Mass Tort Litigation Blog

WLF Web Seminar on Off-Label Communication

On October 14, 2009, the Washington Legal Foundation hosted a web seminar, Communicating on Off-Label Treatments: Navigating the Treacherous Path Paved by Civil and Criminal Law Enforcement, with speakers Robert Salerno and Adam Hoffinger of Morrison & Foerster.  Streaming video of the event is available online.

BGS

Vioxx Verdicts

I am collecting all the Vioxx verdicts - here is what I have so far. I welcome reader corrections and information about the current status of all of these cases - have they been appealed to higher courts? settled and if so for how much? or is this the final disposition? 

1. Ernst -- TX -- $26,100,000 on 8/19/2005 -- Reversed on appeal 
2. Humeston -- NJ -- Defense verdict in Nov. 2005 -- New trial ordered -- $47,000,000 verdict 
3. Plunkett -- EDLA -- Defense verdict on 2/17/2006 -- New trial ordered
4. Cona -- NJ -- 2,270,000 verdict on consumer fraud and defense verdict on tort in Apr. 2006 -- appealed and $135 award upheld
5. McDarby -- NJ -- 1,570,000 verdict in Apr. 2006 -- appealed, 3,500,000 award upheld
6. Garza -- TX -- 32, 500,000 verdict on 4//21/2006 -- remitted to 8,700,000
7. Doherty -- NJ -- defense verdict on 7/13/2006 
8. Grossberg -- CA -- defense verdict on 8/2/2006
9. Barnett -- EDLA -- 51,000,000 verdict on 8/17/2006 -- new trial ordered -- settled?
10. Smith -- EDLA -- defense verdict on 9/17/2006
11. Mason -- EDLA -- defense verdict on 11/15/2006
12. Dedrick -- EDLA -- defense verdict on 12/13/2006
13. Albright -- AL -- defense verdict on 12/15/2006
14. Appell -- CA -- hung jury on 1/18/2007
15. Arrigale -- CA -- defense verdict on 1/18/2007
16. Kozic -- FL -- defense verdict on 10/8/2007
17. Hermans -- NJ -- defense verdict on 4/3/2007
18. Schwaller -- IL -- defense verdict on 3/27/2007

For readers wanting to cite to these, I have collected them in my article titled The Social Value of Jurisdictional Redundancy, 82 Tul. L. Rev. 2369 (2008) at footnotes 106 and 107. It is available on SSRN.

Thanks to George Conk (whose blog is called Otherwise) and Ben Zipursky, both of Fordham Law, for supplementing my research.

ADL

Confidential Verdicts

I was thinking about Erichson's post on the Prempro punitive damages verdict that has been temporarily sealedl so as not to bias the jury in subsequent trials.  This is a very curious aspect of the law to me - why shouldn't juries know how other juries have decided cases?  I am not sure where I come out on the question, but consider the following.

There are a lot of complaints that jury verdicts are inconsistent, even random, too high, too low, in any event different from what judges and lawyers think is the appropriate award for a given case.  Studies of historical jury verdicts, like those conducted by Neil Vidmar, show that there is some variability in jury verdicts that is not accounted for by the legally relevant facts of the case.  Surveys like those conducted by Michael Saks et al. demonstrate by and large agreement between judges and lawyers about case valuation, but more variability among lay persons (potential jurors).  Saks attributes this to the fact that jurors don't have a point of comparison, and the way judges and lawyers value cases is comparatively.

So why not give jurors a sense of what other juries have done, and let them decide what they think the appropriate amount of damages is in a given case.  Do we think juries will be too influenced by the number, that it will set a floor or a ceiling on their findings?  If we think variability of jury verdicts is a bad thing then wouldn't giving jurors a sense of other cases help limit that variability except where cases are legitimately different and deserving of different awards?  The doctrine of remittitur permits judges to compare jury verdicts and lower outlier verdicts, so the concept of  comparative valuation isn't foreign to our procedural regime.

ADL

South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million

Hat tip to the TortProf blog on this one.  You can see their post here.

ADL

Sealed Verdict in Prempro Punitives Trial

Yesterday, a Philadelphia jury found for the plaintiff in the punitive damages phase of a trial involving Prempro, the hormone replacement therapy.  How much Wyeth (now a unit of Pfizer) must pay Connie Barton, however, remains secret.  Judge Sandra Moss, who oversees the Prempro state court litigation in Philadelphia, ordered the verdict sealed because another Prempro trial had begun and the defendant requested the order to prevent biasing the other jury.  Until the verdict is unsealed, only Barton, her lawyers, and Wyeth's lawyers may see the verdict.  In the compensatory damages phase, which concluded last month, the jury awarded Barton $3.7 million.  Here's the report from Bloomberg about yesterday's verdict.

