Monday, June 18, 2007
It was a good week for the paint industry. Last week, both the New Jersey Supreme Court and the Missouri Supreme Court handed down decisions rejecting public nuisance claims against lead paint manufacturers.
The New Jersey Supreme Court decision provides a lesson in differing perspectives on public policy torts. The majority emphasized the separation of powers concern (that the state legislature had passed a statute concerning lead paint, and it would overstep the judiciary's bounds to permit a liability theory that the legislature had not embraced) and the slippery slope argument (that to permit plaintiffs' public nuisance claim would be to create an unbounded tort). The dissent (Chief Justice James Zazzali, in his final week on the bench, joined by Justice Virginia Long) emphasized the seriousness of the lead paint problem and the need for common law doctrines to evolve to achieve justice in a changing world.
After the 1998 tobacco settlement with the state attorneys general, some people predicted an era of massive litigation by states and municipalities against harm-causing industries. We've seen some such litigation -- notably over handguns and lead paint -- but for the most part it hasn't had much traction. Rhode Island's lead paint suit resulted in a plaintiff victory at the trial level, although the appeal to the Rhode Island Supreme Court pending. Last week's Missouri Supreme Court decision, with the New Jersey decision several days later, leaves the Rhode Island case looking more like an anomaly than a front-runner.
Wednesday, June 13, 2007
On September 7, 2007, Charleston Law School will host a conference: Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. WIlliams.
Speakers and moderators at the conference include Theodore Boutrous (Gibson Dunn), Elizabeth Cabraser (Lieff, Cabraser), Robin Conrad (U.S. Chamber of Commerce), Theodore Eisenberg (Cornell), Anthony J. Franze (Arnold & Porter), Andrew Frey (Mayer Brown), Murray Garnick (Arnold & Porter), Lauren Rosenblum Goldman (Mayer Brown), John Gotanda (Villanova), Laura Hines (Kansas), Keith Hylton (Boston), John Mulderig (Altria), Robert Peck (Center for Constitutional Litigation), Terry E. Richardson (Richardson, Patrick), Steven Rissman (Altria), Christopher Robinette (Widener), Michael Rustad (Suffolk), Sheila Scheuerman (Charleston), Victor Schwartz (Shook, Hardy), Anthony Sebok (Brooklyn), Neil Vidmar (Duke), and Judge William Wilkins (Fourth Circuit). I will be moderating a panel on "The Relationship Between Punitive Damages and Class Actions."
Tuesday, June 12, 2007
Article in the Wall Street Journal -- High Court Rules Against Philip Morris, by Jess Bravin and Mark H. Anderson. Here's an excerpt:
The Supreme Court rejected a gambit by Philip Morris Cos. to move a consumer lawsuit out of state court and into the federal system, a defeat for the tobacco company, which will now have its case heard in front of a presumably less-friendly Arkansas state judge....
The tobacco case, a proposed class-action filed in Arkansas state court, alleged that Philip Morris misleadingly advertised "light" cigarettes as delivering less tar and nicotine than they actually did. Philip Morris, a unit of Altria Group Inc., sought to remove the case to federal court, which many corporations perceive as more friendly to business interests.
Since 1999, Altria has succeeded in having a large number of pending cases switched from state courts to federal courts, where some have been dismissed. Some of the biggest verdicts against Philip Morris and other tobacco companies have arisen out of losses in state courts.
In this case, Philip Morris invoked a federal law dating from 1812 that allows removal to federal court when a private party is acting under government direction. Philip Morris argued that it was following a test prescribed by the Federal Trade Commission determining the tar and nicotine content of the light cigarettes. Removal to federal court requires more than "simply complying with the law," Justice Stephen Breyer wrote for the court.
Sunday, June 10, 2007
Article in the New York Times -- Supplier Expands Beef Recall Over Concerns of E. Coli Contamination, by the Associated Press. Here's an excerpt:
A meat supplier has expanded a ground beef recall to include about 5.7 million pounds of fresh and frozen meat because they may be contaminated with E. coli.
David Goldman, acting administrator of the federal Food Safety and Inspection Service, announced on Saturday that the recall would be expanded to include products with sell-by dates from April 6 to April 20. The beef was distributed by United Food Group LLC, based in California.
Mr. Goldman said that none of the latest batch of suspect beef was in stores now because the product would be well past its expiration date, but that consumers might still have some of the meat at home.
“It is important for consumers to look in their freezers,” he said.
The meat has been blamed for an E. coli outbreak in the Western states that resulted in 14 illnesses, spanning April 25 through May 18. All the patients have recovered.
Thursday, June 7, 2007
Interesting article in the New York Times -- Some Small Law Firms Find Strength in Numbers, by Karen Donovan. One wonders if the boutique-law-firm networks could be of use to small plaintiffs firms in coordinating their efforts in a mass tort. Here's an excerpt:
Steven Spielvogel, a lanky 40-year-old lawyer who, with his angular looks and jet black hair, resembles Ric Ocasek of the 1980s band the Cars, has been on something of a tour of his own.
