Mass Tort Litigation Blog

The Hon. Sam C. Pointer, Jr. (1934-2008)

Judge Sam Pointer passed away on March 15.  In his thirty years as a federal judge in Alabama, he made his mark in both civil rights and complex litigation.  Readers of this blog may know him best for his work as the MDL judge in the silicone gel breast implant litigation.  In that litigation, he took the path-breaking step of appointing a national science panel of court-appointed experts to weigh in on the question of medical causation.  Judge Pointer served as chair of the Advisory Committee on Civil Rules, and was a major author of the Manual for Complex Litigation.  Here's the Washington Post obituary and an announcement from Lightfoot, Franklin & White, where Judge Pointer practiced after he left the bench in 2000.

HME

Conference on Mass Litigation

ALI-ABA is running a conference on mass litigation in Charleston, South Carolina, from May 29-31, 2008 with a strong faculty of judges, practitioners, and academics.  Some agenda items of interest to mass tort lawyers include sessions on Negotiating Mass Litigation with Sheila Birnbaum and Joe Rice, bellwether tort trials with James Stengel, the ALI Aggregate Litigation project with Drew Berry, CAFA with Birnbaum and Elizabeth Cabraser, the mass litigation attorney-client relationship with Richard Nagareda, various sessions with Judges Rosenthal, Rothstein, and Scheindlin, and brief litigation updates on contact lens solution, MTBE, tobacco, auto, lead paint, headsets, and wireless telephones.

HME

Second Circuit Rejects New York Gun Lawsuit

The Second Circuit today decided City of New York v. Beretta USA Corp. in favor of the defendant gun suppliers.  Here's an excerpt from the N.Y. Times article:

A federal appeals court dismissed New York City’s blanket lawsuit against the gun industry on Wednesday, ruling that a relatively new federal law protects gunmakers against third-party litigation.

The appellate ruling killed off — once and for all, perhaps — legal efforts by the city to charge gunmakers and distributors with knowingly flooding illicit, underground markets with their weapons. ....

In December 2005, Judge Jack B. Weinstein, of United States District Court in Brooklyn, allowed the suit to move forward despite protests by gunmakers like Beretta U.S.A., Browning Arms, Colt Manufacturing, Glock and Smith & Wesson, which pointed to a federal law passed two months earlier in October. That law, the Protection of Lawful Commerce in Arms Act, banned all third-party suits against the gun industry except for those in which a plaintiff could prove that gunmakers had violated other state or federal statutes in their sales and marketing practices.

Mayor Michael R. Bloomberg’s administration argued that the gun manufacturers, by failing to monitor retail dealers closely enough, allowed guns to end up in the hands of criminals. As a result, the manufacturers created a “condition that negatively affects the public health or safety,” the city said and, thus, violated New York State’s public nuisance law.

The Second Circuit held that the New York's nuisance statute did not constitute a permissible exception under the federal Protection of Lawful Commerce in Arms Act.  The court therefore reversed Judge Weinstein's denial of the defendants' motion to dismiss.  Judge Katzmann, dissenting, would have certified to the New York Court of Appeals the question of whether New York's nuisance statute is applicable to the sale and marketing of firearms.

HME

Verdict Upheld Against Port Authority in 1993 WTC Bombings

John Sullivan, writing for the New York Times, reports that the NY Court of Appeals has upheld the verdict.  He writes:

“The evidence placed before the jury entitled it to conclude that the defendant’s negligence was, if not gross, dramatically out of the ordinary,” the court found. “The documentary proof persuasively demonstrated that the defendant, years in advance of the bombing, had been repeatedly placed on notice of a gaping vulnerability in its subgrade parking facilities rendering its premises susceptible to a potentially catastrophic car bombing; indeed, defendant was repeatedly advised, not simply to the vulnerability, but as to the precise manner in which it could with little practical difficulty be exploited to devastating effect.”....

....The Port Authority said it originally faced 575 lawsuits stemming from the 1993 attack and over the years all but about 50 have been resolved. Mr. Coleman said he did not know how much the authority has paid to settle the cases so far.

