Mass Tort Litigation Blog

How We Made Practice Chair: Jay Bhimani and Douglas Fleming of Dechert's Product Liability and Mass Torts Group

ALM law.com article--How We Made Practice Chair: 'Surround Yourself With Smart People,' Say Jay Bhimani and Douglas Fleming of Dechert, by ALM Staff.

Bloomberg Law Video on When Litigation Finance Met Mass Torts

Bloomberg Law has created a video, Billion-Dollar Lawsuits: When Litigation Finance Met Mass Torts.  Professor Linda Mullenix (U. Texas Law) is among the commentators.

 

Concluding the Restatement (Third) of Torts Symposium Issue of Southwestern Law Review

We are delighted that the Southwestern Law Review issue for the spring 2023 symposium, Concluding the Restatement (Third) of Torts, which was co-sponsored by the American Law Institute and Southwestern Law School's Panish Civil Justice Program, is available online.  The issue includes contributions from a remarkable group of presenters at the Symposium, including the following:

• Justice Goodwin Liu of the California Supreme Court;
• Judge Kevin Brazile of the California Superior Court of Los Angeles County, Member of the Judicial Council of California, and former Presiding Judge of the California Superior Court of Los Angeles County;    
• Mark Behrens (Shook, Hardy & Bacon L.L.P.);
• Professor Martha Chamallas (Ohio State Law);
• Jesse Creed (Panish Shea Ravipudi LLP);
• Professor Mark Geistfeld (NYU Law);
• Professor Michael Green (Washington U., St. Louis Law);
• Professor Mark Hall (Wake Forest Law);
• Professor Keith Hylton (Boston U. Law);
• Professor Gregory Keating (USC Law);
• Professor Nina Kohn (Syracuse Law);
• Brian Panish (Panish Shea Ravipudi LLP);
• Professor Philip Peters (Missouri Law);
• Victor Schwartz (Shook, Hardy & Bacon L.L.P.);
• Anthony Sebok (Cardozo Law);
• Ibiere Seck (Seck Law, P.C.).;
• Professor Catherine Sharkey (NYU Law); and
• Professor Kenneth Simons (UC Irvine Law).

Each paper or transcript is individually linked via a post on TortsProf Blog by my Southwestern Law School colleague, Professor Christopher Robinette.  The entire issue (Volume 52, Number 3, Spring 2024) can also be accessed via the Southwestern Law Review's website.  Professor Robinette and I co-authored an introduction for the issue.

U.S. Chamber of Commerce Report on "Nuclear Verdicts" of $10 Million or More

Report on Nuclear Verdicts: An Update on Trends, Causes, and Solutions from the U.S. Chamber of Commerce Institute for Legal Reform.  Report authored by Cary Silverman (Shook, Hardy & Bacon) and Christopher Appel (Shook, Hardy & Bacon).

 

Plaintiffs Move for TRO and Preliminary Injunction to Stop J&J Effort for Talc Bankruptcy

From the New Jersey Law Journal and law.com: Plaintiffs Move to Present Johnson & Johnson's Plans in 3rd Talc Bankruptcy, by Amanda Bronstad.

 

GMU Law & Economics Center Panel on Climate Change Lawsuits & Preemption or Displacement of State Law: Analysis of the Sunoco Cert Petition

George Mason Scalia Law's Law & Economics Center hosted a panel on Climate Change Lawsuits and Preemption or Displacement of State Law: An Analysis of the Sunoco Cert Petition on May 3, 2024.  Phil Goldberg (Shook Hardy), Professor Catherine Sharkey (NYU Law), and Professor John Yoo (UC Berkeley Law) served as panelists.  Professor Donald Kochan (GMU Scalia Law) served as moderator for the panel.

Mass Tort Bankruptcies before SCOTUS on Monday - Harrington v. Purdue Pharma L.P.

Those of you who have been following the opioid lawsuits know that on Monday, December 4, 2023, the Supreme Court will hear oral arguments over whether to allow the billionaire Sackler family behind Purdue Pharma to glom on to Purdue's bankruptcy without declaring bankruptcy itself. 

