Mass Tort Litigation Blog

Questionable Emails from State Farm to Engineers Assessing Katrina Damage

Article in the Wall Street Journal -- Emails May Help Homeowners In Fight Against State Farm, by the Associated Press.  Here's an excerpt:

Emails sent by officials of an engineering firm that assessed Hurricane Katrina claims suggest that State Farm Insurance Co. wanted engineers to blame damage on flooding so that it could make minimum settlements with policyholders.

The emails, obtained by the Associated Press, indicate that State Farm was threatening to dismiss Raleigh, N.C.-based Forensic Analysis & Engineering Corp. less than two months after Katrina hit on Aug. 29, 2005.

Attorneys for homeowners suing State Farm claim the emails support their argument that the insurer pressured its engineers to alter their reports on storm-damaged homes so that policyholders' claims could be denied.

BGS

Blog Roundup

Beck/Herrman at the Drug and Device Law Blog have an interesting post on Filing Fees Due After Severance For Misjoinder.

Ted Frank at Point of Law has an interesting post on Accutane mass tort litigation for inflammatory bowel disease.

BGS

Public Citizen Asks FDA to Stop Celebrex Ad

Article in the New York Times -- Watchdog Asks FDA to Stop Celebrex Ad, by the Associated Press.  Here's an excerpt:

A consumer advocacy group called on the government Monday to order Pfizer Inc. to stop running a television ad for painkiller Celebrex, calling the ad dangerous and misleading because it downplays the drug's risks.

Public Citizen alleged that the 2 1/2-minute ad asserts, in spite of scientific evidence, that the cardiovascular dangers of Celebrex are no greater than those of any of the other nonsteroidal anti-inflammatory painkillers.

The ad also claims that Celebrex has gastrointestinal benefits over two popular nonprescription painkillers and plays down the risk of bleeding, ulcers and other serious stomach and intestinal problems associated with nonsteroidal anti-inflammatory painkillers, Public Citizen said in its letter to the Food and Drug Administration.

''The ad violates FDA law and regulations because it contains several false or misleading statements that will lead many viewers to underestimate the cardiovascular and gastrointestinal risks of Celebrex and use it in preference to equally effective, safer alternatives,'' Dr. Sidney Wolfe, director of Public Citizen's health research group, wrote in the letter. The letter cited the drugs ibuprofen and naproxen.

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FDA Assesses Risks of Vioxx Successor Drug Arcoxia

Article in the New York Times -- FDA Weighs Risk of Vioxx Successor Drug, by the Associated Press.  Here's an excerpt:

New painkillers in the same class as Vioxx that increase the risk of stroke and heart attack shouldn't be approved if safer alternatives are available, according to federal documents released Tuesday.

That opinion came as a panel of government advisers prepares to weigh Merck & Co. Inc.'s proposed successor to its now-withdrawn Vioxx.

That puts the cardiovascular safety of the drug, called Arcoxia, front and center Thursday, when the panel of Food and Drug Administration advisers discusses whether to make a nonbinding recommendation that the prescription painkiller receive agency approval. Merck voluntarily pulled Vioxx from the market in 2004 after it was linked to a higher risk of stroke and heart attack when compared to dummy pills.

The FDA said its focus in evaluating Merck's application for Arcoxia, and all other drugs from that class, will be specifically on its risks to the cardiovascular system. Any nonsteroidal anti-inflammatory drugs, or NSAIDs, merit approval only if they fill an unmet need for a particular group of patients who have no relatively safer options available, the FDA said in a March 21 memorandum released Tuesday.

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Study Shows Smokers Take More Than A Week Extra Annual Sick Time Than Non-Smokers

Article in the New York Times -- Patterns: Smokers Take More Sick Time Than Nonsmokers, Study Says , by Nicholas Bakalar.  Here's an excerpt:

A study of Swedish workers has found that smokers take more than a week more annual sick leave than nonsmokers, even after adjusting for smokers’ general health and their tendency to take more stressful or physically taxing jobs.

