Mass Tort Litigation Blog

July 2008 Issue of Skadden's Class Action Chronicle

Skadden has posted the July 2008 issue of Class Action Chronicle, which includes several interesting, brief comments by Skadden lawyers, including Communicating Ethically with Class Members, by David Clancy; an interview with Raoul Kennedy on defending class action trials; and an editor's note by Russell Jackson on trends in consumer class actions.

BGS

Anti-Tobacco Activist Dr. Richmond Dies at 91

Bruce Weber of the New York Times reports that Dr. Jules B. Richmond, known for founding Project Head Start and campaigning against the tobacco industry, died Sunday. Here's an excerpt:

In his 80s, [Dr. Richmond] testified in two trials involving flight attendants that secondhand smoke was responsible for their ill health.

One of those cases, a class-action suit involving a flight attendant who developed lung cancer though she had never smoked, led to a $300 million settlement in 1997 that included starting a research institute to study tobacco-related diseases. In the second case, a class action on behalf of Florida smokers, a court awarded $145 billion in punitive damages against six tobacco companies, the largest such award in history until it was overturned by an appeals court.

ECB

Ninth Circuit Overturns Sua Sponte Class Certification

Last week the Ninth Circuit overturned a district court judge's sua sponte class certification in Bonlender v. American Honda Motor Co., Inc., 2008 WL 2873264 (9th Cir. July 22, 2008). Apparently the district court failed to make any Rule 23(a) or (b) findings and did not analyze whether variations in laws of the four states involved defeated Rule 23(b)(3)'s predominance requirement. The Ninth Circuit also reassigned the case to a different district court judge on remand. This is the first time I've heard of a sua sponte class certification and would be interested to know of other instances and their outcomes.

ECB

Part II of Catherine Sharkey on FDA Preemption of State Law Products Liability Claims

Part II of Professor Catherine Sharkey's essay, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, has been posted on Northwestern Colloquy.

BGS

Catherine Sharkey on FDA Preemption of State Law Products Liability Claims

Professor Catherine Sharkey (NYU) has published part I of her essay, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, on Northwestern Colloquy, an extension of the Northwestern University Law Review.  Here's an excerpt:

When such policy predilections undergird preemption decisions—even, as in Riegel, in the narrowest realm of express preemption based upon clear statutory text, let alone in the comparatively unbounded realm of implied preemption—it is time to consider alternative models to that of courts’ being left to their own devices under the guise of imputing congressional motives.

This Essay presents that alternative, building upon my previously articulated “agency reference model,” which provides a framework for courts to decide implied conflict preemption cases by seeking guidance from the relevant federal regulatory agency.  The basic question at the core of implied conflict preemption inquiries is whether or not state common law actions are irreconcilable with, or would stand as an obstacle to, or frustrate, the command of federal regulatory directives and goals. To answer this question, courts need a fine-grained account of the precise regulatory review conducted by the agency and evidence as to its compatibility with state law tort claims.  The agency reference model aims, as a general matter, to facilitate input from federal agencies on these issues.

As the Court moves beyond Riegel and the realm of express preemption to tackle implied conflict preemption in the pharmaceutical context in the upcoming Wyeth v. Levine case,  the time is ripe to consider such a model.  Indeed, where, by definition, statutory text alone will not resolutely decide the implied conflicts in products liability cases, articulation of an analytic framework for where the courts should turn is a pragmatic necessity. Drawing upon some suggestive gestures toward agency input in Riegel, this Essay applies the agency reference model to the concrete setting of the regulation of pharmaceutical drugs and extends the model by specifying searching judicial review of evidence taken from the FDA’s regulatory record (record evidence) to substantiate FDA findings of implied conflicts between state common law failure-to-warn claims and the federal regulation of the safety and efficacy of drugs.

BGS

Kevin Clermont on Litigation Realities

Professor Kevin Clermont (Cornell) has posted his forthcoming article, Litigation Realities Redux, on NELLCO/Bepress.  Here's the abstract:

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.

BGS

FDA Focuses on Hot Peppers in Salmonella Investigation, Lifts Tomato Warning

Article in the Wall Street Journal -- Hot Peppers Are Focus Of Salmonella Probe, by Jane Zhang.  Here's an excerpt:

The Food and Drug Administration declared tomatoes safe to eat, saying it is focusing on hot peppers in its hunt for the source of a salmonella outbreak that has sickened more than 1,200 people in the U.S. and Canada.

The agency has sent investigators to look into a Mexico packer of jalapeño and Serrano peppers, though it can't say that facility is the source of the contamination, said David Acheson, the FDA's associate commissioner for foods, in a conference call with reporters Thursday.

The FDA, which originally blamed tomatoes for the outbreak that started April 10, says it is focusing on jalapeño peppers, which it said have caused illnesses, as well as Serrano peppers, which can be confused with jalapeños.

