Tuesday, December 10, 2019
Mass Tort Deals: A Response to Ellen Relkin and an Open Invitation
Since I published Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation last May, I’ve received a lot of private emails from lawyers in the trenches who agree with my diagnosis of the problems in MDL. As the book details, incentives within multidistrict litigation tend to skew toward insiders’ self-interest, not the public interest or plaintiffs’ interests. Left unchecked, self-interest can takeover. And there are no checks. Consequently, there is an urgent need to improve the mass-tort system and its inhabitants as a whole.
Of course, in writing the book, I knew there would be backlash, particularly from those ensconced within the system who have much to lose from any change in the status quo. And judging from the latest review of my book on Amazon, it appears I’ve struck a nerve.
It comes from Ellen Relkin, a plaintiffs’ lawyer who served as co-lead counsel in DePuy ASR; lead and liaison counsel in Stryker; and on the court-appointed executive committee in Ortho Evra, Yasmin/Yaz, and Biomet.
To begin, I’d like to thank Ms. Relkin for taking time to review the book. I hope very much that it will lead to a dialog and a broader exchange of information, not just between the two of us, but between academics and practitioners more broadly. As my mentor, Richard Nagareda, impressed upon me, ours is a field that is driven deeply by what judges and lawyers do in real time, on the ground, not by what academics say to one another in lofty towers.
It was with that in mind that I began writing what eventually became Mass Tort Deals, which Relkin colorfully dubs a “book parading as empirical research.” It is the culmination of six-years worth of data collection on all the products-liability proceedings pending on the MDL docket as of May 2013, and its Appendix boils down all of that data into 41 pages of tables. All of the documents that I collected are freely available to the public and word searchable here. Whether you love, hate, or are completely indifferent to the book, you are welcome to make use of all of the data and documents without having to pay Pacer fees.
What to make of the data is, of course, open to various interpretations. Mass Tort Deals reflects my conscious choices both about how to present data in an inviting, accessible way, and which case studies and anecdotes might best convey key points. Those choices are based not only on the raw numbers (which are all disclosed), but on many hours of interviews with attorneys and judges as well as reading hundreds of motions, arguments, and court transcripts. Lawyers and judges who lived those proceedings will, invariably, have different opinions about their strengths and weaknesses, as Relkin’s critique demonstrates.
That brings me to Relkin’s specific comments, which I respond to briefly below:
- “The book is biased.”
Unfortunately, I’m not sure what this means. I don’t represent any clients, I don’t consult for lawyers on either side, and my funding comes entirely from my university (no private grants, etc.). I do have a perspective and an opinion from doing extensive research, but I am about as neutral as they come. As Relkin notes, on the other hand, she served as lead counsel in some of the mass tort deals that I criticize and, one presumes, has profited substantially from them.
- “[T]he book criticizes and makes incorrect assumptions without ever interviewing the lead counsel . . .”
As noted, I did speak with a number of plaintiffs’ attorneys on background (including those in DePuy ASR). Those lawyers asked not to be named for fear of retribution, which I describe in Chapter 3. Lance Cooper was the sole attorney who agreed to be interviewed “on the record.” Unlike the lawyers affected by, but not in control of the proceeding, lead lawyers’ positions tend to be apparent from reading the motions that they file and the arguments they make in a hearing’s transcripts.
Despite putting these proceedings under a microscope, however, some critical information just isn’t publicly available, as I note in the book’s Introduction. The terms of most private settlements remain private, and even for those that are publicly available, it is rare indeed to find information on substantive outcomes—who gets what, in other words.
More frustrating still are the many sealed documents. (Reuters has echoed this same frustration in a series of articles on opioids and Propecia.) DePuy ASR was a particularly opaque proceeding in that regard. The leaders, for example, sealed their common-benefit fee and cost awards (motions, orders, etc.). Why insist on secrecy in court-awarded attorneys’ fees?
This is one of the key concerns that I address in Mass Tort Deals: too little disclosure can lead to too much room for abuse of process. The information that is available suggests that there is a systemic lack of checks and balances in MDLs that may benefit insiders like lead plaintiffs’ attorneys, at their clients’ expense. In short, proceedings should be more transparent—deciding issues in secret breeds mistrust.