Using data on 14,272 workers ages 16 to 65, researchers studied sick leave reports from a nationwide survey conducted from 1988 to 1991. According to background information in the article, smokers are known to choose more dangerous jobs than nonsmokers and are more likely to be involved in risky activities. Those tendencies, the article said, rather than smoking, might contribute to the greater number of sick days among smokers. But even after statistically controlling for these factors, the large difference between smokers and nonsmokers was evident.

BGS

Judges to Discuss Managing Electronic Discovery at Fordham

As part of the Philip D. Reed Chair Lecture Series, Fordham Law School is hosting a panel of judges to discuss Managing Electronic Discovery on April 17, 2007 at 6 p.m.  Among the judges is Judge Lee Rosenthal of United States District Court for the Southern District of Texas -- see our prior post linking an interview with Judge Rosenthal.

BGS

Roscoe Pound Symposium

Hamline University Law School in St. Paul, Minnesota is hosting a symposium this Friday on A 21st Century Vision for Law as a Profession:  100 Year After Roscoe Pound’s Call for Change in the Administration of Justice.  The idea is to talk about the current state of civil litigation and the legal profession in light of the famous speech Pound delivered a century ago in St. Paul, "The Causes of Popular Dissatisfaction with the Administration of Justice."  I'm giving a presentation called "Roscoe Pound, Popular Dissatisfaction, and Modern Mass Litigation."  I am enjoying the opportunity to think in modern terms about some of the problems Pound identified in 1906, such as the inefficiencies of concurrent jurisdiction, partisan expert witnesses, press reporting on litigation as if it were a sporting event, the effect on public attitudes about law when lawyers and judges treat litigation as a game, and the friction between the individualism of the common law and the collectivism of modern society.

HME

Results-Based Expert Compensation?

Today's New Jersey Law Journal contains a story that's troubling for those of us who haven't already become entirely cynical about expert testimony in tort cases.  The article -- Court Rebuffs Lawyer's Stab at Cutting Expert's Fee in Lost Case (subscription) -- describes the case of Beilin v. Nagel, Rice & Mazie LLP, in which the court required a plaintiff's law firm to pay its medical expert's full fee in a medical malpractice case even though the plaintiff lost the underlying case.  That seems pretty straightforward and unobjectionable.  The part I find troubling is the casualness with which the lawyer apparently assumed that an expert witness should charge different amounts based on the outcome of the case:

"We took a blood bath in this case," Nagel continued.  "And what I do with experts over the course [of] almost 30 years is that where you take a huge loss, experts will virtually always work with you." ...

Nagel says his firm does not seek discounts from experts on losing verdicts.  Rather, expert witnesses who have an ongoing relationship with his firm tend, of their own volition, to increase their bills in the event of a victory and to cut them after a defeat.

Has the legal profession so fully accepted a norm of partisan "experts" that lawyers assume expert witnesses operate on a type of contingent fee?  Wouldn't such an expectation, if disclosed, significantly undermine the expert's credibility?

HME

Ohio Lead Paint Suit

At Point of Law, Walter Olson notes that Ohio has followed Rhode Island in pursuing public nuisance claims against lead paint manufacturers.  Five Ohio cities had previously filed lead paint suits.  Olson emphasizes the separation of powers problem that occurs whenever a state AG uses contingent fee lawyers to pursue litigation, bypassing legislative control over the purse strings.  The Motley Rice law firm represents the Ohio municipal plaintiffs as well as the state of Rhode Island, but according to this April 4 story in the Cleveland Plain Dealer, the Ohio attorney general has not yet decided whether the state will be represented by Motley Rice.

