Mass Tort Litigation Blog

Vioxx Litigation Update

The National Law Journal reported last week on the Vioxx litigation in an article titled "Persistence Pays in Vioxx Litigation."  (Oct. 6, 2008 at S3).  It quoted Tom Girardi, who filed the first Vioxx case, as noting that the lesson from Vioxx was to settle early rather than losing billions in bad publicity.  On the flip side, Richard Nagareda noted that Merck's strategy of resisting settlement off the bat was largely successful, resulting in a lower payout per claimant.  The article concludes by observing that all eyes are on Wyeth v. Levine, No. 06-1249, which is pending before the Supreme Court and addresses FDA pre-emption.

ECB

J&J Pays $68.7 Million to Settle Hundreds of Orthro-Evra Cases

Article in AmLaw Daily -- Ortho Evra Settlements Quicken Ahead of SCOTUS Preemption Review, by Brian Baxter.  Here's an excerpt:

Bloomberg reported on Friday that Johnson & Johnson has paid roughly $68.7 million to settle hundreds of lawsuits filed by women who claim the company's Ortho Evra birth-control patch adversely affected their health.

According to Bloomberg, over 4,000 complaints have been filed in federal and state courts by plaintiffs claiming they've suffered blood clots, heart attacks, and strokes as a result of the high levels of estrogen released by the birth-control patch, which is manufactured by Raritan, N.J.-based J&J subsidiary Ortho-McNeil Pharmaceutical. With the approval of the FDA, J&J voluntarily agreed to strengthen the warning label on the patch several times since its release in 2002.

Bloomberg has a more detailed article on the settlement.

BGS

Philip Morris Brings First Amendment Challenge Against San Francisco Ban on Selling Cigarettes in Drug Stores

Article in AmLaw Daily -- Munger Reps Philip Morris in Unprecedented Tobacco Sales Ban Case, by Zach Lowe.  Here's an excerpt:

In 2001 the U.S. Supreme Court upheld the right of tobacco companies to advertise in stores over the objections of Massachusetts officials. Now the city of San Francisco is trying a different tactic to curb cigarette sales: banning them altogether. A law that went into effect on Oct. 1 prohibits the sale of all tobacco products in drug stores, including retail chains like Rite Aid that also house pharmacies.

Philip Morris is challenging the case, and they've turned to longtime counsel Munger, Tolles & Olson to come up with a novel argument against the San Francisco law. The lawyers are claiming that the regulation violates the First Amendment because it effectively forces tobacco companies to pull the advertising that accompanies its products in drug stores. Munger lawyers cited the 2001 case, Lorillard Tobacco v. Reilly, a matter argued in part by a team at Latham & Watkins.

BGS

12th Annual ABA National Institute on Class Actions

The 12th Annual ABA National Institute on Class Actions, which is being co-sponsored by the Mass Torts Committee, will take place on November 7, 2008 in New York City at the Marriott Downtown Hotel.  Speakers include Judges Fred Biery (W.D. Tex), Shira Sheindlin (S.D.N.Y.), and Jack Weinstein (E.D.N.Y.); Professors John Coffee (Columbia) and William Rubenstein (Harvard); and attorneys John Beisner (O'Melveny), Elizabeth Cabraser (Lieff Cabraser), Michael Donovan (Donovan Searles), Cari Dawson (Alston & Bird), Vincent Esades (Heins Mills), Donald Frederico (Greenberg Traurig), Steven Glickstein (Kaye Scholer), Lynda Grant (Cohen Milstein), Deepak Gupta (Public Citizen), David Hamer (McCarthy Tetrault), Laurel Harbor (Shook Hardy), Cristina Hernandez-Malaby (Quarles & Brady), John Isbister (Tydings & Rosenberg), Daniel Karon (Goldman Scarlato), Katherine Kinsella (Kinsella/Novak Communications), James Muehlberger (Shook, Hardy), Scott Nelson (Public Citizen), Fern O'Brien (Arnold & Porter), Sylvie Rodrigue (Ogilvy Renault), and Charles Wright (Siskinds).

BGS

Mark Geistfeld on Tort Law

Professor Mark Geistfeld (NYU; picture left) has a new book, Tort Law: The Essentials (Aspen 2008).

BGS

Lilly Settles Zyprexa Marketing Claims with States for $62 Million

Article in the New York Times -- 33 States to Get $62 Million in Zyprexa Case Settlement, by Alex Berenson.  Here's an excerpt:

Eli Lilly has agreed to pay $62 million to 33 states to settle claims that it improperly marketed Zyprexa, its top-selling drug, to patients who did not have schizophrenia or bipolar disorder, its only approved uses.

The settlement, to be announced Tuesday, ends an 18-month investigation led by the offices of the attorneys general of Illinois and Oregon, which contended that Lilly had violated consumer protection laws by urging doctors to prescribe Zyprexa to patients who did not need it.

