Mass Tort Litigation Blog

Symposium on "Against Settlement"

The Fordham Law Review presents a one-day symposium, "Against Settlement: Twenty-Five Years Later," looking back at Owen Fiss's classic argument in favor of adjudication -- Against Settlement, 93 Yale L.J. 1073 (1984) -- from the perspective of 2009.  For those of us who believe that mass tort litigation can and often should be resolved by settlement rather than adjudication, the Fiss argument presents a serious challenge.  If mass tort settlements create a form of governance, should we be concerned that the governance is delivered by negotiating parties and their lawyers rather than by a public official?

The symposium speakers include many notables from the fields of ADR, complex litigation, and public interest litigation:  John Bronsteen, Amy Cohen, Kenneth Feinberg, Owen Fiss, Samuel Issacharoff, Pamela Karlan, Michael Moffitt, Jackie Nolan-Haley, Susan Sturm, and the Hon. Jack Weinstein.  The symposium, which is free and open to the public, will take place on Friday, April 3, 2009 at Fordham Law School in New York City.  I'm looking forward to it.

HME

Eric Lasker on Wyeth v. Levine Oral Argument

Eric Lasker (Spriggs & Hollingsworth) has published Oral Argument in Wyeth v. Levine Marks Change in Drug Litigation Preemption Debate in the February 2009 issue of Engage.

BGS

Flight 3407 Lawsuits and the Ethics of Client Solicitation

Litigation over Continental Flight 3407, which crashed near Buffalo last week, is inevitable.  But for lawyers interested in representing the plaintiffs, New York's new ethics rules on lawyer advertising and solicitation impose a significant constraint.  Over at the NY Personal Injury Law Blog, Eric Turkewitz (here and here) has been watching how law firms have tried to market themselves in the wake of the crash.  Interesting.  (Hat tip:  Overlawyered)

HME

En Banc Rehearing in Dukes v. Wal-Mart

On Friday, the 9th Circuit granted a rehearing en banc in Dukes v. Wal-Mart, an enormous and long-running Title VII sex discrimination class action.  Plaintiffs filed the case in 2001, contending that Wal-Mart discriminated against women in pay and promotions.  The district court certified the class in 2004 and the Ninth Circuit affirmed in 2007.

OK, it's not a mass tort.  But for anyone interested in mass litigation, the Dukes case represents an important test of the limits of Rule 23(b)(2) class actions in which significant monetary damages are sought along with injunctive relief.  The UCL Practitioner blog offers an explanation of what happens next, procedurally.

HME

$8 Million Verdict in First Post-Engle Florida Tobacco Trial

A Florida jury yesterday awarded $8,000,000 ($3 million compensatory plus $5 million punitive damages) to the family of a smoker who died of lung cancer.  The case, Hess v. Philip Morris, was the first of 8,000 individual cases that may go to trial in Florida in the wake of the Florida Supreme Court's 2006 rejection of a statewide class action in Engle v. Liggett Group.

In the Engle class action, a jury had found the defendant tobacco companies liable for $145 billion in punitive damages.  The Florida Supreme Court (here's that court's decision) found that the class action should not have been certified on punitive damages, but held that certain factual findings on liability would be given issue preclusive effect in subsequent individual trials against the defendants.  I believe Florida remains one of the few states that clings to the traditional requirement of mutuality for issue preclusion, but the Engle decision did not actually condone nonmutual use of the trial findings.  Rather, it concluded that although certain issues were so individualized that they required decertification of the class on remand, the common liability issues were suitable for classwide determination and thus could stand. The Florida Supreme Court put it this way:  "Individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case."  In other words, despite the decertification of the class, the individual class members would be treated as parties entitled to use the favorable findings on liability.

If yesterday's verdict is any indication of how the remaining trials will go, the defendants' appellate "victory" in Engle offers them scant protection from the prospect of multi-billion dollar liability in Florida.  The irony is that after defeating class cert in Engle, the defendants may eventually find themselves wishing to negotiate a settlement class action to resolve the remaining claims.

