Mass Tort Litigation Blog

Unilever Recalls Lipton Milk Tea After Finding Melamine

Article on cnn.com -- Manufacturing giant recalls melamine tainted tea.  Here's an excerpt:

Unilever is recalling four batches of Lipton Milk Tea sold in Hong Kong and Macau after finding traces of the chemical melamine in the product, the company said Tuesday.

Unilever Hong Kong Limited described it as a precautionary measure and said no other Lipton Milk Tea Powder products were affected.

The announcement came a day after British confectioner Cadbury said it has recalled all of its Chinese-made candy products after preliminary tests showed they contained trace amounts of melamine. Some of the products were exported to Taiwan, Hong Kong, Australia, Nauru and Christmas Island, according to the company.

They are the latest companies to get caught up in China's tainted milk scandal, which began earlier this month when authorities discovered melamine in powdered infant formula.

Contaminated milk has sickened nearly 53,000 children in China, killing four.

BGS

Suffolk Law School Conference on Successful Strategies for Jury Trials

On Friday, October 24, 2008, Suffolk Law School will host a conference, Successful Strategies for Jury Trials.  Speakers include Professors George Conk (Fordham), Valerie Hans (Cornell), Michael Rustad (Suffolk), Linda Sandstrom Simard (Suffolk), Gabriel Teninbaum (Suffolk), and Neil Vidmar (Duke).   

Professor Conk will deliver the Luncheon Keynote Address on "The Vioxx Story."

BGS

Drug and Device Law on Levine

Beck and Hermann have posted a link to and summary of the defendant's reply brief in Wyeth v. Levine.  Click here for the post.

ADL

Daubert Hearings at the Certification Stage

From the ABA Litigation Section news report, via Federal Civil Practice Bulletin:

In what appears to be part of a trend across the country, a federal trial court in West Virginia has ordered a full, evidentiary Daubert hearing as part of deciding a motion on whether to certify a class in a pending  action.

The U.S. District Court for the Southern District of West  Virginia’s ruling in Rhodes  v. E.I. DuPont de Nemours and Co. [PDF] follows a number of decisions in federal circuits to allow, or even require, a rigorous analysis of the facts underlying a motion for class certification, although that analysis may stray into the merits of the suit.

ADL

Duke Toxicology Conference

Duke University is hosting a conference this Friday, Sept. 26, 2008, on The Toxico-Legal Interface: Use of Toxicological Science in Regulation and Litigation.  Co-sponsored by Duke Law School and Duke's Integrated Toxicology and Environmental Health Program, the agenda includes a number of toxicologists and risk analysts alongside law professors Francis McGovern, Joseph Sanders, Jonathan Wiener, and me.  I will speak about how scientific evidence affects settlement dynamics and trial structures (particularly phased trials) in mass toxic torts.  The event is open to the public.

HME

NTSB Team Investigating L.A. Metrolink Crash

More on the Metrolink Train Crash from the L.A. Times -- NTSB team sorting out what happened in Metrolink crash, by Robert J. Lopez.  Here's an excerpt:

Engineer Robert M. Sanchez pulled Metrolink 111 out of the Chatsworth station and was rolling north at 54 mph. About a mile later, he entered a restricted speed zone and throttled down to 42 mph.

Just ahead, on his right side, was a red light. It was a warning to stop so that an oncoming Union Pacific freight train could move off the main track and onto a siding. But Sanchez sped past the light and barreled over a switch mechanism that was supposed to guide the other train onto the side rail, according to federal investigators.

A quarter mile later, along a sharp curve in the tracks, the two trains collided at a combined speed of 83 mph. Sanchez never hit his brakes.

BGS

Class Actions in Australia and Finland

Peter Spender of Australian National University has written an article titled "The Class Action as Sheriff: Private Law Enforcement and remedial Roulette," which discusses class actions in Australia, Canada, and the U.S. Mikko Valimaki, of Helsinki University of Technology, has written a piece titled "Introducing Class Actions in Finland - Lawmaking without Economic Analysis." Here's the abstract of Peter Spender's piece:

In this essay I will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle.