HME

Alleged Plaintiff Counsel Fraud in Connection with Fen-Phen Settlement Money

Interesting article posted on American.com -- Fen-Phen Zen: Some of the lawyers who committed massive fraud are finally being brought to justice, by Ted Frank of the American Enterprise Institute.  Overlawyered.com has a follow-up post on Stanley Chesley's connection.  Here's an excerpt from the Ted Frank article:

It’s the hoariest of Hollywood clichés: adventurers discover a treasure, and then let greed overwhelm them as they try to split the proceeds. Here, three Kentucky lawyers, William J. Gallion, Melbourne Mills Jr., and Shirley A. Cunningham Jr., managed to snag for themselves a share of a $200 million settlement with American Home Products (now known as Wyeth) for 440 clients who claimed to be injured from their use of the diet drug fen-phen. But the lawyers weren’t satisfied with the tens of millions of dollars their contracts with their clients would have paid them, and administered the settlement to leave their clients with only $74 million, a fraction of what they were supposed to receive.

A “charity” was established with $20 million of leftover fund proceeds, with the attorneys hired as directors for $5,000 a month. $27.7 million more of that $74 million may have been intended to be diverted; it was distributed to clients only after the state bar started sniffing around in 2002. Of course, none of this could have happened had the judge not approved the settlement as “fair and equitable”—but Judge Joseph F. Bamberger was himself being paid $5,000 a month from the same charity as a director. Bamberger’s former law partner was paid a $2 million fee even as he was buying a Florida house jointly with the judge. (Bamberger’s defense is that he approved the settlement without reading it. Let’s hear it for judicial oversight.)

Some of the greed is farcical. Cunningham spent a million dollars to endow a chair in his own name at Florida A&M Law School—and negotiated to sit in his own chair for a six-digit salary. A school audit, according to a report in the St. Petersburg Times, says he never did any work. There was possibly even intramural greed: Court filings claim that Cunningham and Gallion at first hid $50 million of the settlement from Mills; Mills himself was sued by his secretary, who unsuccessfully claimed she had been stiffed of a promised Erin-Brockovich-sized share for her role in thinking up the business strategy of advertising for pharmaceutical plaintiffs.

BGS

Trial Over Whether McNeil's Splenda Ads Were Misleading

Article in the Wall Street Journal -- How Sweet It Isn't: Maker of Equal Says Ads For J&J's Splenda Misled; Chemistry Lesson for Jurors, by Avery Johnson.  Here's an excerpt:

A battle between makers of artificial sweeteners stands to turn bitter next week, as a trial begins over what a judge has termed a veritable "sugargate."

The fight pits Merisant Co., the maker of Equal and NutraSweet, against health-care giant Johnson & Johnson, which sells market-leader Splenda. Merisant alleges that a J&J consumer-products unit, McNeil Nutritionals LLC, deliberately confused consumers over whether Splenda is a natural product.

The dispute could prove to be a black eye for J&J at a time when sales tactics at its drugs and medical-device units are already under scrutiny. Revenue from Splenda is a tiny slice of J&J's $53 billion in annual sales, but the case is the first in a string of pending suits that could threaten the reputation of a highly visible product.

BGS

FDA Requests Certain Nausea Drugs Not Be Marketed

Article in the Wall Street Journal -- FDA Targets Unapproved Nausea Drugs, by Jennifer Corbett Dooren.  Here's an excerpt:

The U.S. Food and Drug Administration said Friday that it was asking manufacturers of a certain type of drug to treat nausea and vomiting to stop making and marketing the products.

Specifically, the FDA is asking manufacturers of suppository drug products that contain trimethobenzamide hydrochloride to stop making them because they are not FDA-approved.

The action is part of an ongoing agency effort to go after prescription drugs that do not have FDA approval. Many of the unapproved drugs were on the market before a 1962 law that requires the FDA to evaluate a drug's effectiveness and safety before allowing it on the market. Prior laws required the agency to look mostly at safety.

Deborah Autor, the director of FDA's office of compliance, said the agency estimates there are "hundreds" of prescription drugs on the U.S. market that lack FDA approval.

BGS

Spotlight On: Professor Richard Nagareda

Professor Richard Nagareda is Professor of Law at the Vanderbilt University School of Law, where he is also Director of the Cecil D. Branstetter Litigation & Dispute Resolution Program and holds the Tarkington Chair in Teaching Excellence.