Here's an excerpt from yesterday's Bloomberg.com report by Jef Feeley and Mort Lucoff:

Altria Group Inc., the biggest U.S. cigarette maker, must pay $8 million to the family of a smoker who died of lung cancer, a Florida jury ruled in the first of 8,000 individual cases to go to trial in the state. A state court jury in Fort Lauderdale ruled today Altria’s Philip Morris USA unit is liable for $3 million in compensatory damages and $5 million in punitive damages over Stuart Hess’s 1997 death. ...

The verdict is the first in thousands of lawsuits filed after the Florida Supreme Court refused to reinstate a $145 billion punitive-damages verdict awarded by a Miami jury to a statewide class of smokers in 2006. Florida’s high court, which ruled the smokers can’t sue as a group, extended the time for individual smokers to sue and allowed them to rely in their individual cases on factual findings by the Miami jury, including that cigarettes are addictive and cause cancer. ...

The 8,000 cases pending in the state are split up among cigarette makers including Altria, Reynolds American Inc. and Vector Group Ltd. The cases are slated to be tried in courthouses across the state in coming months and years.

HME

Wake Forest Symposium on the Third Restatement of Torts

Wake Forest University School of Law is hosting A Symposium on the Third Restatement of Torts on April 2-3, 2009 in Winston-Salem, North Carolina.  The symposium has assembled a remarkable list of speakers.

BGS   

Roderick Hills and Catherine Sharkey on Preemption

The Fall 2008 NYU Law School magazine includes A Presumption Against Preemption, by Professor Roderick Hills (NYU), and A Model for Products Liability Preemption, by Professor Catherine Sharkey (NYU).  (Scroll down the .pdf link to page 60 for the Hills piece, and page 63 for the Sharkey piece.)

BGS

Albany Law School Symposium on Off-Label Prescription of Drugs

Albany Law School is hosting a symposium entitled, Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label, in Albany, New York on Friday, March 27, 2009.  Papers will subsequently be published in the Albany Law Journal of Science and Technology.  I'll be speaking as part of a panel on current topics in off-label drug-use litigation.

BGS

Peanut Company Officials Take 5th Amendment Self-Incrimination Protection Before Congress

Article on cnn.com -- Peanut company officials spurn Congress' questions.  Here's an excerpt:

The president of a peanut company and a plant manager accused of knowingly distributing contaminated food refused to answer questions posed by members of Congress on Wednesday, citing their Fifth Amendment protection against self-incrimination.

The testimony of Stewart Parnell, president of the Peanut Corp. of America, and Sammy Lightsey, manager of the company's Blakely, Georgia, plant, before a House Energy and Commerce subcommittee lasted less than 10 minutes.

Neither man had an opening statement. Asked whether it was their intention to cite constitutional protection in refusing to answer all the questions posed by the committee, both men said it was.

It was the only question they answered; Parnell cited constitutional protection even when asked whether he had heard members of a previous panel testify.

BGS

Should Chief Justice Roberts Excuse Himself from Wyeth?

Tony Mauro, from the Legal Times, points out that Chief Justice John Roberts owns Pfizer stock and questions whether Roberts should recuse himself from the Wyeth case now that Pfizer is acquiring Wyeth.  Here's an excerpt:

Chief Justice John Roberts Jr. owns Pfizer stock that has prompted his recusal in previous cases. The outcome of the Levine case is likely to affect Wyeth's value, and in turn Pfizer's.

On Feb. 4, Wyeth's lawyer before the Court, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr sent a letter to the clerk of the Supreme Court informing the Court of the pending transaction. But Waxman told the Court that because of pending stockholder approvals and other matters, the transaction will not be completed until July 31 at the earliest -- weeks after the end of the Court term, by which time its decision would have been released. As a result, Waxman said he does not believe the pending takeover "warrants amendment of the corporate disclosure statement" submitted by Wyeth when Wyeth petitioned the Court last year. That disclosure statement is ordinarily the way justices are informed about parent companies and subidiaries that lets them know if recusal is required.