But do you know what's at stake for mass torts? Professors Abbe Gluck (Yale), Adam Zimmerman (USC Gould), and I explore that question in a new paper forthcoming in Yale Law Journal Forum. As we explain, the case provides a critical opportunity to reflect on what is lost when parties in mass torts find the “behemoth” litigation system unable to bring mass disputes to a close, when they charge multidistrict litigation as a “failure,” and when defendants contend that sprawling lawsuits across national courts have thrown them into unresolvable crisis that only bankruptcy can solve. Harrington v. Purdue Pharma L.P. is just one of many recent examples of extraordinarily unorthodox and creative civil procedure maneuvers—in both the bankruptcy and district courts—that push cases further away from the federal rules and the trial paradigm in the name of settlement.  

Unlike ordinary state and federal trial courts, bankruptcy courts don’t generally lay blame for millions of deaths; they efficiently distribute resources. Petitioners in bankruptcy aren’t called “victims” or “plaintiffs”; they are “creditors” with limited voting rights over the distribution of an estate. Bankruptcy courts don’t develop state tort doctrines. They don’t engage in broad discovery designed to reveal accountability and spur policy reform. They rarely utilize juries or hear testimony from tort victims anxious to have their day in court; instead, testimony tends to focus on the debtor’s financial health. 

Yet diverse defendants—many of whom, notably, are not even in financial distress—from Catholic Diocese and Boy Scout abuse cases, to Johnson & Johnson talc, 3M’s earplugs, Revlon hair straighteners, and many more, have now looked to the bankruptcy court to use its inherent authority to invent new forms of procedure to find a path to global peace. Bankruptcy courts are attractive in part because they possess some powers that, ironically, state and Article III federal courts do not—they are the only American courts that can overcome federalism’s jurisdictional boundaries; they are only courts with the power to commandeer both state and federal litigants into a single forum and halt all other civil litigation no matter what court it is in. They also have stretched their own equitable powers to allow innovative corporate maneuvers, as in Purdue, that cabin liability and preclude future litigation even for entities not in financial trouble. But bankruptcy court is not supposed to be a superpower of a court that trumps all others in public litigation; it is instead, an Article I court designed for efficient, private resolution of claims, centered on capturing private value for private actors–not the elaboration and development of law and public norms.

You can read more here if you're interested.

And if you're wanting to catch up on the issues before SCOTUS next week, check out Charlotte Bismuth & Jonathan Lipson's podcast, Bankruptcy for Billionaires, where the three of us talk about MDL, opioids, and bankruptcy.

 

Mark Behrens on ALI and Bar Groups Needing More Defense Engagement for Balance

Law360 has published, ALI, Bar Groups Need More Defense Engagement for Balance, by Mark Behrens (Co-Chair, Public Policy Group and Partner at Shook, Hardy & Bacon L.L.P.).  Here is an excerpt:

The personal injury plaintiffs bar has an impressive level of participation in organizations that are involved in the development of the law. Many of these attorneys have a genuine interest in improving the law, regardless of any economic self-interest.

But bias and promotion of policies that benefit plaintiffs are present. For various reasons, defense counsel are, in general, not similarly engaged.

The result is a lack of balance that is palpable. The American Law Institute and the Florida Bar's Civil Procedure Rules Committee are examples.

Groups that are involved in the development of the law must do a better job attracting and welcoming lawyers representing diverse corporate defendants and corporate counsel. The defense bar, in turn, must become more active, so that the perspective of civil defendants is not missed, or worse, drowned out.

Balance is critical if groups that have long enjoyed a special place of prestige and influence in the law wish to continue to command widespread respect. Otherwise, they risk being viewed as advocacy groups, akin to the American Association for Justice.

 

Symposium on Concluding the Restatement (Third) of Torts at Southwestern Law School in Los Angeles

On Friday, March 24, the Southwestern Law Review and Southwestern's Panish Civil Justice Program invite you to attend an in-person symposium on Concluding the Restatement (Third) of Torts, co-sponsored by the American Law Institute. The symposium will take place at Southwestern Law School in its historic landmark Bullocks Wilshire building in Los Angeles.