HME

Class action filed involving Puerto Rico explosion

On Friday morning, a huge explosion occurred at a Caribbean Petroleum Corp. fuel storage facility near San Juan, Puerto Rico.  On Friday afternoon, the first class action was filed.  Here's the WSJ Law Blog report with a brief interview in which Louisiana plaintiffs' lawyer Daniel Becnel explains how he became involved so quickly and what immediate steps he took:

I got a call this morning from [Puerto Rico lawyer] John Nevares, who said he knew I’d handled these kinds of cases and that he had clients. What I immediately did was started to put together the complaint. I hired a mechanical engineer, a metallurgist, a psychiatrist, and an expert in air modeling. We also got up a Web site, so cases have been coming in on the Internet.

Responding to The Law Blog's question about the importance of filing first, Becnel focuses on getting the lawsuit started before the defendant has too much time to take control:

It’s not necessarily important to be the first, but it’s important to get in the door quickly. One of the main reasons is to get a preservation order in place to make sure that nobody destroys physical evidence. You need to get in there fast to find out what really happened.  When something like this happens — and I’ve worked on a handful of them — the first thing a company does is call its insurance claims agent. They’re on the scene within an hour. They’ll try to show that nobody’s hurt and that the damage is minimal. They’ll put out a press release. You’ve got to get in there so you can start working the other side as soon as possible.

HME

Passing of David I. Shapiro

Litigator David I. Shapiro, founding partner of the firm Dickstein Shapiro, has died.  In a career that spanned many areas of litigation, Mr. Shapiro also was active in several prominent mass tort litigations, and came to focus on mediation as a case management method.  Here's an excerpt from the Wall Street Journal's obituary:

Mr. Shapiro branched out into class-action suits in the late 1960s. He handled the states' cases in a complex federal price-fixing lawsuit against manufacturers of the antibiotic tetracycline, winning a $100 million verdict for the states.

Later, Mr. Shapiro took on cases related to breast implants, asbestos and the Exxon Valdez oil spill. In 1984, he was assigned as a special master to handle a $180 million settlement resulting from the Agent Orange case, then among the largest class-actions suits to date.

But Mr. Shapiro came to feel that much of class-action litigation was driven by greed, and that cases could be better settled by other means. He developed an expertise in negotiations, and was chairman of the American Bar Association's National Institute on New Techniques for Resolving Complex Legislation.

"It's possible to get justice and recompense for consumers without the greed of the few that plagues the U.S. system," he told the Telegraph of London in 2007.

He taught mediation at the London School of Economics, and created a mediation practice at SJ Berwin. 

BGS

Fall 2009 Newsletter for ABA Mass Torts Litigation Committee

The newsletter is now available and includes articles on Lone Pine orders, public nuisance law, federal preemption, sophisticated user and sophisticated intermediary defenses, the Fake Bad Scale Test, and document review.

BGS

Edward Cheng on the Reference Class Problem in Mass Torts

Edward Cheng has sent me the following response to my post on his article A Practical Solution to the Reference Class Problem.

Many thanks to Alexandra for raising a number of good questions about the implications of my article.  I’ll try to address two of them here.

i) The question of value.

One undoubted limitation of the use of model selection methods (at least in the regression context) as a means for resolving reference class type problems is that you need to have a measure of outcome.  Thus, the ideas in the paper work well when what we want to predict is the market value of a house or the pre-exposure risk of cancer.  Where they do not work straightforwardly are areas  determining commonality in class action cases, because there, you really don’t have an obvious target for prediction

One possibility for analyzing commonality through this lens is to use cluster analysis and the “cluster selection” tools that accompany them.  (Thanks go to Richard Nagareda for spurring this idea.)  Cluster analysis is about figuring out how to sensibly construct groups, and I think may be a fruitful avenue.  More details to come as my work progresses.

ii) Relevancy. 

The other big issue that Alexandra raises is about the “relevance” of the predictors.  How do we know that we’ve gotten all of the important predictors, or put differently, how do we know when our model is “right”?