To that end, if you have data on substantive outcomes (who, exactly, gets what), please share it with me. I would love to know more about how much money is paid out and to whom, how long it takes to administer claims, whether like plaintiffs are treated equally, how much money it costs to put dollars in class members’ hands versus plaintiffs in private settlements, etc.
- “The book overlooks litigation challenges in some of the cases including the enormous costs of trying complex pharmaceutical and medical device cases, especially those with mild to moderate injuries, general and specific medical causation challenges, preemption issues, learned intermediary challenges, among other difficulties in some cases.”
Relkin is correct in that this book is about the procedures used to resolve cases, not substantive tort law. But to the heart of her concern, I discuss costs on pages 24-25, general and specific causation on pp. 112, 116, and 210. And I emphasize the pros and cons of bellwether trials on pp. 107-110.
- “Ms. Burch incorrectly attributes lead counsel in the DePuy ASR settlement, incorrectly interprets and describes features of the settlement, overlooks an enormous and virtually unprecedented benefits of the settlement . . ., incorrectly claims that the Extraordinary Injury Fund awards were unknown when in fact the scheduled award amounts were listed in an appendix to the settlement agreements that have been and are still on-line, among other errors.”
The only concrete thing I can find to respond to here is Relkin’s claim about the Extraordinary Injury Fund. As I observed on p. 140, the DePuy ASR settlements did estimate a claimant’s base award, but even after another search of the settlement’s website, I still don’t see any amounts actually paid out to clients listed anywhere. Of course, it’s certainly possible that I’ve missed something. So, here’s a link to the website if you’d like to dig in.
- “The two unhappy clients she quotes from a New York Times article are certainly not a representative sample. Using that standard, one could go on ‘Rate My Professor’, and while finding many good reviews of Professor Burch, would find some students who gave her unfavorable ratings.”
Okay, I couldn’t resist. It appears the last posting I received on “Rate My Professors” was in 2011 and of the 8 total posts, I received 7 “Awesome’s” and 1 “Good” (which still wrote “Great prof”). (Personally, I’m partial to the one that said “Amazing teacher. Funny, pretty, witty, and just downright brilliant,” but hey, maybe I am biased.)
More to the point, writing the book did make me realize that I needed to hear directly from plaintiffs, hence the Procedural Justice Study that I began over a year ago.
Relkin kindly mentions that “she would have been happy to share the many thank you notes from enormously grateful clients who fared very well,” so I hope that she and other plaintiffs’ lawyers will ask their Yasmin/Yaz and Ortho Evra clients to participate in the Procedural Justice Study as well as any clients they might have in the other covered women’s health proceedings: Pelvic Mesh, Talcum Powder, Mentor ObTape, Mirena, Norplant, Fen-Phen, Dalkon Shield, NuvaRing, Silicone Gel Breast Implants, Power Morcellator, Ephedra, Fosamax, Monat Hair Care, Rio Hair Naturalizer, Prempro, and Protegen Sling.
Please disseminate the survey link broadly to your clients; I absolutely want to hear from all of them. By way of background, the study does not ask for any confidential information (settlement or otherwise); the basic info it seeks include things that plaintiffs can readily find in their complaint. The study’s focus is on how plaintiffs feel about their experience with the justice system—the judges, the lawyers, etc.
My aim in this is to update and expand upon RAND’s 1989 Perception of Justice survey by identifying what litigants care about in the MDL context. I hope to hear from as many plaintiffs as possible (their names and any identifying information will be kept completely confidential).
Happy to hear from each of you, too. And if there are things I should know more about, consider this an open invitation to contact me.
What an elegant and righteous (in the best sense of that term) rebuttal of Ms. Relkin’s review, which is steeped in self-interest. The penchant of such participants in the MDL litigation machines for leveling unfounded charges of bias against their critics is depressingly common—and transparently hypocritical.
Posted by: Peggy Little | Dec 11, 2019 1:12:30 PM
One of the best books in the field.
Posted by: Mukrian Muhammed | Dec 11, 2019 8:11:07 AM