The compensation principle requires that plaintiffs should as nearly as possible be awarded a sum of money that will place them in the same position as if they had not suffered a wrong. The principle has occupied a central position in modern private law to provide standing to plaintiffs and to limit the powers of courts. Yet commentators such as Berryman argue that the compensation principle is in decline and suffering a death by a thousand cuts. Some of the deepest cuts have been inflicted by the modern class action.

I will examine this argument by reference to class actions in Australia, Canada, and the US, using the vitamins antitrust litigation in those jurisdictions as a case study.

My overall hypothesis is that whilst the compensatory principle is being assailed by the calls for the class action to deter corporate misconduct, the principle still acts as a moral compass. Corrective justice has not entirely yielded to instrumentalism, but the current autonomous, individualistic, and substantive law model of corrective justice under private law needs to adjust to group procedural justice as practiced in law firms and in the courts.

And here's the abstract for Mikko Valimaki's article:

Finnish Parliament accepted in February 2007 a new law on class actions (literally group actions), which entered into force 1 October, 2008. The legislative process was particularly slow. Finland has been preparing a law on class actions since the early 1990s and this was - depending on the criteria of counting - the fourth try. Some fifteen years ago the idea of class actions was something new in Europe. Time passes quickly however, and the new Finnish law cannot be described as radical by any meaning of the word. Many European countries have changed their existing procedural codes and enacted new laws to make class action litigation possible.

The new Finnish class action law differs from the mainstream in fundamentally limiting its scope of application. Although the law is titled as being a general law on class actions, it only applies to consumer cases where the government-funded Consumer Ombudsman is acting as the lead counsel. This was not the case in the beginning. Years ago, the first law proposals had much broader scope of application but as the lobbying between potential defendants (the industry) and plaintiffs (consumer agencies etc.) became polarized, it became evident that there can be either a major compromise or no law at all.

This article analyses the Finnish lawmaking process from comparative and economic policy viewpoints. First, the article discusses how did the Finnish legislative process end up with a certain outcome. It is argue that neither well-founded economic nor empirical arguments had any relevant role. Instead, partisan claims on class action cases in the United States and their potential implications to companies were used as a strong argument to restrict the law's scope of application. The official preparatory documents did not present any study on experiences from the United States. There was non-partisan empirical evidence of the use of class actions only from Sweden.

Second, this article compares the claims presented in the Finnish lawmaking process to studies and legislative work made in other countries. The article concludes that the most of the claims were based on partisan opinions, not on well-founded studies. The examples of other Nordic countries however show that there is nothing uncommon in implementing class actions in a Northern European legal system. Misuse of class actions is not likely due to e.g. fundamental differences in the substance of accident law and the rules regarding the indemnification of legal costs in litigation.

Third, this article argues that the main reason why the Finnish class action law failed was the dynamics of the legislative process. The idea of reaching a consensus in preparatory work before a law is submitted to the parliament means that if certain interest groups are able to form a strong opposition, the law may never enter the parliament no matter of the substantial arguments. The result is that an unknown number of cases are not litigated at all in Finland because the scope of application of the law is restricted. Regulatory authorities have no resources to provide as extensive preventive threat as would a complementary private mechanism.

ECB

Wyeth v. Levine Background

Adam Liptak's article in the New York Times today describes the key people involved in Wyeth v. Levine, the pre-emption case that could change the face of mass torts. Here's a short excerpt:

In the spring of 2000, suffering from a migraine, Ms. Levine visited a clinic near here for a treatment she had received many times: Demerol for the pain and Wyeth’s drug Phenergan for nausea.

“Nothing wrong with either drug,” Ms. Levine said. “They’re both safe when given the right way.”

But if Phenergan is exposed to arterial blood, it causes swift and irreversible gangrene. For that reason, it is typically administered by intramuscular injection. According to Ms. Levine’s lawyers, using an intravenous drip is almost entirely safe as well.

This time, though, a physician’s assistant used a third method. She injected the drug into what she thought was a vein, a method known as “IV push.” But the assistant apparently missed.