It is the largest settlement paid by a drug company in a state consumer protection case, topping the $58 million that Merck paid to settle similar allegations about Vioxx, lawyers for the states said.

The agreement may also be a sign that a much larger deal is near in a separate but related civil and criminal investigation led by federal prosecutors in Philadelphia. In that case, Lilly is expected to pay more than $1 billion in fines and restitution to states and the federal government and may also plead guilty to a misdemeanor criminal charge related to off-label marketing of Zyprexa.

BGS

Procedural Justice in Nonclass Aggregation

I've just posted my most recent paper, Procedural Justice in Nonclass Aggregation, on SSRN.  Here's the abstract:

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions.  Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards.  When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights.  This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem itself, discerning the principal disparities between litigant preference and mass tort practice, and identifying the main obstacles to implementing procedural preferences. In so doing, it observes that procedural justice is context-dependent and thus a matter of perspective.  Claimants’ perspectives and procedural preferences vary depending on whether they view themselves as part of a group or a collective.  Accordingly, this Article introduces a continuum for evaluating group cohesion and designates two new points along that continuum—“individuals-within-the-collective” and “group-oriented-individuals.”  It concludes by sketching some preliminary observations about tailoring process to meet the needs of these different plaintiffs and the inherent barriers to implementing procedural justice. 

I'm working now on the prescriptive part of the analysis now and hope to have it posted over the course of the next few months.

ECB

More on the Altria v. Good Oral Argument

An interesting analysis here on Scotusblog.  The official transcript is available here.  Some highlights of the Scotusblog analysis, by Lyle Denniston:

• The government sided with the plaintiffs on the implied preemption quesiton, but only on that question.
• But the judges weren't buying it - asking why the FTC hasn't regulated these misleading ads since they know about them for some time.  Justice Scalia said: “When did the Commission know this stuff?  I had a case when I sat on the Court of Appeals, so it had to be before 1984…It’s been general knowledge for a long time, and the FTC has done nothing abput it.”
• The defendants oral argument focused on the express preemption issue only.  Denniston quotes the following exchange between the defendant's lawyer, Theodore Olson, and Justice Scalia --- Olson:  “I’d like to spend no time on the implied preemption argument."  Justice Scalia: “Good idea.”

ADL

SCOTUS Hears Oral Argument in Altria Group v. Good

The Supreme Court of the United States today heard oral argument in Altria Group v. Good, a preemption case concerning light cigarettes.  Here's an excerpt from an article on cnn.com:

After turning away those cases and dozens of others that accumulated during the summer, the court heard arguments in a tobacco case and suggested it would side with tobacco companies in their fight to block lawsuits over deceptive marketing of "light" cigarettes.

Several justices were skeptical that state laws against fraudulent advertising could be used to sue the makers of "light" and "low-tar" cigarettes when a federal law on cigarette labeling rules out lawsuits that involve smoking and health.

"How do you tell it's deceptive or not unless you look at smoking and health?," asked Chief Justice John Roberts.

Three Maine residents sued Altria Group Inc. and its Philip Morris USA Inc. subsidiary under the state's law against unfair marketing practices. The class-action claim represents all smokers of Marlboro Light or Cambridge Light cigarettes, both made by Philip Morris.

BGS

Impermissible Client Solicitation After Metrolink Crash in L.A.

Article in the L.A. Times -- Lawyers swoop in after the Metrolink crash, looking for clients: State bar officials cite possible professional sanctions, but the aggressive attorneys note that time is limited and the stakes are expected to be very high, by Carol J. Williams.  Thanks to Robert Glassman for bringing the article to my attention.  Here's an excerpt:

The phone rang at a rare moment between Angie Akins' frantic drives from her home and her husband's bedside in an intensive-care unit, between shuttling to her job and driving her 14-year-old daughter to after-school sports and ballet.

It was a lawyer who'd spotted her husband's name among those badly injured in the Sept. 12 Metrolink crash in Chatsworth. An attorney she had never met was urging her to retain him and sue the government railroad for all it was worth. Only a week had passed since her comfortable suburban life had been upended by tragedy.

"I didn't even write down the name, I was so upset at the time," Akins recalled. "I said I couldn't think about a lawsuit now when my husband might be dying!"

BGS

FDA Says Small Amount of Melamine Not Harmful to Adults

Article on cnn.com -- FDA: Tiny amount of melamine not harmful to adults.  Here's an excerpt:

Eating a tiny bit of a melamine, the chemical responsible for a global food safety scare, is not harmful except when it's in baby formula, U.S. food safety officials said Friday.

Melamine-tainted formula has sickened more than 54,000 children in China and is being blamed for the deaths of at least four tots. The chemical has also turned up in products sold across Asia, ranging from candies, to chocolates, to coffee drinks, that used dairy ingredients from China. Authorities in California and Connecticut have found melamine in White Rabbit candies imported from China.

