Mass Tort Litigation Blog

Bloomberg Law Video on When Litigation Finance Met Mass Torts

Bloomberg Law has created a video, Billion-Dollar Lawsuits: When Litigation Finance Met Mass Torts.  Professor Linda Mullenix (U. Texas Law) is among the commentators.

 

Mass Tort Bankruptcies before SCOTUS on Monday - Harrington v. Purdue Pharma L.P.

Those of you who have been following the opioid lawsuits know that on Monday, December 4, 2023, the Supreme Court will hear oral arguments over whether to allow the billionaire Sackler family behind Purdue Pharma to glom on to Purdue's bankruptcy without declaring bankruptcy itself. 

But do you know what's at stake for mass torts? Professors Abbe Gluck (Yale), Adam Zimmerman (USC Gould), and I explore that question in a new paper forthcoming in Yale Law Journal Forum. As we explain, the case provides a critical opportunity to reflect on what is lost when parties in mass torts find the “behemoth” litigation system unable to bring mass disputes to a close, when they charge multidistrict litigation as a “failure,” and when defendants contend that sprawling lawsuits across national courts have thrown them into unresolvable crisis that only bankruptcy can solve. Harrington v. Purdue Pharma L.P. is just one of many recent examples of extraordinarily unorthodox and creative civil procedure maneuvers—in both the bankruptcy and district courts—that push cases further away from the federal rules and the trial paradigm in the name of settlement.  

Unlike ordinary state and federal trial courts, bankruptcy courts don’t generally lay blame for millions of deaths; they efficiently distribute resources. Petitioners in bankruptcy aren’t called “victims” or “plaintiffs”; they are “creditors” with limited voting rights over the distribution of an estate. Bankruptcy courts don’t develop state tort doctrines. They don’t engage in broad discovery designed to reveal accountability and spur policy reform. They rarely utilize juries or hear testimony from tort victims anxious to have their day in court; instead, testimony tends to focus on the debtor’s financial health. 

Yet diverse defendants—many of whom, notably, are not even in financial distress—from Catholic Diocese and Boy Scout abuse cases, to Johnson & Johnson talc, 3M’s earplugs, Revlon hair straighteners, and many more, have now looked to the bankruptcy court to use its inherent authority to invent new forms of procedure to find a path to global peace. Bankruptcy courts are attractive in part because they possess some powers that, ironically, state and Article III federal courts do not—they are the only American courts that can overcome federalism’s jurisdictional boundaries; they are only courts with the power to commandeer both state and federal litigants into a single forum and halt all other civil litigation no matter what court it is in. They also have stretched their own equitable powers to allow innovative corporate maneuvers, as in Purdue, that cabin liability and preclude future litigation even for entities not in financial trouble. But bankruptcy court is not supposed to be a superpower of a court that trumps all others in public litigation; it is instead, an Article I court designed for efficient, private resolution of claims, centered on capturing private value for private actors–not the elaboration and development of law and public norms.

You can read more here if you're interested.

And if you're wanting to catch up on the issues before SCOTUS next week, check out Charlotte Bismuth & Jonathan Lipson's podcast, Bankruptcy for Billionaires, where the three of us talk about MDL, opioids, and bankruptcy.

 

16th Annual Judicial Symposium on Civil Justice Issues at the Law & Economics Center, George Mason University Scalia Law School

The Law & Economics Center at George Mason University Scalia Law School posted on its webpage videos of all the panels at the 16th Annual Judicial Symposium on Civil Justice Issues.  Panels addressed the following issues:

• Emerging Issues in Civil Justice;
• Emerging and Evergreen Issues in Class Actions;
• Judicial Gatekeeping and Developments Under FRE 702 and in State Rules of Evidence regarding Admissibility of Expert Testimony;
• What Can and Should Jurors Consider When Awarding Damages?;
• What Information Should Flow to Juries?  A Case Study in Drug Device Approvals and 510K Clearances;
• The Evolution of Third-Party Litigation Financing;
• Developments in Public Nuisance and Locality Litigation;
• Bankruptcy Law and Mass Tort Litigation Liabilities; and
• The Economics and Law of Arbitration.