ADL

 

Sebok's Book Review of Nagareda's Mass Torts in a World of Settlement

Professor Anthony Sebok (Brooklyn, pictured left) has published his book review, What Do We Talk About When We Talk About Mass Torts?, 106 Mich. L. Rev. 1213 (2008) Download sebok.pdf , which reviews Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement (2007).

BGS

Congress, FDA & Foreign Inspections

Article in the Wall Street Journal -- Congress, FDA Debate Foreign Inspections, by Alicia Mundy.  Here's an excerpt:

Democrats in Congress and the Food and Drug Administration are in a standoff over giving the agency $70 million to bolster foreign drug inspections, which have come under fire amid deaths linked to tainted blood-thinning drugs from China.

Members of Congress have blasted the FDA for lapses in inspections of Chinese drug factories since contaminated heparin from China has been linked to as many as 81 deaths.

"Quite frankly, I am establishing that you don't have the resources and you can't do your job," House Energy and Commerce Committee Chairman John Dingell, (D., Mich) told FDA Commissioner Andrew von Eschenbach at a contentious hearing Tuesday. He called FDA oversight of imported drugs "indefensible."

But Congress appears unlikely to give new money this year to boost overseas inspections, said several lawmakers and staffers, unless the FDA asks for it.

BGS

DePaul Symposium Issue on Challenges to the Attorney-Client Relationship

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).

BGS

Accutane Verdict of $10.6 Million

A New Jersey jury hit Roche with a $10.6 million verdict in favor of a Utah woman who claimed that the acne medication Accutane caused her inflammatory bowel disease.  The jury, finding that Roche provided inadequate labeling, awarded plaintiff Kamie Kendall $78,500 for past medical expenses plus $10.5 million in unspecified compensation.  Here's a brief story in the Star-Ledger.  Pharmalot notes that this verdict is Roche's third Accutane trial loss (another in New Jersey last June, and one in Florida last fall), and that the company faces about 400 Accutane suits.

HME

Moss on Electronic Discovery: Separating the Wheat from the Chaff

Scott Moss (Colorado) has just posted an economic analysis on electronic discovery on SSRN entitled: "Litigation Discovery Cannot be Optimal but Could be Better: The Economics of Improving Discovery Timing in  the Digital Age." (Duke Law Review, forthcoming 2008).  Here is the abstract:

Cases are won and lost in discovery, yet discovery draws too little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes - which, unlike trials, occur in most cases. The growth of e-discovery - imprudent emails or lingering deleted files - makes cost issues increasingly salient, but the e-discovery rules just reiterate existing cost/benefit proportionality limits. Proportionality limits are topic of broad consensus among civil procedure scholars and economists, but this Article deems them impossible to apply effectively. Proportionality limits fail to curb discovery excess while also disallowing discovery meritorious cases need, resulting in bad cases dominating good ones. This Article acknowledges proportionality's flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons: how can courts compare discovery value and cost before parties gather the evidence? Like other arguments that procedural rulings are never truly separate from case merits, this Article notes how discovery has more probative value in the closest cases - yet case merits remain uncertain in discovery, when courts cannot yet examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts act as if all cases warrant similar discovery. In this pooling equilibrium, ruling the same on all cases in the pool, regardless of merit, is courts' best strategy but a sub-optimal one, yielding too much discovery in low-merit cases, too little in higher-merit ones. Thus, the quest for better discovery has disappointed not because of bad rules or decisions, but because courts and parties are stuck in a pooling equilibrium with information-timing circularity: optimal evidence-gathering requires merits analysis, which requires evidence-gathering.