ECB

Beijing Hotel Fire

A fire destroyed the Mandarin Oriental Hotel in Beijing today.  According to news accounts (here and here), the fire occurred in the final hours of the lunar new year celebration, as fireworks lit up the Beijing sky.  Thankfully, the hotel was newly constructed and not yet occupied, and no injuries or deaths have been reported.  But for those of us who follow mass tort litigation, the images of the fire conjure up memories of the 1986 San Juan Dupont Plaza fire and the 1980 MGM Grand Hotel fire, both of which involved numerous deaths and injuries and led to incredibly complex mass tort litigation.  The Beijing hotel was part of the same complex as the new CCTV (China Central Television) tower, one of the most architecturally distinctive modernist buildings in Beijing.

HME

Richard Epstein and Rick Hills Debate When FDA Regulation Should Preempt State Tort Liability

Professor John McGinnis (Northwestern) is moderator for a January 9, 2009 Federalist Society debate between Professors Richard Epstein (Chicago) and Rick Hills (NYU) on When Should FDA Regulation Preempt State Tort Liability.  I attended, enjoyed the debate, and asked a question, which is toward the end of the audio/video.

BGS

Gardasil's Adverse Effects

A report on CBS this evening interviewed several young girls and their families who reported serious side effects from taking Merck's Gardasil. The effects ranged from seizures, to heart problems, to death. The CDC's report on side effects indicates that:

As of August 31, 2008, there have been 10,326 VAERS reports of adverse events following Gardasil vaccination in the United States. Of these reports, 94% were reports of events considered to be non-serious, and 6% were reports of events considered to be serious.

Most news outlets haven't picked up the story yet, but here is one link:
Chronically Ill Girl Eyes Vaccine, Rocky Mountain News

ECB

Southwestern University Law Review Asbestos Symposium Issue

The Southwestern University Law Review has published its issue in connection with the symposium, Perspectives on Asbestos Litigation, which Professor Alan Calnan and I co-chaired here at Southwestern Law School on Friday, January 18, 2008.  Here are the articles contained in the issue:

Alan Calnan & Byron Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459 (2008).  Download calnan_stier_introduction_final_pdf.pdf

Mark A. Behrens & William L. Anderson, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479 (2008).  Download behrens_anderson_article_final_pdf_121808.pdf

Helen E. Freedman, Selected Issues in Asbestos Litigation, 37 Sw. U. L. Rev. 511 (2008).  Download freedman_article_final_pdf_121808.pdf

Michael D. Green, Second Thoughts About Apportionment in Asbestos Litigation, 37 Sw. U. L. Rev. 531 (2008).  Download green_article_final_pdf_121808.pdf

Phil Harley, Judicial and Practical Perspectives: Transcript of Phil Harley, 37 Sw. U. L. Rev. 533 (2008).  Download harley_transcript_final_pdf_121808.pdf

David G. Owen, Against Priority, 37 Sw. U. L. Rev. 557 (2008).  Download owen_article_final_pdf_121808.pdf

Keith N. Hylton, Asbestos and Mass Torts with Fraudulent Victims, 37 Sw. U. L. Rev. 575 (2008).  Download hylton_article_final_pdf_121808.pdf

James A. Henderson, Sellers of Safe Products Should Not Be Required to Rescue Users From Risks Presented by Other, More Dangerous Products, 37 Sw. U. L. Rev. 595 (2008).  Download henderson_article_final_pdf_121808.pdf

Gregory C. Keating, The Heroic Enterprise of the Asbestos Cases, 37 Sw. U. L. Rev. 623 (2008).  Download keating_article_final_pdf_121808.pdf

Richard Nagareda, Public and Private Law Perspectives: Transcript of Professor Richard Nagareda, 37 Sw. U. L. Rev. 659 (2008).  Download nagareda_transcript_final_pdf_121808.pdf

Howard Erichson, Public and Private Law Perspectives: Transcript of Professor Howard Erichson, 37 Sw. U. L. Rev. 665 (2008).  Download erichson_transcript_final_pdf_121808.pdf

Jospeh Sanders, Medical Criteria Acts: State Statutory Attempts to Control the Asbestos Litigation,  37 Sw. U. L. Rev. (2008).  Download sanders_article_final_pdf_121808.pdf

Anita Bernstein, Asbestos Achievements, 37 Sw. U. L. Rev. 691 (2008).  Download bernstein_article_final_pdf_121808.pdf  