Professor Christopher Robinette and I have been organizing the symposium, and we are excited about the remarkable gathering of nationally leading tort litigation scholars, practitioners, and judges at the symposium. Among the esteemed speakers are four Reporters and fourteen Advisers for the Restatement, three of the top ten most cited torts faculty in the U.S., and one of the top ten most cited civil procedure faculty in the U.S. Speakers also include the leading proponent of tort reform in the U.S., and the leading scholar of feminist legal theory in tort law in the U.S. The symposium will open with remarks by Justice Goodwin Liu, Associate Justice of the California Supreme Court and Member of the Council of the American Law Institute, and Judge Kevin Brazile, Member of the Judicial Council of California and former Presiding Judge of the Superior Court of California for Los Angeles County, will speak on the final panel of the day. The keynote luncheon address will be delivered by Brian Panish, Founding Partner of Panish Shea Boyle Ravipudi LLP, who was named one of the Top 10 Super Lawyers in Southern California for 2023, who recently served as lead plaintiffs' trial counsel in securing a $1.8 billion settlement in the Porter Ranch/Aliso Canyon Gas Well Blowout Litigation, and who represents the family of the cinematographer fatally shot by Alec Baldwin on the movie set of "Rust."

Participants in the symposium include the following:

• Mark Behrens, Co-Chair, Public Policy Group and Partner, Shook, Hardy & Bacon L.L.P.;
• Judge Kevin Brazile, Judge of the Superior Court of Los Angeles County, Member of the Judicial Council of California, and Former Presiding Judge of the Superior Court of Los Angeles County;
• Martha Chamallas, Robert J. Lynn Chair in Law, Ohio State University Moritz College of Law;
• Darby Dickerson, President, Dean, and Professor of Law, Southwestern Law School;
• James Fischer, Professor of Law, Southwestern Law School;
• Nora Freeman Engstrom, Ernest W. McFarland Professor of Law and Co-Director of the Deborah Rhode Center on the Legal Profession, Stanford Law School;
• Mark Geistfeld, Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law;
• Michael Green, Mel and Pam Visiting Professor of Law, Washington University in St. Louis School of Law;
• Mark Hall, Fred and Elizabeth Turnage Professor of Law and Director of the Health Law and Policy Program, Wake Forest University School of Law;
• Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School;
• Keith Hylton, William Fairfield Warren Distinguished Professor of Law, Boston University School of Law;
• Richard Jolly, Associate Professor of Law, Southwestern Law School;
• Gregory Keating, William T. Dales Professor of Law and Philosophy, University of Southern California Gould School of Law;
• Nina A. Kohn, David M. Levy L'48 Professor of Law and Faculty Director of Online Education, Syracuse University College of Law;
• Justice Goodwin Liu, Associate Justice, California Supreme Court;
• Brian Panish, Founding Partner, Panish Shea Boyle Ravipudi LLP;
• Philip G. Peters, Jr., Ruth J. Hulston Professor Emeritus of Law, University of Missouri School of Law;
• Christopher Robinette, Professor of Law, Southwestern Law School;
• Victor Schwartz, Co-Chair, Public Policy Group and Partner, Shook, Hardy & Bacon L.L.P.;
• Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
• Catherine Sharkey, Segal Family Professor Regulatory Law and Policy, New York University School of Law;
• Kenneth Simons, Chancellor's Professor of Law, University of California, Irvine School of Law;
• Byron Stier, Associate Dean for Strategic Initiatives, Director of Civil Litigation and Advocacy Concentration, and Professor of Law, Southwestern Law School;
• David Studdert, Senior Associate Vice Provost for Research, Professor of Health Policy and Professor of Law, Stanford Law School; and
• Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Los Angeles Law School.

Seating is limited; registration is available now at the link above. For those interested, the symposium will offer 6 hours of MCLE credit for attendees.

16th Annual Judicial Symposium on Civil Justice Issues at the Law & Economics Center, George Mason University Scalia Law School

The Law & Economics Center at George Mason University Scalia Law School posted on its webpage videos of all the panels at the 16th Annual Judicial Symposium on Civil Justice Issues.  Panels addressed the following issues:

• Emerging Issues in Civil Justice;
• Emerging and Evergreen Issues in Class Actions;
• Judicial Gatekeeping and Developments Under FRE 702 and in State Rules of Evidence regarding Admissibility of Expert Testimony;
• What Can and Should Jurors Consider When Awarding Damages?;
• What Information Should Flow to Juries?  A Case Study in Drug Device Approvals and 510K Clearances;
• The Evolution of Third-Party Litigation Financing;
• Developments in Public Nuisance and Locality Litigation;
• Bankruptcy Law and Mass Tort Litigation Liabilities; and
• The Economics and Law of Arbitration.