One answer is to defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning pooling equilibria into separating equilibria. Summary judgment can be this separation: cases going to trial, post-summary judgment, likely have 50/50 odds - better than most. Costly evidence has more value in 50/50 cases, where juries struggle to reach verdicts, than in weaker or stronger cases. Noone yet has proposed post-summary judgment discovery to redress the costly discovery dilemma (summary judgment typically follows discovery), but high-cost evidence can be an exception: cases surviving summary judgment are close calls warranting more fact-gathering, so some costly discovery regularly denied now should be allowed after summary judgment. Thus, the existing debate is too focused on discovery quantity; it should focus more on discovery timing. Existing rules give courts discretion to use this proposal, but a new rule could minimize the risk of misusing the proposal to deny more discovery. This Article concludes by briefly noting how economic analyses must consider the details and information timing of the litigation process.

Electronic discovery is often critical in mass tort cases and judges have come up with some creative solutions such as sampling.  I'm not sure I buy the idea that judges can separate the wheat from the chaff before plaintiffs have developed their case, which requires discovery.  Nevertheless, Moss's insights are worth thinking about. 

ADL

Toxic Plastics

Concerns about bisphenol-a, or BPA,a chemical used to make hard plastics (such as reusable water bottles, some baby bottles, food containers, liners for canned foods) are growing.  Chemicals from these plastics, especially when heated, leach into food and human bodies.  The effect and toxicity of these chemicals are unclear, but the concern is enough that some retailers are demanding products made without them.  According to the New York Times, Wal-Mart has said that it will withdraw baby products made with BPA. The current data is based on animal studies: "Rat pups exposed to BPA, through injection or food, showed changes in mammary and prostate tissue, suggesting a potential cancer risk. In some tests of female mice, exposure appeared to accelerate puberty."  The article reports that "Canada has begun a study to monitor BPA exposure among about 5,000 people to assess any danger to adults."

Another mass tort in the offing?  A justification for adopting the precautionary principle perhaps?  Some scholars have argued in favor of expanding standing doctrine to include "precautionary standing."  See Jonathan Remy Nash, Standing and the Precautionary Principle, 108 Columbia L. Rev. (2008) also available on SSRN.  Others have argued that the precautionary principle is paralyzing.  See Cass Sunstein and Robert W. Hahn, The Precautionary Principle as a Basis for Decision-Making, The Economists Voice (2005) also available on SSRN.  For an analysis by a brilliant academic see Douglas Kysar, It Might Have Been: Risk, Precaution and Opportunity Costs,  22 Journal of Land Use & Environmental Law 1 (2006) available on SSRN.

ADL

The Chief on Law & Policy

Chief Justice John Roberts served as a moot court judge at Columbia last week.  One of the issues in the case was whether an issue class action could be certified.

The Chief Justice's questions to the students (as reported by Adam Liptak of the New York Times) may have given us some insights into his view of class actions:

“A class action is a dramatic departure from the normal rules of litigation,” he said. He asked one student whether the practical impact of allowing a class action was not merely to grant the plaintiff leverage in settlement talks.

Discussing a federal law that requires states to run medical programs “consistent with efficiency, economy and quality of care,” Chief Justice Roberts sounded exasperated.

“How in the world is a judge supposed to apply those terms — economy, efficiency?” he asked. “Those sound like legislative judgments.”

I wonder if this means that he espouses the "blackmail" theory of class actions.  (For an excellent refutation of that theory, see Charles Silver, "We're Scared to Death:" Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357 (2003) - you can also find a version of the same paper here on SSRN).

ADL

WSJ on Tobacco Regulation by FDA

Editorial in the Wall Street Journal -- Cynicism and Big Tobacco.  Here's an excerpt:

Congress wants to give regulators more authority over the tobacco industry – so what else is new? The surprise is that currently there are no plans to give it to the Environmental Protection Agency. Surely cigarette smoke qualifies as a dangerous pollutant.

Not that Congress needs any ideas, but handing off tobacco to the EPA makes about as much sense as its nearly completed pass to the Food and Drug Administration. A bill expected to be voted on soon would impose new restrictions on marketing, raise cigarette taxes, and police the ingredients in tobacco products, including nicotine levels. Any reckless FDA policy is bound to be popular, and sure enough, the bill has 220 co-sponsors in the House and 54 in the Senate, including all three Presidential contenders.