Neil Vidmar, Social and Cultural Perspectives: Transcript of Professor Neil Vidmar, 37 Sw. U. L. Rev. 717 (2008).  Download vidmar_transcript_final_pdf_121808.pdf

Judy Sloan, Perspectives on Asbestos Litigation: Introduction to the Keynote Address, 37 Sw. U. L. Rev. 731 (2008).  Download sloan_transcript_final_pdf_121808.pdf

Barbara Rothstein, Perspectives on Asbestos Litigation: Keynote Address, 37 Sw. U. L. Rev. 733 (2008).  Download rothstein_transcript_final_pdf_121808.pdf

My many thanks again to all those who worked on the symposium and the issue, and of course to all of the speakers (including co-blogger Howard Erichson) who made for a fascinating day.

BGS

Will Pfizer's Purchase of Wyeth Affect SCOTUS' Preemption Ruling This Term?

According to Richard Arsenault - a plaintiff's-side lawyer specializing in complex litigation, pharma and mass torts - Wyeth has filed a letter alerting the Court to the fact that Pfizer is taking over Wyeth.  See HME's post on the takeover here. What effect could this have on the opinion in Wyeth v. Levine?  If Chief Justice Roberts recuses himself (as he has in the past in cases involving Pfizer) then this will change the dynamic of the decision; Arsenault predicts it may lead to another 4-4 split.  Then again, since arguments were heard before Pfizer was publicly in the picture, the Chief Justice may not recuse himself.  Any predictions?

ADL

The Hartford Files a Declaratory Judgment Action Against Peanut Corp. of America

Illustrating another angle in the complicated relationship between insurance and mass torts, the Hartford has filed a declaratory judgment action against the Peanut Corporation of America, presumably to avoid paying out on claims arising out of the spate of lawsuits we are about to see arising out of salmonella poisoning in peanut butter products.  As Bill Marler points out in his blog, the complaint does not actually tell us what the Hartford's position is with respect to paying out on any salmonella related claims, but it is hard to imagine why an insurance company would take the trouble to file a declaratory judgment action unless it was trying to avoid payment.  For more information, see the Marler Blog .  You can download the suit from there.

The insurance issues in the Asbestos context are well studied -  I imagine we're likely to see more fights with insurance in other mass tort contexts.

ADL

Jonathan Macey and Geoffrey Miller on Judicial Review of Class Action Settlements

Professors Jonathan Macey (Yale) and Geoffrey Miller (NYU) have co-authored Judicial Review of Class Action Settlements, which has been published in the new, on-line, peer-reviewed Journal of Legal Analysis.  Here's the abstract:

This article proposes a simple and coherent approach to judicial review of class action settlements. Specifically, we propose that for questions going to the adequacy of a settlement, where no warning signals of fraud or collusion are found, the court should act relatively deferentially by employing a lenient standard of scrutiny and approving a settlement if it has a rational basis. An intermediate level of scrutiny should apply when the settlement presents facial issues that implicate the fairness of the settlement. Such facial issues include the allocation of settlement proceeds among subgroups in a class, the presence of coupon-type relief, “shotgun” settlements occurring very early in the litigation, and settlements in overlapping class actions. In settlements with one or more of these characteristics, if the initial inquiry raises concerns, the court should demand a well-reasoned explanation for the choices made. Finally, where the components of a settlement present a direct conflict between the interests of class counsel and those of the class issues, such as issues related to attorneys’ fees, courts should employ exacting scrutiny and require convincing evidence that the proposal is reasonable.

BGS

Bruce Mandel and James Kline on Ohio Supreme Court's Greater Deference to Legislative Tort Reform

Bruce Mandel and James Kline (both of Ulmer & Berne) list the areas of greater deference in their Washington Legal Foundation paper, Recent Ohio High Court Rulings Reflect Respect for Legislature's Role in Making Tort Law.

BGS

Judge Grants Summary Judgment Against Two Seroquel Plaintiffs

So reports Andrew Longstreth of American Lawyer.

BGS

Class Actions 101

Nice, short backgrounder on class actions in the ABA Litigation News -- Class Actions 101: What Are These Lawsuits All About, Anyway?, by Julie Cantor (Munger Tolles).

BGS