Luke Meier on Achieving True Strict Product Liability (But Nor for Plaintiffs with Fault)

Luke Meier, Professor of Law at Baylor Law School, has posted to SSRN his manuscript, Achieving True Strict Product Liability (But Not for Plaintiffs with Fault).  Here is the abstract:

Under modern tort law, the strict product liability cause of action does not impose true strict liability. This Article suggests that this development can be traced to an analytical difficulty: How to prevent a plaintiff with fault from being able to take advantage of the strict liability standard? Courts have not developed a satisfactory doctrine that both imposes true strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovery on this claim. In the absence of a better idea, courts have (mostly) retreated from a true strict product liability standard. This Article offers a solution to this analytical riddle: A simple change to the current comparative fault jury instructions would allow jurisdictions to impose strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovering on a strict product liability claim. This is all that is necessary for jurisdictions that are inclined to put the “strict” back in the strict product liability cause of action.

Joseph William Singer on Personal Jurisdiction and Choice of Law

Joseph William Singer, Bussey Professor of Law at Harvard Law School, has posted to SSRN his article, Hobbes & Hanging: Personal Jurisdiction v. Choice of Law, 64 Ariz. L. Rev. (forthcoming 2022).  Here is the abstract:

When conduct in one state causes injury in another state, and the law at the place of injury is more favorable to the victim than the law of the place of conduct, what law applies? Where can suit be brought? The traditional answers are that the law of the place of injury applies but that it may be unconstitutional to sue the tortfeasor in the courts at the place of injury because all the tortfeasor's conduct took place outside the forum. Scholars have long criticized this contradiction, and this Article argues that they are right to do so. If we focus on choice-of-law theory and the emerging choice-of-law rules in the Third Restatement of Conflict of Laws, we see that the argument for applying the plaintiff-protecting law of the place of injury is strong. This Article explains and develops that argument, and it gives us reason to reject the idea that the place of injury courts have no personal jurisdiction over the defendant. Hobbes taught us that the first job of government is to protect us from harm at the hands of others and, as long as it is objectively foreseeable that the conduct could have caused harm in the place of injury, there is no fundamental unfairness or constitutional prohibition on applying place of injury law. If that is so, it is irrational not to allow victims to sue at home where they have been injured. Nor is personal jurisdiction unfair to the defendant. It is time to bring choice-of-law doctrine and personal jurisdiction law more in line with each other, and the right way to do so is to adopt an approach that ensures that victims have civil recourse in their home courts against those who stand across the border engaged in acts that intentionally or predictably cause harm there.

 

Bradt, Clopton, and Rave on Dissonance and Distress in Bankruptcy and Mass Torts

Andrew Bradt, Associate Dean, J.D. Curriculum and Teaching, Faculty Director of the Civil Justice Research Initiative, and Professor of Law at UC Berkeley School of Law; Zachary Clopton, Professor of Law, Northwestern University Pritzker School of Law; and D. Theodore Rave, Professor of Law, University of Texas at Austin School of Law have posted to SSRN their article, Dissonance and Distress in Bankruptcy and Mass Torts, Fordham L. Rev. (forthcoming).  Here is the abstract:

This Essay reviews the highly successful 2022 Fordham Law Review symposium on the Intersection of Aggregate Litigation and Bankruptcy. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. It also was successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation.

This Essay makes two principal observations. First, we document the different ways that MDL and bankruptcy players view their institutions. Even if they share similar goals of achieving lasting resolutions to mass tort disputes, they come from different starting points and stress different values. Civil litigators, including those in MDLs, hue to traditional notions of victims, liability, and adversarial adjudication. Bankruptcy lawyers, meanwhile, focus more on creditors, preserving value, and moving on. Second, we demonstrate that criticisms of MDL’s treatment of individual plaintiffs—both in the symposium and outside it—are being leveraged by defense-side interests seeking to promote bankruptcy as a means of resolving mass torts. Taken together, these two observations reveal a dissonance between the seemingly pro-plaintiff criticisms of MDL and the seemingly pro-defendant use of those criticisms to denigrate MDL in favor of bankruptcy.