This is all phenomenally cynical, even for Congress. Since the 1964 Surgeon General's report, the health consequences of this hazardous if legal product have been ubiquitous, which no doubt accounts for the 58% plunge in smoking among U.S. adults. The FDA tobacco gambit is explainable only because the politicians have dumped public health for public revenue.

BGS

Richard Nagareda on Taylor v. Sturgell

Richard Nagareda (Vanderbilt) has recorded a SCOTUScast on Taylor v. Sturgell, the nonparty preclusion case argued before the United States Supreme Court last week.  Howard Erichson commented on the case last week in a post on this blog.

BGS

Grisham's Latest

What do mass tort scholars do in their down time?  ... Well, read a mass tort novel, of course.  John Grisham's latest book, The Appeal, involves a toxic tort of groundwater pollution that injures many in a Mississippi town -- sort of Grisham thriller meets Jonathan Harr's A Civil Action.  The plot steers off into pursuing issues of judicial elections, but along the way there are plenty of mass tort themes, involving David vs. Goliath plaintiff-defendant litigation, class actions, and the implications of a trial verdict for case inventories.  I'm in the middle and having fun, as I have reading Grisham since The Firm came out back in the early 90s.

For the last few years, I've been gradually assembling a "mass tort movie library" of DVDs, which I lend out to students in my mass tort litigation class, and I use a clip of the film version of A Civil Action in class.  I've been mulling over incorporating excerpts from novels in my class, as well -- Grisham's King of Torts also sounds many mass tort themes.  Part of the appeal of studying mass tort litigation is the variety of perspectives available -- not only substantive and procedural, but also factual and fictionalized.

BGS

Is mass tort litigation a depressed market?

In an interview with the Houston Chronicle, Texas legal recruiter Susan Pye answered questions about today's legal job market.  When asked what areas are hot, she mentioned energy law and transactional work.  She was not so sanguine, however, about mass tort work:

Q: Which lawyers are not in demand?

A: Toxic tort and other mass tort litigators. That's a depressed market.

Tort reform really impacted these lawyers. In most cases they don't have portable business, if they had it, it was tied to one mass tort, like asbestos cases.

Some may be more senior, experienced lawyers, too. That's not helpful, the more experienced lawyers without portable business who did mass tort, product liability cases like asbestos cases, those are largely shut down.

In litigation, she said, "mostly commercial cases are left."

HME

Drug Companies Push for Easier Off-Label Rules

This morning's Wall Street Journal reports that several major drug companies are pushing the FDA to relax its requirements for off-label drug use.  Here's an excerpt:

Ten major drug companies, including Pfizer Inc.; Bayer Corp., the U.S. unit of Bayer AG; AstraZeneca PLC; and Johnson & Johnson have formed a coalition to push for looser restrictions on off-label marketing. They will submit their arguments Friday to the Food and Drug Administration, which has been soliciting comments on its proposed off-label promotion guidelines. They are represented by former FDA Chief Counsel Daniel Troy, who is working with public-relations giant APCO Worldwide Inc.

Mr. Troy's group includes patient-advocacy organizations the National Alliance on Mental Illness and the National Organization for Rare Disorders. The group supports the ability of companies to disseminate articles from peer-reviewed medical journals to physicians and hospitals to inform them of new conditions for which drugs already on the market could be used but which the FDA hasn't formally approved.

The FDA said it isn't loosening the rules for industry, but clarifying them. Randall Lutter, the agency's deputy commissioner for policy, said the guidelines mandate full disclosure of any conflict of interest by journal authors in articles used in off-label promotion.

The push for off-label changes came just as the Journal of the American Medical Association suggested in two reports that Merck & Co. played down the potential risk to Alzheimer's patients of heart attack from its now-withdrawn painkiller Vioxx, and said the company had ghostwritten many academic articles favorable to that drug.

Drug-industry worries about new rules and a chilly climate in Washington were reflected at a conference here Thursday. More than 60% of participants polled during the annual conference sponsored by drug-marketing magazine DTC Perspectives said they think Congress may move to place limits on television advertising by pharmaceutical companies. Drug makers spend about $5.4 billion annually on TV ads, according to Nielsen Monitor-Plus.