As a response, I have to admit that I am in many ways advocating for a far more practical and data-driven perspective than what we conventionally see in social science studies of law.  I think we need to view model selection methods as an attempt to make the best predictions given the available data.  Take property valuation for example – I’d argue that we’re not really interested in the true model of property valuation; all we want is a reasonably accurate prediction of what the house would have sold for on the market.  Might we get greater accuracy ultimately if we understood the underlying phenomenon better?  Possibly.  But until we do, I think the model selection methods are powerful ways of making do with what we have.  And arguably, that’s what the legal system does anyway.  We aren’t in the business of ultimate truths.  We’re in the business of resolving cases based on the evidence at hand.

ADL

Fifth Circuit Ruling for State Farm in Hurricane Katrina Insurance Dispute

More from AmLaw Litigation Daily.  The opinion is here.  Congratulations to my former Skadden colleagues Sheila Birnbaum, Doug Dunham, and Ellen Quackenbos, who represented State Farm.

BGS

Paxil Verdict

Bad news for Glaxo.  The first trial involving claims that the antidepressant Paxil causes birth defects ended with a $2.5 million jury verdict for the plaintiff.  The family of Lyam Kilker sued GlaxoSmithKline in Philadelphia Common Pleas Court, blaming the boy's heart defect on his mother's ingestion of Paxil during pregnancy.  The jury, by a 10-2 vote, concluded that Glaxo negligently failed to warn of the risk and that Paxil caused the child's heart condition.  While the jury awarded notably large compensatory damages (the family sought $1.2 million), it rejected punitive damages by deciding that the defendant's conduct was not "outrageous."  The case is Kilker v. SmithKline Beecham Corp. dba GlaxoSmithKline.  Here are links to reports at Philadelphia Inquirer, Pharmalot, Point of Law, and Law.com.

In addition to about 600 cases involving claims that Paxil causes birth defects, Glaxo has faced claims that Paxil increases the risk of suicide and homicide.  The company has reportedly settled some suicide claims, and in 2001 a Wyoming jury rendered a $6.4 million verdict against Glaxo in a case involving a man who shot his family and himself after taking Paxil.

HME

Teaching Civil Procedure

Recently law professors have been taking a critical look at how we teach civil procedure - one of my core topics and relevant to this blog.  On Concurring Opinions, a discussion is going on between two civ pro professors about what we should teach in the civil procedure course.  Jon Siegel (GW) has a great post on what it means to teach civil procedure and what it means to teach law more generally, written in response to some disparaging comments in previous posts but certainly able to stand on its own.  Click this link to get there.

I agree with Jon about the overall project and think teaching students to memorize black letter law, however comfortable that may be for them (and relatively easy for us) is a mistake.  The first reason is that to do so would be an invitation to malpractice. The rules change (this year - Rule 56, the calculation of time, Iqbal, next year - who knows?), so you need to know how to read, analyze and interpret rules, not just what they are.  Furthermore, the rules are different in different jurisdictions (local rules anyone?) and litigators should be able to practice in state courts as well as federal.  But we can't teach to the particular forum where any one individual is going to practice.  Students need to know how to look up rules, what sources to use in interpreting them, to develop doctrinal facility with them and to know how to make policy arguments about them.  

I like to introduce students to a wide variety of rules and doctrines so that when the partner they work for says "remittitur" they don't stand there looking at him like mackerel.  But that passing familiarity is just one of the things I try to offer them.  Its useful, but not the most important on my pedagogical hierarchy.

As for personal jurisdiction, the doctrine is a great avenue for teaching students not only the evolution of legal principles in response to changing times, but also how to synthesize a complex rule structure from a set of cases, to make policy arguments based on different interpretations of those cases, and what to do with plurality opinions.  Some of this they will learn in legal writing, some they will learn in constitutional law, but really you can't get enough training in these skills. It is the begining of developing judgment, the most valuable asset a lawyer can have.  You can do this in other ways, sure, but PJ happens to be a good way to do it too.

Finally, when I think back to law school the most valuable thing I learned for practice was how to make legal arguments using an "argument bite" approach and how to hang my policy arguments on a legal hook. That was how I developed the doctrinal facility that I used in practice and use in my research and writing today.  I learned this skill in property class. I also happen to have memorized the rule against perpetuities, but today I cannot apply it.  Argument bites, however, I've used them every day for more years than I care to admit.  People intrigued by this can email me and I'll send a you citation to the relevant articles.

ADL

Which of these things is most like the others? The Reference Class Problem

The central requirement of the rule of law is equality before the law, which means that like cases ought to be treated alike.  One of the fundamental problems to valuing cases is to determine what cases are alike under what measures such that its fair to say they are worth the same amount (or fair to say that in fact they are different).