Linda Mullenix on Assessing the Impact of The Principles of the Law of Aggregate Litigation

Linda Mullenix, Morris & Rita Altas Chair in Advocacy at University of Texas at Austin School of Law, has posted to SSRN her book chapter, Aggregationists at the Barricades: Assessing the Impact of The Principles of the Law of Aggregate Litigation, in American Law Institute -- A Centennial History (Andrew S. Gold and Robert W. Gordon eds., Oxford University Press forthcoming 2023 ).  Here is the abstract:

In 2004 the American Law Institute began work on THE PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION, finally published in 2010. The Principles was addressed to legislatures, administrative agencies, attorneys, private actors, and courts concerning multiparty, multiforum litigation. A purpose of the Principles was to suggest best practices for these institutions and actors.

This essay describes the Principles in the historical context when complex litigation began to dominate federal dockets in the 1980s. It discusses the emergence of a cohort of aggregationists dedicated to liberalizing federal procedure to support, enhance, and encourage the speedy and efficient resolution of complex litigation. The Principles built upon a longstanding ALI concern with the burgeoning and rapidly changing judicial crisis relating to the resolution of complex litigation. The Principles suggested substantial changes in existing class action jurisprudence and judicial case management, recommending more robust embrace of liberalized aggregative procedures. Initially, the Reporters advocated for a root-and-branch revision but, as the essay documents, the final Principles reflected more modest compromises. The essay thoroughly canvasses the proposed recommendations and the subsequent embrace of the proposals.

This essay concludes that while the Principles project has left its mark, courts and legislative bodies still have not addressed or resolved many issues the Principles identified. Since publication most judges seem comfortable with prevailing jurisprudence and not especially interested in rewriting procedural doctrine governing complex litigation. The Principles has not resulted in a root-and-branch revision of aggregate procedure. Rather, reception of the Principles suggests that a more incremental approach to legal reform has prevailed, and the efforts of the avid aggregationists must await another day.

Apart from questions whether the Principles fulfilled its stated purpose, this essay explores fundamental questions about the Institute’s role in moving the law in certain directions based on the goals of committed actors. On one interpretation, the Principles represented a well-intended effort to provide judges with guidance “where there was little established law.” On another, perhaps more problematic view, the Principles represented the desires of actors who, frustrated by judicial resistance to aggregate litigation, used ALI auspices to change the law in a desired direction. These questions go to the heart of the ALI’s role in guiding attorneys, judges, and rulemaking bodies in furtherance of civil justice. Whether the liberalization of aggregate procedure is a desirable goal is a normative question that the ALI Principles project assumed but did not address.

Catherine Sharkey on Common Law Tort as Transitional Regulatory Regime and Climate Change Litigation

Catherine Sharkey, Segal Family Professor of Regulatory Law and Policy at NYU School of Law, has posted to SSRN her book chapter, Common Law Tort as a Transitional Regulatory Regime: A New Perspective on Climate Change Litigation, in Climate Liberalism: Perspectives on Liberty, Property, and Pollution (Palgrave: Jonathan Adler ed.) (2022 Forthcoming).  Here is the abstract:

This book chapter explores how common law (state or federal) tort law evolves to fill regulatory voids. Particularly in areas that pose emerging, and incompletely understood, health and safety risks, common law tort liability holds out the potential for a dynamic regulatory response, one that creates incentives to develop additional information about potential risks and stimulates innovation to mitigate and/or adapt to these risks. In this temporal model, common law tort plays an essential role in transition, allowing for experimentation with various risk-minimization methods and remedial approaches until optimal approaches emerge which could then be enshrined in more uniform regulations.

The chapter identifies and assesses this dynamic, information-forcing role for common law tort liability in the realm of climate change litigation. In this model, common law tort, rather than a relic of the past, emerges as relevant to the future of environmental risk regulation, as indeed superior to legislation and/or regulation in terms of addressing newly-emergent risks. Moreover, the model suggests that the interaction between common law tort and federal statutes and regulations will remain interactive and dynamic over time.

The chapter then uses climate change litigation as a case study to shed light on the expansion of common law public nuisance to fill a regulatory void in this area, revealing the modern relevance of common law tort in environmental law. The chapter concludes with a preliminary evaluation of the extent to which experimentation among states and municipalities with regard to various adaptation measures fits the optimal model of common law tort in transition, with a final gesture toward forces at play that may stymie the common law’s evolutionary impulses.