ECB

Class Action Watch Issue

The Federalist Society has posted the March 2008 issue of Class Action Watch.  Articles include the following:

Cy Pres Settlements by Theodore H. Frank (AEI)

The Supreme Court Rejects "Scheme Liability" in Securities Class Actions by Larry Obhof (Kirkland & Ellis)

Dukes, et al. v. Wal-Mart Stores, Inc.: Ninth Circuit Affirms Largest Employment Discrimination Class in History by John Beisner, Evelyn Becker & Karl Thompson (all of O'Melveny & Myers)

The Problem of Class Action Tolling in Mass Tort Personal Injury Litigation by Jessica Davidson Miller & Geoffrey Wyatt (both of O'Melveny & Myers)

FACTA Truncation: Applicable to the Digital World? by Shawn J. Organ (Jones Day)

Silberblatt v. Morgan Stanley: Class Action Court Protects Unnamed Class Members by Jack Park (Spec. Asst. for Inspector Gen. for Corp. for Nat'l & Community Service)

"Reverse Bifurcation" Approach to Punitive Damages Trials in West Virgina by Mark A. Behrens & Christopher E. Appel (both of Shook Hardy)

BGS

Federal Judicial Center Releases its Latest Report on CAFA

Emery Lee and Tom Willging, of the Federal Judicial Center, have released their latest report on CAFA’s Impact on the Federal Courts. Here’s a link to the report. Here is an excerpt of their most important findings (p. 1-2):

• There has been a dramatic increase in the number of diversity class actions filed as original proceedings in the federal courts in the post-CAFA period. The pre-CAFA average of such filings per month was 11.9; the post-CAFA average was 34.5 per month (see Figures 2 and 3 in Appendix B).
• Diversity class action removals increased in the immediate post-CAFA period over their 2004 levels but have been trending downward since 2005. In the last months of the study period, diversity removals were at levels similar to those in the pre-CAFA period (see Figures 2 and 3 in Appendix B).
• The increase in diversity class action original proceedings was widespread. Diversity class action original proceedings increased overall in the districts in eleven of the twelve circuits, when we compared filings for calendar years 2002 and 2003 with those for the last two years of the study period, July 1, 2005–June 30, 2007 (see Figure 4 in Appendix B). Diversity class action original proceedings also increased between the two time periods in all but one of the districts with substantial numbers of diversity class actions during the study period (see Figures 5 and 6 in Appendix B).
• The results we found for diversity class action removals were more varied. When we compared removals in calendar years 2002 and 2003 with those in the last two years of the study period, we found that they decreased in the last two years of the study period in five circuits (see Figure 4). However, when we analyzed the districts separately, we found that most of the districts with substantial numbers of diversity class actions experienced some increase in diversity removals (see Figures 5 and 6 in Appendix B).
• The increase in diversity class actions is due largely to increases in the numbers of contracts, consumer protection/fraud, and torts-property damage class actions being filed in or removed to federal court in the post-CAFA period. Torts personal injury cases have not increased in the post-CAFA period (see Figure 7 in Appendix B).

Many thanks to Tom and Emery for their continued efforts on this project. It’s been a wonderful resource for mass tort scholars and provides much needed empirical data on class litigation.

ECB

Taylor v. Sturgell Oral Argument

The Supreme Court heard oral argument today in Taylor v. Sturgell, a fascinating case involving nonparty preclusion.  Having read the transcript of the oral argument, I'd be surprised if the Court affirmed, but I would not be surprised if the Court remanded to give the lower courts an opportunity to consider the issue of collusion.

Here's the case in a nutshell:  Greg Herrick filed a FOIA request for information about an antique aircraft.  When the request was rejected, he filed suit in the District of Wyoming, and lost.  Subsequently, Brent Taylor made a FOIA request for the same info.  When his request was rejected, he sued in the District of Columbia.  The district court and the D.C. Circuit held that Taylor was claim precluded.  Noting that Taylor was the director of an antique aircraft association of which Herrick was a member, and that they were represented by the same counsel, the D.C. Circuit held that Taylor was "virtually represented" by Herrick in the first suit.