J.D. University of Chicago
A.B. Stanford University

Professor Nagareda's recent scholarship explores the impact of class action lawsuits on the pursuit of legal rights. In 2003, he was appointed as Associate Reporter for the American Law Institute project on Principles of the Law of Aggregate Litigation. He teaches courses on evidence and complex litigation and a seminar on mass torts. Professor Nagareda previously taught on the faculty of the University of Georgia School of Law and as a visitor at the University of Texas School of Law. Before joining the academy, Professor Nagareda clerked for Judge Douglas H. Ginsburg, of the D.C. Circuit, and practiced in the Office of Legal Counsel of the United States Department of Justice and as an associate at Shea & Gardner in Washington, D.C. In 2002 he won the Hartman Award for Excellence in Teaching.

Representative Publications (SSRN author page)

Books

    * Mass Torts in a World of Settlement, University of Chicago Press (forthcoming 2007)

Articles

    * "FDA Preemption: When Tort Law Meets the Administrative State," 1 Journal of Tort Law      (forthcoming 2007)
    * "Aggregation and its Discontents: Class Settlement Pressure, Class-Wide Arbitration, and CAFA," 107 Columbia Law Review (2006)
    * "Restitution, Rent Extraction, and Class Representatives: Implications of Incentive Awards," 53 UCLA Law Review (2006)
    * "The Allocation Problem in Multiple-Claimant Representations," 14 Supreme Court Economic Review 95 (2006) (with Paul Edelman & Charles Silver)
    * "Administering Adequacy in Class Representation," 82 Texas Law Review 287 (2003)
    * "The Preexistence Principle and the Structure of the Class Action," 103 Columbia Law Review 149 (2003)
    * "Autonomy, Peace and Put Options in the Mass Tort Class Action," 115 Harvard Law Review 747 (2002)

BGS

Senate Inquiry Into FDA Oversight of Tainted Pet Food

Article in the L.A. Times -- Senate panel to question FDA response to tainted pet food: Sen. Durbin says the agency should be able to order a recall rather than rely on companies to do so voluntarily, by Chuck Neubauer.  Here's an excerpt:

Seeking ways to ensure that pet food is safe, a Senate subcommittee plans to question Food and Drug Administration officials as soon as Thursday about their response to the contamination that has killed pets and led to the recall of more than 100 brands.

On Saturday, Sen. Richard J. Durbin (D-Ill.), a leading advocate of improving food safety, criticized the federal inspection process for both human and pet food. "The system is broken-down," he said.

Durbin, the second-ranking Democrat in the Senate, called for the hearing last week. He said he would like to see the FDA set national standards and inspection rules for pet food manufacturing facilities.

"The FDA is like a fire department that is only called after the house has burned," Durbin said in a telephone interview.

He also said he would like to see federal law changed to allow the FDA to order a recall of food intended for human or pet consumption rather than rely on companies to do it voluntarily.

The agriculture appropriations subcommittee plans to schedule a hearing for Thursday or sometime next week. Durbin said he expects to hear from FDA Commissioner Dr. Andrew C. von Eschenbach, veterinarians and representatives of the pet food industry.

BGS

Product Recalls

The New York Times has a list and description of recent product recalls and the dangers posed by the products.

BGS

Lee Rosenthal on E-Discovery Rules

The Civil Procedure Prof Blog this week has a useful, in-depth interview with Judge Lee Rosenthal (Chair of the Advisory Committee on Civil Rules) about the recent amendments to the Federal Rules of Civil Procedure concerning electronic discovery.  Among other things, she discusses the importance of early attention to preservation of information, as well as the need to establish discovery protocols to deal with form of production and problems of accessibility.

HME

Harvard Law School, Asbestos, and April Fools

Here's an early April article in the Harvard Law Record:  Ukrainian Institute Leaks Asbestos, Students Sue.

Maybe I've lost my sense of humor.  April Fools issues of student papers are a time-honored tradition, and this piece is typically clever.  But if you know anything about mesothelioma, it's just hard to find it funny.