Rabin and Engstrom on No-Fault Compensation for Tobacco and Opioid Victims

Professors Robert Rabin and Nora Freeman Engstrom of Stanford Law School have posted to SSRN their article, The Road Not Taken: Perspectives on No-Fault Compensation for Tobacco and Opioid Victims, 70 DePaul L. Rev. 395 (2021).  Here is the abstract:

Cigarettes and prescription painkillers have both killed millions of Americans and diminished the lives of tens of millions more. This wreckage has generated waves of prolonged litigation—and, in fact, the evolution of this litigation has been strikingly similar. In both tobacco and in opioids, lawsuits were initially filed by individual victims of defendants’ tortious conduct. But in both instances, one-off suits saw virtually no success, foundering on vast resource disparities and a widespread perception that plaintiffs (smokers on the one hand, “addicts” on the other) were partly or mostly to blame. In time, plaintiffs adapted. States and cities took the reins, and these public actors initiated their own suits. This handoff (from private plaintiffs to public ones) succeeded in many respects. But it relegated individual victims to the sidelines and—crucially—consigned their quest for compensation to the back burner.

In this Essay, we zero in on this compensation question. We explore the fact compensatory claims got pushed aside and note that these claims have generally remained on the periphery. We further observe that, after the tort system left individual victims conspicuously empty-handed, support might have coalesced around the creation of a no-fault compensation scheme for tobacco or opioid-related harms. Yet, discussion of such a scheme has been quiet—and concrete action toward the creation of such a system has been notably non-existent. Why? We chalk this omission up to three stubborn realities. First, the will and capacity to strike a political compromise of this magnitude is lacking. Second, existing no-fault schemes have mixed scorecards, at best. And third, both tobacco and opioid victims pose particular challenges, as a perception that these individuals have contributed to their own harm has undermined any prospect of compensation through a no-fault scheme, just as surely as it dimmed plaintiffs’ prospects for recovery through tort.

Law & Contemporary Problems Issue In Memoriam: Professor Francis McGovern

The journal, Law & Contemporary Problems, has published an an issue In Memoriam: Francis McGovern, entitled, "Innovations in Complex Litigation and Settlement."  Published authors include the following: Lynn Baker (Texas Law); David Bernick (Kirkland & Ellis); Stephen Burbank (Penn Law); Elizabeth Cabraser (Lieff Cabraser); Sean Farhang (Berkeley Law); Brian Fitzpatrick (Vanderbilt Law); Gary Friedman; Myriam Gilles (Cardozo Law); Deborah Hensler (Stanford Law); Samuel Issacharoff (NYU Law); Robert Klonoff (Lewis & Clark Law); David Levi (Duke Law); Richard Marcus (UC Hastings Law); Troy McKenzie (NYU Law); Senior Judge Dan Polster (N.D. Ohio); D. Theodore Rave (Texas Law); Judith Resnick (Yale Law); Christopher Seeger (Seeger Weiss); Charles Silver (Texas Law); and former Judge Vaughn Walker (N.D. Cal.).  Professor McGovern is also credited as co-author for an article for which he had the original idea and was very involved in assembling the central argument.  

Lytton on Guns and New York's Recently Amended Public Nuisance Statute

Professor Tim Lytton has published an article in The Conversation on New York's recently amended public nuisance statute. Here's a link!

The Failed Roundup Gambit

*First published as Multidistrict Litigation and Bayer's Roundup Gambit in Westlaw Today/Reuters Legal

Bayer and the plaintiffs’ lawyers suing it over its popular weed killer, Roundup, are playing a high-stakes, billion-dollar chess match. Like most corporate defendants in Bayer’s position, it wants lawsuits to end.

But finality eludes Bayer for two reasons.

First, non-Hodgkin’s lymphoma, the disease several juries linked to Roundup’s active ingredient glyphosate, doesn’t develop overnight. It takes a while, often 10-15 years after exposure. Yanking Roundup off the market today would still leave Bayer with at least another decade of litigation.

Second, Roundup makes Bayer lots of money. Sticking a warning label on it would hurt the company’s bottom line. Why would consumers risk cancer to kill dandelions?  

Enter Bayer’s elaborate gambit.

Step one: preemption.

