Friday, October 31, 2008

Libya Pays $1.5 Billion for Compensation of Victims of Pan Am 103 Terror Attack

Article on cnn.com -- Libya pays $1.5 billion to settle terrorism claims.  Here's an excerpt:

The United States has received $1.5 billion from Libya as payment for victims of terrorist attacks, Secretary of State Condoleezza Rice told Congress on Friday.

"These funds are sufficient to provide the required compensation to victims of terrorism under the Libyan Claims Resolution Act," the State Department said in a statement.

"The administration will now move expeditiously to arrange for distribution of these funds in lieu of the pending U.S. court cases against Libya."

Washington had promised to normalize relations with Libya to reward it for abandoning its weapons of mass destruction program and for taking responsibility for the downing of Pan Am 103 and other terror attacks against Americans.

BGS

October 31, 2008 in Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Mass Torts In China

For our readers interested in the recent spate of mass torts in China: When Calamity Strikes, Who Should Pay? 

October 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Fred Baron, 1947-2008

BaronFred Baron, one of the nation's leading mass tort plaintiffs' lawyers, died yesterday in Dallas.  Founder of the law firm Baron & Budd, he played major roles in asbestos, MTBE, TCE, lead, and pesticide lawsuits, and was lead counsel for the objectors in the Amchem v. Windsor asbestos settlement class action case.  Here is the obituary from the Dallas Morning News and  today's entry in the WSJ Law Blog.

HME

October 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Issacharoff on How Last Term's SCOTUS Cases Fit Together

Samuel Issacharoff (NYU) has posted an article entitled Private Claims, Aggregate Rights on SSRN.  The article does a great job of tying the three procedural cases from last term with larger complex litigation issues. And, like all of Issacharoff's work, is extraordinarily well written. The abstract is below:

In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.

Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.

ADL

October 31, 2008 in Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2008

Drug and Medical Device Litigation Conference

American Conference Institute is running its 13th Annual Drug and Medical Device Litigation Conference in New York on Dec. 9-11, 2008.  Speakers include many of the leading defense lawyers in pharmaceutical and medical device product liability litigation, as well as a line-up of judges who have handled many of the recent cases.  Topics include preemption, juror perceptions, learned intermediary, litigation holds, scientific experts, politics, global trends, and generics.  Ted Mayer and I will speak on ethical considerations in mass tort settlements.

HME

October 30, 2008 in Conferences, Medical Devices - Misc., Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Asbestos Litigation Conference in San Antonio

ALI-ABA is running a conference ominously entitled "Asbestos Litigation: Where Is It Going? When Will It End?" in San Antonio, Texas, on Dec. 4-5, 2008, with presentations by prominent lawyers and law professors including John Aldock, Patrick Hanlon, Deborah Hensler, Stephen Kazan, Mark Lanier, Ellen Pryor, Joe Rice, and Perry Weitz.

HME

October 30, 2008 in Asbestos, Conferences | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 29, 2008

Secret Settlements in Mass Tort Cases

James M. Anderson (RAND) has posted an article entitled "Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy" on SSRN.  The abstract is below.

Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.

ADL

October 29, 2008 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2008

U.S. Supreme Court to Hear Pharmaceutical Preemption Case

Article in the Wall Street Journal -- In Drug Case, Justices to Weigh Right to Sue, by Alicia Mundy and Shirley S. Wang.  Here's an excerpt:

For nearly a century, Americans have been able to sue drug companies for deaths or injuries caused by medicines. Now the pharmaceutical industry and other big businesses are hoping the Supreme Court will sharply curb that right.

In a case called Wyeth v. Levine, which the court will hear next week, a Vermont guitarist named Diana Levine lost an arm to gangrene caused by an improperly administered nausea drug. A Vermont jury awarded her $6.7 million in damages from Wyeth, accepting her argument that the drug maker should have put stronger warnings on the label.

In its appeal of the verdict, the drug maker says the drug's label was approved by the Food and Drug Administration, and it argues the federal regulator's judgment should trump state law on issues of product safety. Many lawsuits are based on state consumer-safety regulations that often are stronger than federal standards.

BGS

October 27, 2008 in FDA, Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Lawyers Involved in Kentucky Fen-Phen Settlement Disbarred

Brett Barrouquere of the Associated Press reports that the Kentucky Supreme Court disbarred William Gallion and Shirley Cunningham, Jr. from practice after mishandling money in the Fen-Phen settlement.  The full story can be found here.

ECB

October 27, 2008 in Fen-Phen | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2008

Obesity Pill Pulled in Europe

Trista Kelley from Bloomberg.com reports this morning that European regulators have pulled Sanofi-Aventis, SA's obesity pill, Acomplia, citing concerns about its side effects. The FDA refused to approve the drug for sale in the U.S. because of these side effects, which include suicide and psychiatric problems. Apparently Sanofi plans to reapply for FDA approval in 2009. The full story can be found here.

ECB

October 24, 2008 in Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2008

Arthur Miller to Join Milberg as Special Counsel

The Wall Street Journal Law Blog has a post today that provides an update on the prosecutions of David Bershad and Steven Schulman. Milberg also announced yesterday that Arthur Miller would be joining the firm as special council. Here's an excerpt:

On Monday, former name partners David Bershad and Steven Schulman, the remaining key defendants in the case, are due to be sentenced.

Bershad pleaded guilty last year to a felony and faces up to 33 months in prison. But citing his cooperation, prosecutors Monday recommended that he serve three months in prison, followed by three months of community confinement.

Bershad, who has asked to serve no prison time, wrote this mea culpa to the judge. “I alone am to blame for those who have turned away from me,” he said, noting that his 30-year marriage was at an end and that his four children had suffered “from having to confront the hypocrisy of a father who acted contrary to the values he taught them.”

