Friday, October 29, 2010

In Defense of the Litigation System

In an article by Jim Snyder on Bloomberg news, Kenneth Feinberg defends the legal system especially for ordinary cases:

“I happen to believe, in the run-of-the- mill, everyday life in America, the legal system works pretty well.”




October 29, 2010 in 9/11, Aggregate Litigation Procedures, Current Affairs, Lawyers | Permalink | Comments (0) | TrackBack (0)

BP Oil Spill Update

The American Lawyer's D.M. Levine reports that the Fred Bartlit investigation into the Deepwater Horizon oil spill found that "despite multiple test results showing that a cement-foam mixture meant to seal the bottom of the well was unstable, Halliburton and BP used the flawed material anyway."  The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling asked Fred Bartlit, a named partner in a Chicago litigation boutique, to lead the investigation into the Deepwater probe.  Bartlit's letter to the Commission is available here.


October 29, 2010 in Current Affairs, Mass Disasters | Permalink | Comments (1) | TrackBack (0)

Monday, October 25, 2010

Celebration of Richard Nagareda's Life Scheduled at Vanderbilt

Vanderbilt University has scheduled a celebration of Professor Richard Nagareda's life for November 12, 2010 at 4:00 p.m. in the Law School's Flynn Auditorium.  The Vanderbilt Hustler provided the following information last Friday:

The event will have limited seating. Parking for visitors will be available in Lot 5B, which is located directly across from the law school at the intersection of 21st Avenue and Broadway.

Friends, alumni and former colleagues are invited to honor Nagareda by sending tributes via email to [email protected] for posting on a special tribute website here or at Or mail your message or a letter of condolence with a note indicating whether you’d like your tribute posted online or only forwarded to Nagareda’s family to:

Vanderbilt University Law School/Nagareda Memorials
Dean’s Office
131 21st Ave. South
Nashville, TN 37203

The law school has also created a memorial scholarship fund established at the family's request. You can donate by clicking here or by sending a donation to the address above.


October 25, 2010 in Current Affairs, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 12, 2010

Supreme Court to Consider Vaccine Case

Barry Meier of the NYTimes reports.  The issue is whether the plaintiff can bring products liability suits or whether they must bring the suit only in the vaccine court, created by the 1986 National Childhood Vaccine Injury Act. 

This case concerns a woman who suffered seizures as a result of a DPT vaccine administered when she was a baby and has resultant developmental problems.  But there are many parents of children with autism who believe there is a link between vaccines and autism and would like to bring their cases outside of the adminsitrative system set up by the Act.

Thomas Burke, a political scientist at Wellesley College, has written on this topic.  Click here for his website.


October 12, 2010 in Mass Tort Scholarship, Pharmaceuticals - Misc., Products Liability, Regulation | Permalink | Comments (0) | TrackBack (0)

Monday, October 11, 2010

Verdict Reduced and Lawyer Sanctioned in Fosomax Bellwether Trial

Southern District of NY Judge John F. Keenan reduced the verdict from 8 million to 1.5 million dollars. He also sanctioned the lawyer 2,500 dollars for referencing another Fosomax trial when explicitly told not to do so by the judge.

See the New York Law Journal and Torts Prof Blog for coverage.

I think we need to open up (or reopen) the question of what juries in bellwether cases ought to know about other cases, the range of verdicts that this "type" of case usually gets, and other information that will help them reach decisions.  For more on why this might be a good idea see my newest piece, Rough Justice.


October 11, 2010 in Aggregate Litigation Procedures, Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Sunday, October 10, 2010

On the Recent Passing of Richard Nagareda

I was shocked and deeply saddened to hear of the sudden passing of Richard Nagareda, a remarkable scholar and professor and a titan in the field of mass tort litigation.  I first encountered Richard's far-reaching mind when poring over his thorough and intricately reasoned scholarship on class actions.  See, e.g., Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149 (2003); Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 Harv. L. Rev. 747 (2002).  His vast scholarly output lead to his magnum opus, Mass Torts in a World of Settlement (U. Chicago Press 2007), a sweeping assessment of the problems and possible solutions for mass torts -- including importing concepts from administrative law and using innovative attorney-fee arrangements to incentivize attorneys to care for future claimants.

In 2008, I had the good fortune to be able to invite Richard to speak at an asbestos symposium at Southwestern Law School, meet him at a pre-symposium dinner, and hear him speak about mass torts -- he was thoughtful, good-spirited, polite, and intellectually curious; here are the transcripts from the symposium, including Richard's remarks.  Richard's students were no doubt greatly enriched by his teaching, for which Vanderbilt bestowed on him Awards for Excellence in Teaching in 2002, 2009, and 2010; they were also likely made comfortable seeking guidance in his office, for in contrast to the seriousness and rigor of scholarship, he decorated his office with plastic figures from The Simpsons cartoon show, including a chessboard with Simpsons pieces.  See Vanderbilt "A Day in the Life of ... Richard Nagareda."  We here at the Mass Tort Litigation Blog also benefitted from Richard's periodic suggestions about new developments to think about, and we were delighted to post an interview with Richard that was sent to us from Rodger Citron of Touro Law Center.  In recent years, Richard was active as the Director of Vanderbilt's Cecil D. Branstetter Litigation & Dispute Resolution Program, and served as an Associate Reporter of the American Law Institute's influential Principles of the Law of Aggregate Litigation.  Richard also continued to publish widely -- indeed, his curriculum vitae lists four forthcoming works.  It is hard to accept the dimming of a star in what one assumes is an unchanging firmament, especially given Richard's relative youth at age 47.  He will be greatly missed.