Bayer accurately predicted that the Ninth Circuit (despite a relatively conservative panel) would reject its argument that the Federal Insecticide, Fungicide, and Rodenticide Act, fondly known as FIFRA, preempts claims that it failed to warn weed exterminators about the risks of non-Hodgkin lymphoma. In May, the majority in Hardeman v. Bayer ruled that Mr. Hardeman’s failure-to-warn claim was “equivalent to” and “fully consistent with” FIFRA and thus not preempted under the Supreme Court’s 2005 precedent, Bates v. Dow Agrosciences LLC.

While it awaited the Hardeman decision, Bayer worked to manufacture a circuit split elsewhere that might tempt the Supreme Court to weigh in and reconsider Bates. For that, it tapped Dr. John Carson, a Georgia plaintiff who alleged a type of cancer that science has not linked to Roundup, malignant fibrous histiocytoma. Siding with Bayer, the Southern District of Georgia dismissed Dr. Carson’s failure-to-warn claim because FIFRA preempted it. Bayer won.

But that short-term win undermined its overarching goal. So, Bayer sacrificed by entering into a settlement of sorts with Dr. Carson: for $100,000, he would appeal the dismissal and the preemption ruling. Winning on preemption before the Eleventh Circuit would increase the likelihood of Supreme Court review, at least by a little, despite Bayer’s sly pay-to-appeal scheme.

The possibility of a circuit split and complete preemption serves another purpose, too. It acts like a sword of Damocles endangering plaintiffs who haven’t yet settled, haven’t yet sued, or haven’t yet developed non-Hodgkin lymphoma despite using Roundup. Plaintiffs won all three jury trials to date, notwithstanding a bifurcated trial structure that tends to favor defendants. Compared with the mature asbestos cases that led to the derailed Amchem settlement, the Roundup suits are barely entering grade school. But plaintiffs’ fortunes can turn.

Step two: certify a futures class.

Pressing the slimmest of advantages (after all, the Supreme Court grants certiorari in only around 3.4% of civil cases per year), Bayer teamed up with the same amenable plaintiffs’ counsel whose attempt at certifying a futures class last summer ended in a swirl of controversy and a withdrawn motion. Presenting a second, then a third futures class proposal, they purport to shelter three groups of class members from preemption’s peril: (1) people diagnosed with non-Hodgkin lymphoma after Roundup exposure that haven’t hired lawyers yet; (2) people who have used Roundup but haven’t yet developed non-Hodgkin lymphoma, and (3) all of their spouses, parents, and dependent children—collectively, the “derivative claimants.”

But the preemption refuge and the benefits last a mere four years. And they come at a steep price. In exchange for notice, medical help, and some streamlined compensation, class members must give up punitive damages and medical monitoring claims, as well as bind themselves (with little wiggle room) to a seven-member science panel’s verdict about whether glyphosate can cause non-Hodgkin lymphoma.

After the four-year détente lifts, few plaintiff’s lawyers would litigate Roundup claims in the face of such weighty impediments.

For the gambit to work, the judge must certify the class. But Judge Vince Chhabria is no pawn and he declined to do so. His brief six-page opinion followed a day-long hearing transparently livestreamed in Brady-bunch boxes for a clamoring public to see.

In both the hearing and the opinion, Judge Chhabria challenged the settlement’s upside: Four years of medical monitoring for a disease with a 10-15 year latency period is “far less meaningful than the attorneys suggest.” Those with later diagnoses “will not be able to request compensation from the fund,” he wrote.

As Judge Chhabria pointed out, problems with the proposed futures class abound, including, most centrally, the constitutionality and utility of notice and the hamstrung tort claims. For plaintiffs, the downsides require “major sacrifices,” he explained.

First, on notice, what value does the settlement add that a well-incentivized plaintiffs’ bar lacks? The proposal allocates up to $55 million for settlement administration and notice costs for five months. Yet, over two years ago, the Wall Street Journal reported that plaintiffs’ lawyers spent an estimated $77.8 million to advertise Roundup lawsuits for eight months.

Setting aside the constitutional impossibilities of notifying future spouses and unborn children, what people need is meaningful information at a meaningful time. Noise fills the world. Our bandwidth is limited.

A Roundup user without cancer is far more likely to mindlessly scroll through whatever notices pop up than to engage and investigate. Someone newly diagnosed with non-Hodgkin lymphoma, however, is hungrily Googling for information and answers.