And here's a link to Milberg's announcement about Arthur Miller. Milberg, LLP is currently involved in several mass torts, including litigtion over Avandia and Zelnorm.

ECB

October 23, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2008

Andrew Morriss on Altria Group v. Good

MorrissProfessor Andrew Morriss (U. Illinois; picture left) comments in a Federalist Society SCOTUScast on Altria Group v. Good, a preemption case that was recently argued in front of the United States Supreme Court.

BGS

October 21, 2008 in Tobacco | Permalink | Comments (1) | TrackBack (1)

Monday, October 20, 2008

Kenneth Feinberg to Speak at Cardozo Law

On Wednesday October 29 at 6:00 PM Cardozo Law School in New York City is hosting a public lecture by Kenneth Feinberg. 

Kenneth R. Feinberg, Special Master of the Federal September 11th Victim Compensation Fund of 2001 and Managing Partner and Founder of The Feinberg Group, LLP, speaks at the law school on Public Catastrophes, Government Inaction and Private Compensation: Resolving the Insurance Mess after Katrina.

More information here.

ADL

October 20, 2008 in Conferences, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Interested in Food Poisoning?

Bill Marler, a leading plaintiff-side attorney specializing in food poisoning litigation has this fascinating blog providing commentary about his work and related subjects:  http://www.marlerblog.com/

I saw him speak at the recent Class Actions/Mass Tort symposium put on by the Louisiana Bar Association.  One of the most interesting things he said is that he often speaks to companies trying to prevent epidemics of food poisoning and to protect themselves against litigation - once he's able to get their attention that is.  This is an aspect of the trial lawyer's role that I'd never thought of before: educating potential tortfeasors on how to avoid the tort.  It underscores the lawyer and tort system's role in deterrence in addition to compensating victims.

The blog is worth checking out; I'll resist the obvious jokes.  ADL



October 20, 2008 in Food Poisoning | Permalink | Comments (0) | TrackBack (0)

Louisiana State Bar Association Mass Tort Symposium

Last Friday (October 19) I spoke at the Louisiana State Bar Association 8th Annual Class Action/Mass Tort Symposium.  There were many interesting local, out of state and nationally recognized lawyers from this very active mass tort bar and the presentations were very interesting. 

One of the most interesting complaints was that of the panel on mediation strategies, who were very concerned about the infighting and fee disputes among lawyers in MDL cases and the effects of these disputes on the bar.  While the fee issues in class actions have been the subject of significant scholarship, there is room for more work on these issues.

ADL

October 20, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2008

Query on Message Boards for Group Litigation

While doing research for the successor to my piece on Procedural Justice in Nonclass Aggregation, I came across a comment to a Wall Street Journal article on Vioxx litigation that referred me to a member's only Yahoo! group discussing Merck's settlement terms. There are nearly 500 members and over 11,000 posts by plaintiffs and their attorneys (my request for membership is still pending). My question is: how common is this and does this new ability to communicate en masse decrease the informational deficiencies that typically exist between claimants and between claimants and their attorneys? If you have any information on this new phenomenon, I would love to hear from you either by e-mail or comment. Thanks!
ECB

October 17, 2008 | Permalink | Comments (2) | TrackBack (0)

Anderson on Defendant's Incentives for Confidential Mass Tort Settlements

James Anderson of RAND has posted his latest working paper titled "Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy." Here's the abstract:


Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.

ECB

October 17, 2008 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2008

Antony Klapper on Causation in Toxic Tort Cases

Klapperab_2 The Washington Legal Foundation has published a Contemporary Legal Note, Causation In Court: Working Principles For Toxic Tort Cases, by Antony Klapper (Reed Smith; picture, left).

BGS

October 15, 2008 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Putting Lives Back Together After the Metrolink Crash

The Ventura County Star has an article, Oak Park man focuses on the positive after surviving Metrolink crash: Though seriously hurt, he says he's 'fortunate to have survived,' by Kitty Dill.  Here's an excerpt:

Michael R. McReynolds considers himself lucky to be at home in Ventura County, recuperating and able to enjoy his 50th birthday on Sept. 30.

The Oak Park resident survived the Metrolink crash Sept. 12.

"I feel very fortunate to have survived, actually," said McReynolds, who was on the commuter train when it slammed head-on into a freight train in Chatsworth.

When the locomotives collided, McReynolds likely was in his usual second-car location, but he's not sure. He had only partial recall afterward at Holy Cross Hospital in Mission Hills.

BGS

October 15, 2008 in Mass Disasters | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Critical of RICO Expansion

Mike Scarcella has an article today in the Legal Times that provides the latest report on Big Tobacco's oral argument before the D.C. Circuit.  Here's an excerpt:

Sentelle and Tatel -- who dominated the nearly three hours worth of argument, held in the court's ceremonial courtroom -- questioned whether Kessler and the government sufficiently and clearly identified the acts that make up a pattern of racketeering activity. Sentelle explored the extent to which a corporation, beyond any individual employee, can be found to have a specific intent to defraud.

"They had to turn our entire industry into something like the Gambino family," argued Jones Day partner Michael Carvin, who represented Philip Morris with Gibson, Dunn & Crutcher partner Miguel Estrada. RICO laws, established in 1970 to take on the mob, are commonly used in the criminal arena.

In her decision, which followed a nine-month bench trial, Kessler ordered the tobacco industry to stop using descriptions such as "light" and "low-tar" on cigarette boxes. The judge also issued a permanent injunction. "It places the entire conduct of a corporation's business at the peril of a summons or contempt," Estrada argued.

ECB

October 15, 2008 in Tobacco | Permalink | Comments (0) | TrackBack (0)