BGS

Climate Change and the Tort Paradigm

Can notions of corrective justice or distributive justice inform discussions of global warming?  Is tort law helpful as a paradigm in which to resolve global warming concerns?  Professors Eric Posner (Chicago; picture left) and Cass Sunstein (Harvard; picture right) probe these questions and others in a brief, informative article, Global Warming and Social Justice, in the Cato Institute's Regulation (Spring 2008).

BGS

Russell Jackson on Lead Paint Litigation

J. Russell Jackson (Skadden, Arps) has published Products Liability: Lead Paint Litigation in the National Law Journal.  The article discusses the state of lead paint litigation after the Rhode Island Supreme Court's recent reversal of lead-paint nuisance claims.

BGS

Increase in Use of Drug-Coated Stents, Despite Past Safety Concerns

Article in the Wall Street Journal -- Use of Coated Stents on the Rise, by Keith J. Winstein.  Here's an excerpt:

Drug-coated heart stents, whose U.S. sales were hard hit over safety concerns in the past two years, appear to be mounting a comeback.

In June, 73% of stent procedures in the U.S. used a coated stent, according to the Goodroe Data Warehouse unit of VHA Inc., of Irving, Texas, based on a survey of 60 U.S. hospitals. That is up from 62% in December -- which was the lowest level in several years -- and puts coated stents' popularity at levels not seen since February 2007, when a scientific firestorm raged over the devices' safety.

Coronary stents are tiny scaffolds that relieve chest pains by propping open clogged arteries that feed the heart. About a million Americans a year receive stents. The fanciest models are coated with drugs that prevent scar tissue from reclogging an artery and cost about $2,000, making them far more profitable than uncoated, bare-metal stents, which sell for less than half the price.

BGS

Mark Herrmann on Alison Bass's Book, Side Effects

Book review in the Wall Street Journal -- The Plaintiff Was Unhappy, by Mark Herrmann (of Jones Day and the Drug & Device Blog; picture left).  Herrman is critical of the new book, Side Effects: A Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial, by Alison Bass (picture right).  Here's an excerpt of Herrmann's review:

For Ms. Bass the judgment of researchers, together with their data and claims, are untrustworthy if they have received money from drug companies to finance clinical trials. She is particularly hard on a professor of psychiatry from Brown University who has defended Paxil. But if the drug companies didn't pay for such trials, who would? And why shouldn't companies seek advice from the best scientific minds and pay them for their efforts?

Most odd of all, Ms. Bass treats the FDA as a shill for industry—despite its having thoroughly reviewed the suicide matter and required warnings on product labels where it saw fit. She makes the usual complaint that the FDA has reduced its time frame for approving new drugs: "That sprint came with a price tag. A flood of questionable drugs was unleashed on the market, many of which," like Vioxx, "would later have to be recalled."

But she says not a word about how society suffers when the FDA approves new drugs too slowly, depriving patients of life-improving and life-saving medicines. Nor does she mention the studies showing that more rapid drug approval timelines in the European Union have not led to more drug-safety withdrawals. There are two sides to this story; Ms. Bass tells only one.

BGS

Kia Class Action Appealed to Pennsylvania Supreme Court

As reported by the Legal Intelligencer, the Pennsylvania Supreme Court has agreed to hear the following four issues from the Kia class action in Samuel-Bassett v. Kia Motors America, Inc.:

whether the fact-specific claim that the class representative's brake express warranty was breached can be certified and tried on a classwide basis;

whether Kia's due process rights were violated when trial court Judge Mark I. Bernstein entered judgment for the class without requiring individual proof of the breach of the class members' express limited warranty contracts;

whether the trial court's award of a $1 million risk multiplier to attorney fees violated U.S. Supreme Court precedent and if Pennsylvania courts must follow U.S. Supreme Court precedent about federal fee shifting statutes;

whether an attorney fee can be awarded under the federal Magnuson-Moss Warranty Act (MMWA) -- which requires that fee awards be entered as part of the judgment -- when final judgment was entered at the trial court level before the fee award is entered.

Plaintiffs' instituted the action over allegedly defective brakes and were awarded $5.6 million. The Philadelphia Court of Common Pleas also awarded plaintiffs' attorneys $4.13 million in fees.

ECB

California Supreme Court to Review Punitive Damages Award in Ford Rollover Case

Article in Bloomberg.com -- Ford Gets California Review of $82.6 Million Rollover Verdict, by Edvard Pettersson. (H/t to AmLaw Litigation Daily.)  Here's an excerpt:

Ford Motor Co., the second-biggest U.S.-based automaker, will get a review from California's highest court of an $82.6 million verdict stemming from a 2002 rollover crash that left a woman paralyzed.

The California Supreme Court, in a notice posted today on its Web site, granted Ford's petition for review of a California appeals panel's decision not to reduce the $55 million punitive damages part of the verdict or to grant a new trial.