Second, consider what plaintiffs bestow upon Bayer by giving up punitive damages—absolution. But the alleged bad behavior continues. Imagine fining attempted murderers and freeing them to continue their spree. Roundup still lines store shelves and if it does what plaintiffs contend, it will endanger public health for decades to come.

Third, class members must litigate under the umbrella of the science-panel’s findings. “But the reason Bayer wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials,” wrote Judge Chhabria.

It is possible that the parties will attempt yet another class settlement geared toward only those Roundup users who have non-Hodgkin lymphoma but no lawyer. Still, what is the upside to the court? Frame it in terms of class superiority: Is certifying a class better than the other ways courts can fairly and efficiently resolve plaintiffs’ claims? Judge Chhabria already faces a scrum of centralized lawsuits. And certifying a class will not end disputes.

Despite a settlement class in the NFL Concussion cases, litigation continually bubbles up, most recently in terms of Black players alleging class settlements show bias. Despite a settlement class in BP’s Deepwater Horizon Oil Spill, over 6,300 clean-up workers have continued to sue over latent injuries like blood-related cancers from chemical dispersants through the settlement’s back-end litigation option. Despite a settlement class in Diet Drugs, 50,000 would-be class members opted out, claims overwhelmed the class, and litigation before the same judge continues today—21 years later.

There is no neat end game in sight for Bayer or the courts, even as it debuts its five-point plan to reassure stockholders. Remanding cases once common discovery ends and taking up the old saw of trial may sound antiquated in the face of futuristic procedures that promise the next best thing. Yet, it has worked for centuries. Perhaps it’s just that the weeds always seem greener on the other side.

George Mason Law & Economics Center Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions

The Law & Economics Center at George Mason University Scalia Law School is hosting on online Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions from 10:00 a.m. to 2:55 p.m. EST on Friday, February 19, 2021.  Registration is free.  Here is the agenda:

10:00 – 10:05 am Opening Remarks

Donald J. Kochan, Professor of Law and Deputy Executive Director, Law & Economics Center
George Mason University Antonin Scalia Law School

10:05 – 11:05 am
Panel 1: An Update on the Ongoing Debate over Nationwide Injunctions, Especially with a Change in Presidential Administration
Samuel L. Bray, Professor of Law, The Notre Dame University Law School
Scott A. Keller, Former Solicitor General
State of Texas (2015-2018)
Amy Marshak, Senior Counsel, Institute for Constitutional Advocacy and Protection and Adjunct Professor of Law, Georgetown University Law Center
Michael T. Morley, Associate Professor, Florida State University College of Law
Moderator: Trevor N. McFadden, District Judge, US District Court for the District of Columbia

11:15 am – 12:15 pm
Panel 2: Developments in Punitive Damages
Eric D. Holland, Owner and Partner, Holland Law Firm, LLC
Evan M. Tager, Partner, Mayer Brown
W. Kip Viscusi, University Distinguished Professor of Law, Economics, and Management
Co-Director, PhD Program in Law and Economics
Vanderbilt Law School
Navan Ward, Principal, Beasley Allen
Moderator: Harris L Hartz, Circuit Judge, US Court of Appeals for the Tenth Circuit

12:45 – 1:45 pm
Panel 3: The Controversy over Trends in High Damage Awards: A Discussion on Causes and Consequences
David Ball, Trial Consultant, Malekpour & Ball Litigation Strategy
Mark A. Behrens, Co-Chair, Public Policy Practice Group, Shook Hardy & Bacon
John H. Beisner, Partner, Litigation, Mass Torts, Insurance, and Consumer Litigation
Skadden, Arps, Slate, Meagher & Flom LLP
Laura Frank Sedrish, Partner, Jacoby & Meyers
Moderator: Brock A. Swartzle, Judge, Michigan Court of Appeals

1:55 – 2:55 pm
Panel 4: Issues in Documenting and Calculating Damages: The Debate Over Medical Financing and “Phantom” Damages
Nicholas C. Johnson, Of Counsel, Cohen Milstein Sellers & Toll PLLC
Drew LaFramboise, Partner, Ashcraft & Gerel
Lee Mickus, Partner, Evans Fears & Schuttert LLP
Caitlin F. Saladrigas, Partner, Holland & Knight
Moderator: William C. Mims, Justice, Virginia Supreme Court