Tuesday, July 28, 2009

Mass Tort Score Card

The folks over at Drug & Device Law have an interesting post evaluating the trends in their field in the last twenty five years from the defense point of view.  Click on this link to see the post.

Overall, their sense is that things have been moving in the defense's favor.  They give developments in class actions an "A", Expert Witnesses an "A", pleadings an "A-", Learned intermediary rule "A-", Preemption "B", Innovative liability theories "B-", Discovery "D" and Reducing overall litigation "F". 

In my view there are two weaknesses to their evaluation.  First, I am not so sure that innovative liability theories have really risen very much. I'd like to think more about this. But it is true as a general matter that lawyers will always think of innovative theories to move forward, so I can't imagine a world without innovative legal theories. Innovative legal theories are what make the law cool, especially for professors studying this fascinating field.  The question is whether they gain traction or not.

Second, their view on the increase of litigation sound a bit too much like defense side propaganda, not sufficiently grounded in facts.  I think what they mean is the increase in cases filed, but I'd like to see some actual numbers showing that cases have increased relative to the increase in the production and dissemination of medical devices or pharmaceuticals and the development of that market.  After all, if pleadings are tightening, the substantive law is tightening, then how can it be that cases filed are increasing?  Whatever one's opinion of plaintiff-side lawyers, they certainly aren't irrational.  I should note that relative to GDP, Marc Galanter has pretty conclusively proven that filing rates in general have not increased (actually decreased) of late.  Is something different in the products liability or medical device area?  If there is an increase of cases due to lawyer advertising, as they propose, is this necessarily bad?   More litigation is costly for defendants.  And its quite clearly bad for society in general (actually more than bad: terrible horrible no good very bad) in the cases where lawyers commit fraud or file frivolous claims.* But the mere fact that more people are gaining access to justice when they have been harmed doesn't seem to me bad for society. So I'd like to hear more about that too. Although I understand that taking the defense perspective, litigation is always per se bad, irrespective of the merits.

Overall I always learn something from reading their blog, so I would give it a high grade.  Although I would like to see a little more balance.


*There have been some egregious cases of lawyers filing claims that appear to be fraudulent (intrested readers may want to see Lester Brickman's work on this in the asbestos context, available in SSRN).  Such conduct must be punished, but it is not representative of all plaintiffs lawyers.


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