But infant formula made in the U.S. is safe, because manufacturers do not use any ingredients from China.

BGS

Cadbury Recalls Candy Because of Melamine Contamination

Article on cnn.com -- 'High level of melamine' in two Cadbury products.  Here's an excerpt:

Hong Kong authorities Sunday announced that two recalled candy products made by British confectioner Cadbury had high levels of melamine.

The industrial chemical has recently been found in Chinese-made milk products that have sickened nearly 53,000 children in China, killing four.

Countries around the world have since banned the import of Chinese products containing milk, or have withdrawn products that contain milk from China -- such as candy -- amid worries they contain melamine.

BGS

Markel on Punitive Damages

Dan Markel (Florida State) has two new articles that may be of interest: "How Should Punitive Damages Work?" and Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction.

Here is the abstract of the first piece:

What are punitive damages for? In a companion article, I argued that states should re-conceive and restructure punitive damages to advance, in part, the public's interest in retributive justice. I called such damages "retributive damages." Although that article provided the rationale and basic structure for retributive damages as an expressly "intermediate sanction," and explained why society should want retributive damages independent of other remedial or penal options, the theoretical nature of the proposal only scratched the surface of how they would operate in practice.  This Article addresses the next critical question: how should punitive damages work? This question is especially timely in light of the Supreme Court's recent decision in Philip Morris v. Williams, which held that juries may not consider the harms to non-parties in determining the amount of punitive damages a defendant must pay.  To make punitive damages work, we must first separate retributive damages from damages meant either to achieve optimal deterrence (to the extent permitted by Philip Morris) or to vindicate the victim's dignity interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.

This Article begins that important task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing the critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance, settlement, and taxation.

 

ADL

Higher Class Certification Standards in the Second Circuit

Yesterday's New York Law Journal had an article detailing the higher threshold for class certification in the Second Circuit. Among the Second Circuit cases profiled were the 2006 In re IPO Securities Litigation decision and, more recently McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) (RICO class action). The impact of those decisions has started to trickle down to decisions in the Southern District of New York in the following cases:

McCracken v. Best Buy Stores, 248 F.R.D. 162 (S.D.N.Y. 2008) (denying class certification because of individualized issues of proof in theories of breach of contract and unjust enrichment);

In re Credit Suisse First Boston Corp. (Latronix Inc.) Analyst Securities Litigation, 250 F.R.D. 137 (S.D.N.Y. 2008) (decertifying a class based on allegedly false and misleading analyst reports in light of the Second Circuit's IPO decision);

Lapin v. Goldman Sachs & Co., 2008 WL 4222850 (S.D.N.Y. Sept. 15, 2008) (certifying the class and disagreeing with the Credit Suisse case by holding that plaintiffs need not establish loss causation to invoke the presumption of reliance in a class certification motion and that the question was whether loss causation could be proven by classwide evidence--not whether that evidence was ultimately persuasive);

In re Grand Theft Auto Video Game Consumer Litigation, 251 F.R.D. 139 (S.D.N.Y. 2008) (decertifying a class based on the Second Circuit's McLaughlin decision and in light of having to determine the laws of the state where each purchase was made).

ECB

Tom Cornford's Towards a Public Law of Tort

Professor Tom Cornford (Oxford) has published Towards a Public Law of Tort (2008).  Here's the description:

Presenting a new approach to the problem of public authority liability, this volume provides a theoretical foundation in the form of principles of administrative liability that are both normatively sound and consonant with other recognized legal principles. These principles are used as criteria by which to judge the current law and as a guide to reform.

Such reform could be brought about by judicial development of the law, and this volume explains how. It considers both the procedural and the substantive divides between public and private law and explains the proposed solution's relation to the forms of public authority liability already present under European Community law and the Human Rights Act. Focusing in particular on UK law, the book is also relevant to other Commonwealth countries and will be of interest to scholars and practitioners of both tort and public law.

BGS

Magdalena Tulibacka on Product Liability Law in Transition

In 2009, Professor Magdalena Tulibacka (Oxford) will publish Product Liability Law in Transition: A Central European Perspective (Ashgate Publishing).  Here's the description:

This volume examines the evolution of Central European product liability regimes, with particular reference to the effect of the implementation of the Product Liability Directive in the context of the recent enlargement of the EU.

Using Product Liability Law, the study offers a valuable insight into the necessary features and requirements of the harmonization of laws between the EU and Post-socialist Europe. This complex undertaking is achieved by use of comparative law methodology concerned with convergence of laws, international movements of law and the changes these necessitate. The volume further provides a comparison of how the law has evolved in Socialist states and compares it to developments taking place in the West.

Predominantly legal in scope, the study also takes account of the importance of extralegal elements in law reform. As such, it will be a valuable resource for those interested in European Law as well as those working in the area of Consumer and Product Liability law.

BGS