The U.S. Supreme Court last year ordered the appeals court in San Diego to reconsider the punitive damages in light of a decision in a smoker's lawsuit against Altria Group Inc.'s Philip Morris unit that said punitive damages couldn't be based on harm to people not involved in the court case. The appeals court said March 10 there was no evidence the Ford jury based its award on harm to people who weren't part of the lawsuit.

BGS

New Mexico High Court Upholds Multi-State Class Action

The New Mexico Supreme Court issued an opinion recently upholding a 13 state consumer class action against Allstate alleging breach of contract.  The Court found that the state laws in the 13 states were sufficiently similar to New Mexico law that the case could be tried under New Mexico law.  The Court carved out two other states that plaintiffs wanted to include in the suit because of different contract disclosures in those states. 

The slip opinion in Ferrell v. Allstate is available here.  Thanks so Tony Sebok for alerting me to this case!
ADL

Update on Kentucky Fen-Phen Lawyers' Trial

The Wall Street Journal Law Blog reports that Judge William Bertelsman declared a mistrial in the Kentucky lawyers' fen-phen case after the jury reported that they were "hopelessly deadlocked." Here's an excerpt:

Cunningham, Gallion and a third defendant, Melbourne Mills, who was acquitted, were on trial in federal court for allegedly bilking their clients out of $65 million of a $200 million settlement over alleged injuries caused by the diet drug Fen Phen.

But things seem to be looking up for Gallion and Mills. The jury foreman from the first trial, Donald A. Rainone, told the Lexington Herald-Leader that the majority of the jury — including himself — thought that others involved in the 2001 settlement, approved by Boone Circuit Court judge Joseph “Jay” Bamberger, should’ve been charged as well. (Rainone, who declined to name names could’ve been referring to Judge Bamberger, who at the first trial testified to being “embarrassed” by the way he handled the underlying Fen-Phen suit, or Stanley Chesley, the well-known Cincinnati lawyer who negotiated the settlement for a fee of $20 million.)

ECB

Judge Overturns Punitive Damage Award in Prempro Case

Arkansas district judge Bill Wilson overturned an Arkansas jury's punitive damage award of $27 million to Donna Scroggin. The award included $2.75 million in compensatory damages. Judge Wilson based his decision on discarding plaintiff's expert evidence from Dr. Suzanne Parisian, a former FDA official. Scroggin sued Wyeth for inadequately warning her of the increased risk in breast cancer from Prempro. After taking the drug for 11 years, she developed breast cancer and underwent a double mastectomy. The Wall Street Journal story can be found here and the Associated Press story can be found here.

ECB

Canadian Class Action Law

John Beisner, Allison Orr Larsen, and Karl Thompson, all of O'Melveny & Myers, have published an article, Canadian Class Action Law: A Flawed Model for European Class Actions, in the most recent Federalist Society Engage.

BGS

Bhopal 25 Years Later

An article entitled "Decades Later, Toxic Sludge Torments Bhopal" in the New York Times today by Somini Sengupta, discusses the continuing aftermath of the Union Carbide Bhopal disaster.   The failure to clean up the mess left by the disaster is attributed both to the failure of the company and that of Indian government bureaucracy.  The article reports:

Beyond who will pay for the cleanup here, the question is why 425 tons of hazardous waste — some local advocates allege there is a great deal more, buried in the factory grounds — remain here 24 years after the leak?

There are many answers. The company was allowed to dump the land on the government before it was cleaned up. Lawsuits by advocacy groups are still winding their way through the courts. And a network of often lethargic, seemingly apathetic government agencies do not always coordinate with one another.

Local children play in a "pond" filled with chemical sludge.  The ground water tastes of chemicals and corrodes utensils. 

Sungupta reports that Dow Chemical, which bought Union Carbide in 2001, denies successor liability for cleaning up the mess.  The Indian government is split as to what it wants Dow to do, with some arms of the government wanting the company to put money towards cleanup, and others fearing that too much pressure on the company will quell other investments by the company in India. 

ADL

MTLB named a Top 100 Law Blog

Well, congratulations to us.  The Mass Tort Litigation Blog was named a "Top 100 Law and Lawyer Blog" by the Criminal Justice Degrees Guide, along with fourteen other law professor blogs including Lessig, Volokh, Bainbridge, Madisonian, Tax Prof, and other noteworthies.

HME

State Court Rulings Undercut Consumer Arbitration Clauses That Waive Class Actions

Article in the Wall Street Journal -- Recent Rulings Bolster the Case For Class Actions, by Nathan Koppel.  Here's an excerpt:

Widespread efforts by companies to prevent consumers from pursuing class-action suits against them are increasingly getting quashed by state courts.

The New Mexico Supreme Court last week followed several other state courts in holding that a consumer agreement prohibiting class-action suits violates that state's public policy and is "unconscionable." The case concerned Dell Inc.'s requirement that its customers pursue claims through arbitration, and on an individual basis only.

"The opportunity to seek class relief is of particular importance to the enforcement of consumer rights, because it provides a mechanism for the spreading of costs," the court ruled.

BGS