As law teachers, we know the challenge presented by humor.  I confess I've often played cases for a laugh.  It keeps students engaged, focuses their attention on key points, and builds an environment that encourages participation.  And besides, it's fun.

But there's a cost to laughter that distances students from the human drama in the cases.  I've learned to be careful about deploying laughter when teaching cases that involve serious harm.  For one thing, I work on the assumption that someone among the students has personal experience with the harm.  In any large classroom, someone has lost a parent to cancer, someone has been sexually assaulted, someone has a close friend who suffered a disfiguring accident.  If I'm making light of a case, that person is silently seething.  But more importantly, I want my students to get into the mindset of lawyers who empathize with their clients (and, ideally, who empathize with their clients' adversaries as well, without losing a sense of loyalty to their own clients).

So when I see this funny Harvard Law Record article about "fears that full-fledged mesothelioma has struck members of the law school community," I have to wonder.  What were these student authors thinking when they studied asbestos cases in their law school classes?  Was the notion of massive numbers of people getting sick and dying just an abstraction?  Just a random "fact pattern" as a set-up for issues of proximate causation, product identification, class certification, and reverse auction?  Or were they thinking about a generation of workers who spent years working with an insulation fiber in power plants, naval yards, construction, and elsewhere, only to find out later that the fiber would kill many of them?  Were they thinking about the families these workers left behind?  If that's how you understand asbestos, jokes come harder.

HME

New Class Action Watch Issue by Federalist Society

As noted on Point of Law, the Federalist Society has released a new issue of Class Action Watch, which includes articles on vioxx and asbestos, among other topics.

BGS

Prof. Doug Rendleman on Defendant's Appeal Bond and Punitive Damages Tort Reform

Interesting article posted on SSRN -- A Cap on the Defendant's Appeal Bond?: Punitive Damages Tort Reform, by Professor Doug Rendleman of Washington & Lee School of Law.  Here's the abstract:

The defendant's supersedeas or appeal bond was a servile drudge of appellate procedure until enormous punitive damages verdicts catapulted it out of local courthouses into headlines. From the verdict that exceeded $10 billion in Pennzoil v. Texaco in the 1980s to the punitive damages verdict of $145 billion in Engle v. Liggett Group that was reversed in the summer of 2006, appeal bonds have played a crucial role in huge-verdict litigation. This article's topic - tort reform statutes that cap an appeal bond - stemmed from punitive damages verdicts in smokers' trials against tobacco companies.

Beginning with appellate procedure, the article traces the appeal bond through related topics: federal abstention, bankruptcy, the arguments for and against state tort-reform statutes that cap an appeal bond, and state and federal constitutional doctrines, including the United States Constitution's Full Faith and Credit Clause.

Since constitutions neither compel nor forbid a limited appeal bond, the author resolved that the decision to cap or not to cap resides in the legislature's realm of evaluating public policy. The appeal bond cap's function of facilitating the defendant's entryway to the appellate court whose warranty is a crucial imprimatur for accurate and legitimate judicial decisionmaking convinced the author to commend a cap of $25 to $50 million for a defendant's appeal bond on a jury's verdict for punitive damages.

BGS

Russian Doctors Charged With Doing Glaxo Vaccine Trial Without Consent

Article in the Wall Street Journal -- Doctors Charged Over Trials Of Glaxo Vaccine in Russia, by the Associated Press.  Here's an excerpt:

Prosecutors charged three Russian doctors with endangering people's health following a criminal investigation into vaccine trials organized by United Kingdom pharmaceutical giant GlaxoSmithKline PLC, federal authorities said Monday.

The doctors at a hospital in Volgograd, about 550 miles southeast of Moscow, had participated in the tests for pediatric vaccines called Varilrix and Priorix Tetra beginning in late 2005, the prosecutor general's office said in a statement posted on its Web site.

A total of 112 children between the ages of one and two were involved in the trials, prosecutors said. Officials opened their inquiry when a parent complained to prosecutors after her daughter suffered medical complications, apparently from the vaccine.

Parents were allegedly told by the doctors that the vaccines were routine rather than experimental, prosecutors said.

BGS