Tuesday, December 12, 2006
So says The American Lawyer, sort of anyway.
The article attributes the more aggressive approach of defendants in more recent mass tort litigations to more favorable legislation and courts in key states like Mississippi and Texas. While I'm certain that played a part, I think some of it may have simply been a recognition that the approach taken in (for instance) the diet drug litigation simply couldn't be followed again, at least in the cases in question, where a very clear line could be drawn between serious and less-serious claims, or where the cases had significant causation problems. The nature of the products (life-saving versus lifestyle, for instance) was probably in play as well.
Put another way, the changes in the key jurisdictions surely made it easier for the defendants to take a more aggressive approach. But that approach may well have been the same even in the absence of reforms. Not every mass tort could be the diet drug litigation, either ten years ago or ten years from now. It's pretty early to say the cases are done.
(Disclosure: I do a small amount of consulting for some of the pharmaceutical companies referenced in the article and am involved in some of the litigation referenced.)