In the following weeks, Ms. Levine’s hand and forearm turned purple and then black, and they were amputated in two stages.

ECB

New Tort Books from Cambridge University Press

Cambridge University Press has published two tort books of interest: Toxic Torts: Science, Law and the Possibility of Justice, by Professor Carl F. Cranor (UC Riverside); and Tort Wars, by Joel Levin (Levin & Associates).

BGS

Metrolink Train Crash in Los Angeles

Los Angeles suffered one of the worst train crashes in American history on Friday, leading to approximately 25 dead and more than 100 injured.  A Metrolink commuter train rammed head-on into a Union Pacific freight train.  Initially, Metrolink blamed the accident on the deceased Metrolink engineer, whom Metrolink said had ignored the signal not to proceed.  Oddly, this blame came before the complete investigation has been completed.

Interestingly, the Metrolink engineer was employed by an independent contractor, Veolia Transportation, Inc.  As a result, some have wondered if Metrolink was seeking to avoid liability by blaming the injury on the engineer, claiming that Metrolink and the state were not responsible for the independent contractor's conduct.  Not so fast.  Although it's true that liability is not generally traced from acts of independent contractors to those hiring them, the law does generally allow liability to continue where the independent contractor appears to be an employee, or where the independent contractor's work is controlled by the hiring entity.  Here, I would imagine the engineer appeared to everyone as a Metrolink employee, and the public assumed as much.  In addition, I would imagine Metrolink closely controlled the work of an independent contractor who is engineer on its trains.  Cases under the California Tort Claims Act also have recognized, particularly in cases involving public defenders as independent contractors, that those hired by the state may still trigger liability for the state where the state treated them as employees and controlled their work.

A separate issue of interest is the question of positive train control, which allows trains to be monitored and controlled remotely using GPS.  This technology, which though not currently widely used, is in increasing use across the country and would slow and stop trains if they appeared to be heading toward a crash.  Metrolink's failure to use this technology might be another basis for a negligence claim.

For more on the disaster, see this article in the Wall Street Journal -- Crash Highlights Risk on the Rails, by Peter Sanders, Alex Roth, and Andy Pasztor.  I'm quoted in the article.

BGS

Klass on State Tort Law

Alexandra Klass (Minnesota) has just posted an article on SSRN titled "Tort Experiments in the Laboratories of Democracy."  The abstract is below:

This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called federalism revolution of the 1990s to limit Congressional authority in the name of states' rights, it was simultaneously cutting back on the ability of states to provide their citizens with tort rights and remedies through preemption doctrine and due process limits on punitive damages. This Article explores these trends in the states, Congress, and the Supreme Court and concludes that part of the problem in federal-state relations in the area of tort law is that Congress and the Supreme Court have shifted from a private law to a public law view of tort that does not give sufficient attention to the important private law goals tort law still serves. This has allowed Congress and the Court to more easily displace state tort law without considering the need for any substitute federal remedy. Once the private law aspects of torts are recognized, it becomes easier to identify and value the role tort law plays in our federalist system.

ADL

Parisi and Cenini on Punitive Damages and Class Actions

In an article aptly titled Punitive Damages and Class Actions, just posted on SSRN, Francesco Parisi (Minnesota) and Marta Cenini (Milan) take on the relationship between punitive damages and class actions.  Here is the abstract:

Punitive damages and class actions can be viewed as sharing a common economic function - creating optimal deterrence. This is a function that these remedies can best pursue in different domains. When a tortfeasor causes harm that affects many victims, the preferred remedy is a class action. This is especially so when the amount of compensatory damages are high.There are scenarios, however, in which imposing punitive damages represents the best solution. We identify some of these scenarios to suggest the proper domains of these two remedies. Finally, we identify situations where a combined use of these two remedies is desirable. We suggest that when the amount of losses suffered by victims is so small as to preclude a class action due to transaction costs and inactivity, it may nevertheless be useful to combine punitive damages with a class action. Punitive damages should be awarded within a class action if and only if there are frictions that could prevent the injured party from taking legal action.