Bradt, Clopton, and Rave on Dissonance and Distress in Bankruptcy and Mass Torts

Andrew Bradt, Associate Dean, J.D. Curriculum and Teaching, Faculty Director of the Civil Justice Research Initiative, and Professor of Law at UC Berkeley School of Law; Zachary Clopton, Professor of Law, Northwestern University Pritzker School of Law; and D. Theodore Rave, Professor of Law, University of Texas at Austin School of Law have posted to SSRN their article, Dissonance and Distress in Bankruptcy and Mass Torts, Fordham L. Rev. (forthcoming).  Here is the abstract:

This Essay reviews the highly successful 2022 Fordham Law Review symposium on the Intersection of Aggregate Litigation and Bankruptcy. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. It also was successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation.

This Essay makes two principal observations. First, we document the different ways that MDL and bankruptcy players view their institutions. Even if they share similar goals of achieving lasting resolutions to mass tort disputes, they come from different starting points and stress different values. Civil litigators, including those in MDLs, hue to traditional notions of victims, liability, and adversarial adjudication. Bankruptcy lawyers, meanwhile, focus more on creditors, preserving value, and moving on. Second, we demonstrate that criticisms of MDL’s treatment of individual plaintiffs—both in the symposium and outside it—are being leveraged by defense-side interests seeking to promote bankruptcy as a means of resolving mass torts. Taken together, these two observations reveal a dissonance between the seemingly pro-plaintiff criticisms of MDL and the seemingly pro-defendant use of those criticisms to denigrate MDL in favor of bankruptcy.

Linda Mullenix on Assessing the Impact of The Principles of the Law of Aggregate Litigation

Linda Mullenix, Morris & Rita Altas Chair in Advocacy at University of Texas at Austin School of Law, has posted to SSRN her book chapter, Aggregationists at the Barricades: Assessing the Impact of The Principles of the Law of Aggregate Litigation, in American Law Institute -- A Centennial History (Andrew S. Gold and Robert W. Gordon eds., Oxford University Press forthcoming 2023 ).  Here is the abstract:

In 2004 the American Law Institute began work on THE PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION, finally published in 2010. The Principles was addressed to legislatures, administrative agencies, attorneys, private actors, and courts concerning multiparty, multiforum litigation. A purpose of the Principles was to suggest best practices for these institutions and actors.

This essay describes the Principles in the historical context when complex litigation began to dominate federal dockets in the 1980s. It discusses the emergence of a cohort of aggregationists dedicated to liberalizing federal procedure to support, enhance, and encourage the speedy and efficient resolution of complex litigation. The Principles built upon a longstanding ALI concern with the burgeoning and rapidly changing judicial crisis relating to the resolution of complex litigation. The Principles suggested substantial changes in existing class action jurisprudence and judicial case management, recommending more robust embrace of liberalized aggregative procedures. Initially, the Reporters advocated for a root-and-branch revision but, as the essay documents, the final Principles reflected more modest compromises. The essay thoroughly canvasses the proposed recommendations and the subsequent embrace of the proposals.

This essay concludes that while the Principles project has left its mark, courts and legislative bodies still have not addressed or resolved many issues the Principles identified. Since publication most judges seem comfortable with prevailing jurisprudence and not especially interested in rewriting procedural doctrine governing complex litigation. The Principles has not resulted in a root-and-branch revision of aggregate procedure. Rather, reception of the Principles suggests that a more incremental approach to legal reform has prevailed, and the efforts of the avid aggregationists must await another day.

Apart from questions whether the Principles fulfilled its stated purpose, this essay explores fundamental questions about the Institute’s role in moving the law in certain directions based on the goals of committed actors. On one interpretation, the Principles represented a well-intended effort to provide judges with guidance “where there was little established law.” On another, perhaps more problematic view, the Principles represented the desires of actors who, frustrated by judicial resistance to aggregate litigation, used ALI auspices to change the law in a desired direction. These questions go to the heart of the ALI’s role in guiding attorneys, judges, and rulemaking bodies in furtherance of civil justice. Whether the liberalization of aggregate procedure is a desirable goal is a normative question that the ALI Principles project assumed but did not address.

