which was published by the Vanderbilt Law Review and can be found on SSRN. That the problem is old doesn't mean that it isn't real, but it does show that its not a problem that can be resolved by process (it doesn't matter if the rule comes from the ALI, the bar, Congress, or the norms of the profession as they develop over time) but a structural problem of the mismatch between mass industrial harms and the tort system.
Saturday, January 19, 2008
On Friday, Judge Fallon held a status conference on the Vioxx settlement. As reported by the Wall Street Journal this morning, the parties announced that roughly 57,100 claimants out of some 60,100 (upwards of 95%) registered their cases by January 15. You may recall that Merck needed only 85% to keep the deal alive. I mentioned in an earlier post that some plaintiffs attorneys filed an emergency motion objecting to the settlement requirement that each attorney recommend the deal to all of their clients. This motion has been withdrawn in light of a "clarification" stating that "Each Enrolling Counsel is expected to exercise his or her independent judgment in the best interest of each client individually before determining whether to recommend enrollment in the Program." Here’s a short excerpt from the Wall Street Journal’s article, "Merck’s Prospects Brighten for Vioxx Settlement:"
Lawyers who contested that provision had filed motions citing ethical obligations to give clients individual counsel that isn't predicated on potential conflicts of interest. They have withdrawn the motions or indicated their intention to do so, according to Kent Jarrell, Merck's Vioxx legal spokesman. "There are no pending motions anywhere" related to the settlement plan, he said.
The attorneys appear to have been mollified by an addition to the deal that says, "Each Enrolling Counsel is expected to exercise his or her independent judgment in the best interest of each client individually before determining whether to recommend enrollment in the Program." Lawyers for both sides said this is a point of clarification but not a substantive change.
The real test of the deal's viability will come next month, when 85% of the 57,100 claimants must enroll their cases by submitting releases and medical records. The deadline is Feb. 29. Mr. Jarrell says Merck, of Whitehouse Station, N.J., expects that threshold will be met and that 3,065 claimants already have begun to enroll.