ADL

Missouri Residents Claim Manufacturing Waste Caused Tumors

Today's BNA Class Action Litigation Report (p. 710) reports that residents in Clinton and Dekalb Counties in Missouri filed a class action (with two subclasses) claiming that Rockwool Industries, Inc., a fiber insulation manufacturer, dumped lead and arsenic as well as other toxins in the area.  Plaintiffs' claims include negligence, strict liability, nuisance, and trespass.  They're requesting medical monitoring and damages.  The Rockwool facility operated between 1974 and 1982.  The lawsuit is Helms v. Rockwool Industries, Inc., No. 08CN-CV00693 (Mo. Cir. Ct. Aug. 21, 2008).

ECB

Health Concerns Remain 7 Years After 9/11/2001

It's been seven years since the attacks in 9/11/2001, and health concerns remain.  Here's an excerpt from an article today from cnn.com -- 9/11 survivors troubled by asthma, PTSD, by Andrea Kane:

A commission charged with examining the scope and depth of the attack's health effects reviewed more than 100 scientific articles published since 2001 and found that new asthma levels among residents and rescue workers were two to three times higher than the national estimates.

The report by the World Trade Center Medical Working Group, issued in advance of the September 11 anniversary, also found that two to three years after the attack, symptoms of post-traumatic stress disorder remained elevated among rescue and recovery workers and residents of lower Manhattan.

BGS

Reynolds Cuts Jobs; Altria to Acquire UST

Article in the Wall Street Journal -- Reynolds American to Cut 570 Jobs, by David Benoit.  Here's an excerpt:

Reynolds American Inc. will lay off 10% of its U.S. work force and refocus R.J. Reynolds Tobacco Co. as the company deals with a slowing market for cigarettes and a competitor's big move into the smokeless-tobacco market.

The announcement from Reynolds American comes the day after competitor Altria Group Inc. announced it was acquiring UST Inc. in a $10.4 billion deal. That deal gives the parent of Marlboro cigarettes the lead in smokeless-tobacco production -- the fastest-growing tobacco segment -- with UST's Skoal brands.

Reynolds American said Tuesday it is looking to simplify and streamline its product lines in order to cut costs. The efforts -- which include shifting company focus from the menthol Kool brand cigarette to the Camel brand -- will result in the cutting of 570 jobs from the work force of Reynolds American and R.J. Reynolds in Winston-Salem, N.C. The company will also review the value of the Kool trademark, which could result in a write-down for the current quarter.

BGS

Vaccine Act Preempts Design Defects and Failure to Warn Claims

Several plaintiffs across the country have initiated failure to warn and design defects cases against Aventis Pasteur Inc, Merck, and Wyeth.  They allege that the childhood vaccines cause autism.  Most recently, Judge New, of the Philidelphia Court of Common Pleas, held that these claims were expressly preempted by the National Childhood Vaccine Injury Act.  Amaris Elliott-Engel of the Legal Intelligencer reports on this latest ruling.  Here's an excerpt:

New said in his opinion that it appears no Pennsylvania state court has addressed whether §22(b) of the Vaccine Act expressly pre-empts claims of design defects against vaccine manufacturers, or whether each case has to be examined individually to determine "whether a vaccine is unavoidably safe before they gain the protection of Section 22(b)."

. . .

Plaintiffs' attorney Marc P. Weingarten of Locks Law Firm said the case is "an extremely important issue to be heard by the courts of Pennsylvania" because of the federal pre-emption issues arising in pharmaceutical and medical device litigation in both state and federal jurisdictions.

The plaintiffs argued that the defendants were negligent because the public and the medical profession were not warned about the alleged hazards of mercury in the vaccines, New said. The plaintiffs also argued that the pharmaceutical defendants failed to use ordinary cases in designing the vaccines containing thimerosal because of the risks the plaintiffs say toxic mercury poses to infants and children.