He has been promoting a network that connects small law firms around the country and the world. The idea is to give the better small law firms a way to compete with the big national and global firms.
Since starting the International Network of Boutique Law Firms, in 2004, Mr. Spielvogel has been knocking on doors and setting up lunches to persuade the lawyers at small firms with prestigious résumés to start a local chapter
“The network is designed to supplement pre-existing legal relationships,” he said. “It’s not about paying a fee to get listed in a directory: the standards are very rigorous and you can feel a certain level of comfort.”
The network so far has 250 law firms as members, and 16 international strategic partners, including Bolivia’s oldest law firm and Mexico’s oldest and largest firm.
Wednesday, June 6, 2007
Judge Eldon Fallon (E.D. La.), who is overseeing the Vioxx MDL, yesterday ordered remittitur in the Barnett case. Last year, the plaintiff won a verdict of $51 million ($50 million compensatory plus $1 million punitive). The court found the amount excessive and, last August, ordered a new trial on damages. Yesterday, the court amended its order. At plaintiff's request, the court granted remittitur (obviously it's unusual for a plaintiff to ask for remittitur, but in this case the alternative was a new trial on damages). Specifically, the court ordered a new trial unless the plaintiff accepted a reduced damage award of $1.6 million ($600,000 compensatory plus $1 million punitive); the judge determined that $600,000 was the highest amount a jury could reasonably have awarded for compensatory damages. Here's the AP story in the Houston Chronicle -- Vioxx Plaintiff Can Get Damages or Retry.
Monday, June 4, 2007
Jim Beck and Mark Herrmann at the Drug and Device Law Blog have a wonderful post called Anatomy of a Mass Tort. It's among the best short descriptions of mass tort litigation I've seen. They describe the now-predictable life cycle of a mass tort: triggering event, client-gathering, class suits, individual suits, peripheral litigation, MDL, statewide centralization, wholesale defenses, eve-of-limitations filings, choice of law battles, trial themes, and settlement. What I like best is that they tell the story with just the right level of cynicism. They assume that both sides respond to incentives, but they make no assumption concerning whether the underlying claims are either meritorious or non-meritorious. Indeed, one of the most interesting (and troubling) things about mass tort litigation -- this, I think, is the main point of their post -- is the extent to which the story line looks the same regardless of whether the litigation involves a dangerous product and liability-worthy conduct. I'm not saying (and neither are they) that results in mass tort litigation bear no relation to the truth. Rather, they're making a subtler and more important point -- that once a trigger occurs, mass tort litigation takes on a life of its own.
Friday, June 1, 2007
It continues to amaze me how much confusion exists over the ethical obligations of lawyers when handling non-class aggregate settlements. The ABA's partly to blame. The model rule (RPC 1.8(g)) is sound as far as it goes, but there's a lot that it doesn't explain. And the most recent ABA ethics opinion expounding on the rule (ABA Formal Op. 06-438) obscures as much as it explains.
I returned today from the ABA National Conference on Professional Responsibility in Chicago, where I chaired a panel on the ethics of aggregate settlements. The other panelists were New York mass torts lawyer Paul Rheingold and Los Angeles ethics lawyer Diane Karpman. We addressed four issues: (1) the definition of "aggregate settlement" for purposes of the aggregate settlement rule (RPC 1.8(g), DR 5-106, Cal. 3-310, etc.); (2) the extent of disclosure required for informed consent; (3) whether advance consent should be permitted; and (4) restrictions on future practice in connection with settlement. Every one of the issues engendered significant debate among the panelists and serious questions from the audience. The one thing the panelists could all agree on, however, was dissatisfaction with Op. 06-438.
But mostly, I was struck by the extent to which even the most basic questions (like the definition of "aggregate settlement" or the appropriate disclosure) remain topics of debate and uncertainty. No wonder mass tort lawyers worry so much about aggregate settlements. Even when they take careful steps to obtain each client's informed consent to the deal, they have to worry about whether their steps will fail to satisfy someone else's interpretation of the rule.
The wrongful death case of Plunkett v. Merck simply won't end. The first Vioxx case to go to trial in federal court, it resulted in a hung jury in 2005. At the retrial in 2006, Merck won an important defense victory. But two days ago, Judge Fallon granted a new trial based on the revelation that one of Merck's expert witnesses had misrepresented his qualifications. Here's an excerpt from the story in the Houston Chronicle by Janet McConnaughey of AP -- Judge Orders New Vioxx Trial:
A federal judge has ordered a third trial in a lawsuit by a woman who blamed Merck & Co.'s painkiller Vioxx for the heart attack that killed her husband. A cardiologist who testified for Merck misrepresented his qualifications in the second trial last year, U.S. District Judge Eldon Fallon ruled. Jurors in that trial ruled in favor of Merck and against Evelyn Irvin Plunkett, whose first husband, Richard "Dickie" Irvin, died of a heart attack after taking Vioxx for less than a month.