Taylor argued that, with limited exceptions, a nonparty is not bound by a judgment.  The government and manufacturer argued that they should not have to relitigate the FOIA issue, given the close association between Herrick and Taylor.  Along with other proceduralists, I co-wrote an amicus brief supporting Taylor's position, emphasizing not only the integrity of the law of judgments, but also the law of joinder and representative litigation.  The law offers numerous ways to bind multiple persons to a judgment, but such joinder or representation must be accomplished ex ante and with appropriate procedural protections, not ex post through the backdoor of preclusion.

At today's oral argument, Justice Ginsburg's and Justice Scalia's questions repeatedly emphasized the individual nature of the FOIA right and the fact that Herrick's case was not collective litigation.  Justice Scalia brought up the apt comparison to class actions, although he made the error of emphasizing that individuals may withdraw from a class action (a point that should carry little or no weight in this case, because had the FOIA litigation been a class action, it would have been a Rule 23(b)(2) non-opt-out class action).  But Justice Ginsburg saved the day by pointing out that under Rule 23 any settlement must be approved by the judge.

When counsel for the government argued that preclusion is necessary in order to avoid vexatious FOIA litigation, Justice Scalia said, "Counsel, you have described for us a thousand-headed monster of litigation, and your proposal for a solution is to cut off one eyebrow. ... It seems to me that, you know, in order to cut off an eyebrow, I'm not willing to make a whole lot of incursion upon our traditional rules of who's bound by a lawsuit."

Mass tort litigation involves numerous plaintiffs with similar interests, often represented by the same counsel or lawyers working closely together.  A broad approach to nonparty preclusion could significantly affect the dynamics of such litigation.  Respondents' counsel in Taylor, however, made it clear that they were not seeking a broad rewriting of the rules of preclusion.  Justice Ginsburg got no serious resistance when she said, "[L]et's say you have a whole busload of people who get injured in the same accident.  Plaintiff one sues and loses.  Two sues and loses.  Three is not precluded.  Four is not precluded."

Some of the Justices seemed concerned that there may have been collusion between Herrick and Taylor, at least in the sense that Taylor may have been pursuing the FOIA case on behalf of Herrick after Herrick lost on his first try.  The Justices were clearly unwilling to reach a conclusion unsupported by the record (Justice Souter:  "In effect, you're asking us to infer a finding of fact, and we're not the trial court.").  But they were warmer to the possibility of remand.  Justice Ginsburg suggested, "It could be remanded.  It could be remanded with instructions that the collusion question is still open."  When Chief Justice Roberts asked petitioner's counsel on rebuttal whether the Court should remand for consideration of whether there was an agreement, counsel responded, "Yes.  The court could remand it and then the district court would have the discretion to allow the case to go forward as it saw fit."  I have to imagine that such a remand would be an appealing option to a number of the Justices, although if so, I hope it comes with a clear statement reaffirming the principle that nonparties are not bound by judgments except in very narrow circumstances.

HME

Fen-Phen Attorneys' Fee Award

It looks as though payday has finally arrived for fen-phen attorneys. After nearly a decade of litigation, Judge Harvey Bartle III awarded plaintiffs’ lawyers from over 70 law firms $412 million for their efforts in litigating the Diet Drugs Product Liability Litigation. According to the National Law Journal, plaintiffs attorneys logged more than 578,000 hours (the equivalent of 24,000 days, or almost 66 years) of work on the litigation. As you may recall, the fen-phen settlement involved back-end opt out rights and a settlement that has endured at least seven amendments. Experts initially estimated 35,500 claims but just the back-end opt-outs exceeded 60,000 fen-phen users. Notable opinions on the settlement can be found at 2000 U.S. Dist. LEXIS 12275; 369 F.3d 293, 303 (3d Cir. 2004); and 226 F.R.D. 498 (E.D. Pa. 2005).

ECB