The plaintiffs said the Vaccine Act didn't automatically pre-empt the design defect claim because the vaccine defendants have the burden of proof to show on a case-by-case basis that the use of thimerosal is "‘unavoidably safe,'" New said.

Courts can interpret the Vaccine Act two ways, the plaintiffs argued, and should only interpret the Vaccine Act to pre-empt design defect claims "only if first the side effects are determined to be unavoidable on a case-by-case basis," New said.

ECB

Brickman Against Screening

Lester Brickman (Cardozo) has just posted an article on SSRN entitled The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?"  Here is the abstract:

Lawyers obtain the "mass" for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These "litigation screenings" have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers' offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate "medical" evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants' products. Usually a handful of doctors ("litigation doctors") provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.

By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on "diagnoses" of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were "manufactured for money."

Despite the considerable evidence I review that most of the "medical" evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.

Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.

ADL

Judge Weinstein Unseals Zyprexa Documents

Noting that "Lilly's legitimate interest in confidentiality does not outweigh the public interest in disclosure," Judge Jack B. Weinstein unsealed formerly confidential documents on links between Zyprexa, obesity, and high blood sugar.  Both the New York Law Journal and the New York Times have articles on the topic.  As I've written in the past, transparency in matters affecting the public is crucial to judicial institutional legitimacy and public education.  Consequently, this is a big step in that direction.  Here's an excerpt from the New York Times piece by Mary Williams Walsh:

The publication of sealed information led Judge Weinstein to issue a sharply worded ruling last year, stating that Mr. Berenson had engaged in a conspiracy with a doctor and a lawyer and that they had used others “as their agents in crime.”

The judge said the sealed documents belonged to Lilly and ordered the doctor, David S. Egilman, and the lawyer, James B. Gottstein, to return them. Dr. Egilman had been serving as an expert consultant for the plaintiffs at the time, and Mr. Gottstein was working on Zyprexa litigation in Alaska.

Since then, insurance companies, unions, medical researchers and other publications have filed formal requests for copies of the documents. Many of the papers were entered into open court proceedings in Alaska, and copies of some have been posted on the Internet.

In his ruling on Friday, Judge Weinstein repeated that the information had been “obtained illegally” by The Times but also cited “this country’s general policy of accessibility of court records.”

The 295 page opinion is available here and the case is In re Zyprexa Products Liability Litigation, 04-MD-1596.

ECB

FDA Adds Warnings on Arthritis Drugs

Article on cnn.com -- FDA warns on arthritis drugs: Government regulators order stronger warnings for four types of arthritis medication, saying they can increase risk of death by infection, by the Associated Press.

BGS

"Infuse Bone Graft" Linked to Life-Threatening Complications

The FDA has received 38 reports that Medtronic Inc.'s "Infuse Bone Graft," typically used to encourage bone growth in spinal surgeries, causes neck and throat swelling--life threatening injuries.  The Wall Street Journal has a lengthy article by David Armstrong and Thomas Burton on the topic and the related lawsuits.  Here's an excerpt:

Doctors with financial relationships with Medtronic have written favorably about off-label uses of Infuse on Web sites, in medical journals and at educational meetings. Some of the most influential spine surgeons in the country are consultants to the company. Several of them benefit from sales of the product through royalty deals, according to disclosures they have made in professional journals and at medical meetings.

Three "whistleblower" lawsuits brought by former employees have alleged illegal marketing, seeking refunds for the federal government on Medicare and Medicaid payments to the company. The former employees, who share in any recovery under federal law, asserted in the suits that the company paid inducements to doctors to use Infuse and other Medtronic spine products. Medtronic agreed to pay $40 million to settle two of the cases, which were filed in federal district court in Memphis, Tenn., without admitting wrongdoing. One of the whistleblowers has challenged the company's agreement with the federal government, saying the sum is too small.

The lawsuit that hasn't been settled was filed last year in federal district court in Boston by two former Medtronic employees. It alleges that the company illegally marketed Infuse for off-label purposes through doctors who were paid inflated consulting fees and bogus royalty payments. Marketing off-label uses is not allowed under FDA regulations.

ECB