The question of whether a group of cases are sufficiently alike that they ought to be similarly valued (or have similar outcomes along some other measure, such as causation) is referred to as the "reference class problem."  I'm just going to focus on the question of value in this post.  How do we decide what measurable criteria we are going to use to determine that some cases fall into the same categories? Should we worry that there are unmeasurable or subjective characteristics of particular cases that juries would consider but that cannot be accounted for in a statistical or qualitative social science model of valuation? 

Edward Cheng (Brooklyn) purports to solve this problem in a recent essay in the Columbia Law Review.  Click the link here for a summary of his ideas. I linked to his piece on SSRN previously (A Practical Solution to the Reference Class Problem).  Unfortunately, even if we can make some progress under Cheng's theory, we must still balance the fit of the model to the data, and that means deciding which variables are "noise" and which are relevant, and accounting for what Donald Rumsfeld would call "unknown unknowns" - variables that we are not able to ascertain but that do end up being relevant. Cheng himself admits in the paper that it doesn't solve the extrapolation problem, which is our main concern in mass torts.  On the other hand, I think Cheng has it right that we need to consider how rigorous social science methodology can help us solve these types of problems or at least move us a step closer to a solution that will satisfy the equality principle.  He should be commended for moving us a step forward in that direction.  I will have more on this in a forthcoming article.

ADL

(hat tip: Emily Wall, Columbia Law Review)

Zicam MDL

The Zicam MDL has been centralized in the District of Arizona before the Hon. Frederick J. Martone.  The order can be found here.  Hat tip: Torts Prof Blog. 

ADL

Advisory Jury Trials in FEMA Litigation

Plaintiffs' lawyers in the FEMA litigation arising out of the exposure of hurricane Katrina victims to fumes while they were living in government issued trailers have asked the court to conduct two "mock" non-binding summary jury trials.  The first plaintiff's case to be tried ended in a defense verdict. 

The idea is that these non binding trials would be summary proceedings - taking less than a day and costing a lot less than formal trials.  The rules for the trials would be more relaxed as well.  Juries would be told that their verdicts are advisory. 

The AP article -- found here -- quotes plaintiffs' lawyer Gerald Meunier: "It’s a perfect fit,” said Meunier. “The cost of conducting bellwether trials is substantial for both sides.”  The defendants are against the idea.  

(Hat tip: Richard Arsenault). 

As many of our readers know, I've written on bellwether trials (see my piece on SSRN).  In that piece, I argued in favor of binding bellwether trials.  I am currently working on an article about the uses of non-binding bellwether trials.  In particular, is there a justification for conducting bellwether trials other than efficiency?  As the quote from Meunier makes clear, if you think you are going to be settling cases on an aggregate basis then it makes sense from an efficiency perspective to conduct some kind of bellwether trial - either a full blown affaire or the more limited type of advisory trial that the plaintiffs are are proposing.  But what about all the plaintiffs whose cases are not getting tried?  How can we be certain that we are measuring the value of suits accurately?  What about fidelity to the substantive law requiring individualized causation? 

The truth is that there is no such thing as an "accurate" measure of a good for which there is no market such as the kinds of damages usually awarded in tort suits.  We rely either on jury verdicts, which studies show have substantial variance, or on comparisons with other cases conducted by lawyers using essentially qualitiative analysis.  But these are often based on a conveneince sample, that is, the sample of cases that is being analysed is not random and has a potential to be biased.  Bellwether trials offer a way to value cases -- assuming the sample is chosen using social science methods -- and limit the biases inherent in the more anecdotal method of comparison.  Then we can determine whether the variances in the distribution of the outcomes is such that we can draw conclusions from the bellwether trials or not.

More on this in a bit.  ADL

Agent Orange in the News

The New York Times reports that the government has made it easier for veterans claiming to be suffering from diseases caused by agent orange to file claims.  See here: Door Opens to Health Claims Tied to Agent Orange.

ADL

Fen-Phen Fee of $567 Million

The Third Circuit upheld a fee of $567 million yesterday in the In re Diet Drugs Products Liability Litigation case noting that the amount "through extraordinarily large, is not excessive."  Here's an excerpt of the Legal Intelligencer's story:

The ruling is a victory for attorney Michael D. Fishbein of Levin Fishbein Sedran & Berman, who argued in defense of the fee award to the 72 firms that had logged more than 350,000 hours on the case.

It was a setback for two lawyers who led the challenge -- Brian S. Riepen of Dallas and Raymond Valori of Weston, Fla.