October 10, 2010 in Aggregate Litigation Procedures, Class Actions, Lawyers, Mass Tort Scholarship, Procedure | Permalink | Comments (1) | TrackBack (0)

A Tribute to Richard Nagareda: 1963-2010

I was deeply saddened to learn that Richard Nagareda (Vanderbilt) passed away this past Friday.  Although I won't repeat what Howard Erichson has already posted, I wanted to write separately to express what a truly wonderful friend and mentor Richard has been to me and to many other junior scholars in the field.  Despite his constantly packed schedule, he always made time to read and comment on my work and would inevitably send the most detailed and thoughtful comments that one could ever hope for.  I remember having dinner with him this past June during the AALS Civil Procedure Mid-Year Meeting and telling him how amazed I was that, five years ago when I'd just entered the academy, he'd taken the time to respond to my timid e-mail introducing myself.  As someone who had read his work for years, I was even more amazed that he took the time to read mine and offer his insights.  

It's an honor to have known Richard; he's touched the lives of so many.  He was a powerhouse in the field and in the classroom.  He is truly beloved.  We will miss him dearly.


October 10, 2010 in Current Affairs, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Prof. Richard Nagareda (1963-2010)


We are deeply saddened by the loss of our friend and colleague Richard Nagareda, who passed away on Friday.  Richard was a true leader in the field whose work changed the way we think about mass tort litigation.  In his book, Mass Torts in a World of Settlement, his casebook, The Law of Class Actions and Other Aggregate Litigation, and a series of important articles on class actions, mass torts and related problems, Richard offered a vision of mass litigation as a problem of governance and administration.  He served as associate reporter for the American Law Institute's Principles of the Law of Aggregate Litigation.  As Director of the Branstetter Litigation and Dispute Resolution Program at Vanderbilt, he ran one of the nation's finest academic programs on litigation.  I had the pleasure of teaching a number of his students when I taught short courses at Vanderbilt, and I know how much his students admired him and how much they learned from him, as did all of us in the field.

Here's the announcement from the Vanderbilt Law School website:

Richard Nagareda, the David Daniels Allen Professor of Law and Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program, died suddenly at his home on Friday, October 8.

Memorial arrangements are pending.

“Richard was a personal friend as well as an esteemed colleague, and those of us who were fortunate enough to know him and work with him for the past several years are devastated by his death,” Dean Chris Guthrie said. “The legal academy has lost a gifted scholar, and our students an extremely talented teacher. Our faculty members have lost a good friend and exemplary colleague, and his family a beloved husband, father and son."

Professor Nagareda is survived by his wife, his son and his mother.

Those of us in the field of complex litigation will always have the insights Richard gave us, but we wish we could look forward to his next work, we will miss his voice at meetings and conferences, and we will miss him as a friend.


October 10, 2010 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, October 9, 2010

McGovern Likely to be Named Special Master in Oil Spill MDL

Torts Prof Blog reports that Francis McGovern, a professor at Duke Law and accomplished special master, is likely to be appointed the special master in the In re Oil Spill MDL.  Here is the opinion they link to: In re Oil Spill Notice.

For readers not familiar with McGovern's work, his insights have been critical to the development of the academic field of mass torts as well as in the real world in his work as a special master in various high profile litigations.  McGovern coined the idea of a "mature" mass tort and an "elastic" mass tort, concepts that are key to understanding how this type of litigation works. 


October 9, 2010 in Aggregate Litigation Procedures, Mass Disasters, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 7, 2010

Supreme Court to Hear Case on the Anti-Injunction Act's Relitigation Exception

The Supreme Court granted cert in yet another class action case (Smith v. Bayer Corp., No. 09-1205) to determine whether a federal judge can enjoin plaintiffs from bringing an economic injury class action in a state court after a federal court declined to certify the class.  The Anti-Injunction Act, 28 U.S.C. 2283, provides that, subject to three important exceptions, a federal court may not grant an injunction to stay proceedings in state courts.  Those exceptions include where Congress expressly authorizes the injunction, where it's in necessary aid of the federal courts jurisdiction, or to protect and effectuate federal judgements.  Should one of the exceptions apply, the All Writs Act provides the positive authority for federal courts to enjoin state court proceedings.  

Some of the most famous class action injunction cases to date include:

(1) the Third Circuit's In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, a 1998 case in which the Third Circuit refused to enjoin a Louisiana state court from certifying and settling a class where the Third Circuit had previously reversed the finding that the settlement was fair;

(2) the Fifth Circuit's decision in In re Corrugated Container Antitrust Litigation, where the Fifth Circuit approved the use of two exceptions in the Anti-Injunction Act to prevent a group of South Carolina plaintiffs from certifying similar antitrust claims in South Carolina because they attempted to escape the preclusive effect of a federal-court judgment approving the class settlement;  and

(3) Judge Weinstein's opinion in In re Joint Eastern and Southern District Asbestos Litigation in which he invoked the exceptions to effectuate a limited fund class action settlement under Rule 23(b)(1)(B).

In Smith v. Bayer Corp., the Eighth Circuit affirmed the trial court's ruling that prevented Baycol plaintiffs from bringing another economic injury class action in West Virginia state court after the federal judge overseeing the MDL proceedings already denied class certification on similar issues.  Keith Smith and Shirley Sperlazza, the petitioners, argued that they weren't parties to the federal case and didn't know about the lawsuit.  They also argued that they were asserting a common-law fraud claim under West Virginia law, which the federal plaintiffs did not assert.

The BNA Class Action Litigation Report (subscription required) has a nice write-up of the issues in the case, including the injunction and personal jurisdiction issues.  Here are links to the Petition for Certiorari, the Brief in Opposition, and the Petitioner's Reply (courtesy of SCOTUSblog).


October 7, 2010 in Class Actions, Current Affairs, Procedure, Products Liability | Permalink | Comments (0) | TrackBack (0)