Riepen argued that the process Bartle used in calculating the fee award lacked the transparency courts require in common fund cases.

Jordan disagreed, saying: "[T]he fee proceedings were amply transparent under our precedent. Indeed, it is difficult to discern what the District Court reasonably could have done to increase the level of transparency."

Riepen argued that Bartle should have considered and made public the class counsel's individual billing records, but Jordan said, "[W]e have held that courts need not always engage in that time-consuming process."

In a separate appeal, Valori had argued that he was unfairly forced to contribute to the fee award from the fees he had earned through clients who opted out of the fen-phen settlement -- despite the fact that he never took advantage of the joint discovery conducted by the class action lawyers.

Valori also argued that Bartle failed to make the proper findings to support his ultimate conclusion that the $567 million in fees was reasonable.

Jordan disagreed, saying Bartle had made a series of findings that amply supported the fee award, including the finding that the work of class counsel yielded a $6.44 billion settlement fund that benefited more than 800,000 class members.

ECB

Toxic Tort Damages Class Action Certified Based on Aggregate Proof

In Shar v. Raytheon, ---- F.R.D. ---, 2009 WL 3193152, M.D.Fla. 2009 (Sept. 30, 2009), the Middle District of Florida District Court approved a toxic tort class action arising out of the contamination of groundwater near a Raytheon plant in St. Petersburg, Florida.

The biggest obstacle to class certification was the predominance requirement.  For a money damages class action to be certified, the plaitniff class representative must show that class issues predominate over individual issues.  Here the defendant argued that individual issues predominated - particularly with respect to properly devaluation due to the contamination. The District Cout heard expert testimony about the ability of the experts to create a model to do what they call a "mass appraisal."  From reading the opinion, it seems to me that the fact that the local county appraiser uses a similar model was critical to the court's decision.

The court refused to hold a Daubert hearing prior to certification, raising questions that are addressed in an excellent recent article by Richard Nagareda about the relationship between class certification, the merits and aggregate proof.  See Nagareda, Class Certification in the Age of Aggregate Proof, on SSRN.

(hat tip BNA Class Action Reporter)

ADL

Chinese Drywall Litigation Update

The Sarasota Herald-Tribune reported yesterday that Florida's Senate Community Affairs Committee held a hearing to discuss both legislative and state agency action to prevent builders from using tainted Chinese drywall.  The article reports that Florida is considering the following legislative action:

• Providing relief on mortgage payment for homeowners trying to rehabilitate their homes;
• Developing a standard for remediating homes and certifying them as being free from the drywall problems
• Allowing homeowners to receive a tax break to offset their rehabilitation costs; and
• Providing help to homeowners trying to deal with insurance companies over the cost of the home rehabilitation.

The Consumer Product Safety Commission has received 1,051 reports from residents in 27 states who believe that Chinese drywall impacted their health or corroded metal components in their homes.  Meanwhile, Cain Burdeau, of the Associated Press, indicated that the Chinese drywall makers may ignore the multi-district litigation in New Orleans, which includes roughly 300 lawsuits.  Judge Eldon Fallon, who presided over the Vioxx litigation, has already found one Chinese company in contempt of court for ignoring the lawsuits.

UPDATE: New York Times story can be found here.

ECB

How Transparent Are Class Action Outcomes?

In a paper that I somehow missed, Bill Rubenstein (Harvard) and Nicholas Pace (RAND) demonstrate that class action outcomes are not transparent.  The paper is called "How Transparent Are Class Action Outcomes" and is available on Rubenstein's website here and SSRN.  They write:

This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery. It is not that the data are non-existent – claims administrators or parties certainly have them - it is, rather, that they are secreted away. The outcomes of publicly approved settlements lie locked in private files.

Why should the reader care? Here is there analysis:

We argue that this is a problem for three reasons: because the case outcomes might not be all that they purport to be; because the lessons that they could teach – for example, about which approaches work best – are lost to secrecy; and because the public record is unnecessarily incomplete and public access unnecessarily thwarted. We end the paper by proposing a set of solutions, including requiring parties to report back to the court on the final claiming data, publicizing this data, and creating a central repository for it.

Lack of transparency is one of the most significant problems in our system.  Information can be obscure not only when it is secreted away, as in this RAND study, but also when it is presented in such a complicated way or in a way calculated to put off all but the most dogged researchers -- e.g. the "fine print" -- that it is impossible for anyone but an expert to understand.

ADL