Law & Contemporary Problems Issue In Memoriam: Professor Francis McGovern

The journal, Law & Contemporary Problems, has published an an issue In Memoriam: Francis McGovern, entitled, "Innovations in Complex Litigation and Settlement."  Published authors include the following: Lynn Baker (Texas Law); David Bernick (Kirkland & Ellis); Stephen Burbank (Penn Law); Elizabeth Cabraser (Lieff Cabraser); Sean Farhang (Berkeley Law); Brian Fitzpatrick (Vanderbilt Law); Gary Friedman; Myriam Gilles (Cardozo Law); Deborah Hensler (Stanford Law); Samuel Issacharoff (NYU Law); Robert Klonoff (Lewis & Clark Law); David Levi (Duke Law); Richard Marcus (UC Hastings Law); Troy McKenzie (NYU Law); Senior Judge Dan Polster (N.D. Ohio); D. Theodore Rave (Texas Law); Judith Resnick (Yale Law); Christopher Seeger (Seeger Weiss); Charles Silver (Texas Law); and former Judge Vaughn Walker (N.D. Cal.).  Professor McGovern is also credited as co-author for an article for which he had the original idea and was very involved in assembling the central argument.  

Civil Justice Fest Panel Videos from the Law & Economics Center at George Mason University Scalia Law School

The Law & Economics Center at George Mason University Scalia Law School has posted online the videos for all of the panels for Civil Justice Fest: A Month of Dialogues on the Most Pressing Civil Justice Issues.

Plaintiffs' Attorney Shanin Specter Critical of Certain MDL Practices

Article in Legal Newsline -- Plaintiffs lawyer rips colleagues over multidistrict litigation fees, pressure tactics, by Daniel Fisher:

Federal multidistrict litigation, a procedure intended to resolve mass-tort lawsuits fairly and efficiently, has mutated into an unethical moneymaking machine for lawyers that is badly in need of reform, a prominent plaintiff attorney says as he prepares to lobby for changes.

Conservatives and tort-reform groups have long criticized MDLs as a form of asymmetric warfare against defendants in which thousands or even tens of thousands of lawsuits are gathered before a single federal judge who frequently sets settlement, not trial on the merits, as the goal. But it is unusual for a plaintiff attorney to lodge such a fierce critique on the procedure that has earned his colleagues billions of dollars in fees.

Judicial Adjuncts in Multidistrict Litigation: from Special Masters to Claims Administrators

As our readers tend to know, MDLs prioritize efficiency.  That is, after all, what the statute was designed to do--promote efficient resolution. 

But what's often unknown is the best way to promote efficiency and whether efficiency might have unintended consequences.

Back in 2019, the American Bar Association (ABA) called for courts to appoint special masters regularly in MDLs. Its report claimed that multidistrict proceedings in particular could “benefit from specialized expertise,” and that “[e]ffective special masters reduce costs by dealing with issues before they evolve into disputes and by swiftly and efficiently disposing of disputes that do arise.”

The ABA’s resolution thus urged judges to appoint special masters in complex cases at “the outset of litigation” and permit them to do everything from oversee discovery and pretrial litigation to conduct trials based on parties’ consent, allocate settlements, and administer claims. Failing to do so, it cautioned, “[r]egardless of the reason,” “may disserve the goal of securing ‘a just, speedy, and inexpensive determination.’”  Neither this reproach nor the ABA’s empirical claims included empirical support, however.

My co-author, Margie Williams, and I set out to investigate. But we didn't just look into special masters, we considered everyone that judges allocate power or authority to in MDLs: magistrate judges, claims administrators, lien resolution administrators, and even banks. We posted our article, Judicial Adjuncts in Multidistrict Litigation, on SSRN today and the paper will appear in Columbia Law Review this December. But for those of you who'd prefer the quick version, here's a summary of our findings:

Proceedings with special masters lasted 66% longer than those without them.

Using a duration model allowed us to investigate this statistic further by controlling for a proceeding's outcome (settlements uniformly took longer), personal-injury claims (which likewise took longer), and the number of actions in a proceeding (the more actions, the longer the proceeding lasted).

Nevertheless, appointing a judicial adjunct of any kind made the proceedings continue longer than they otherwise would, all else being equal. 

Designating a judicial adjunct meant that the proceeding was 47% less likely to end. And for every additional adjunct appointed, there was an 11% decrease in the probability of a proceeding ending.

Of course, magistrate judges are salaried court employees. Appointing them does not add to parties' cost. But parties must pay for special masters, claims administrators, etc., which raises questions about costs. After all, Rule 1 isn't just concerned with efficiency; it's concerned with securing "the just, speeding, and inexpensive determination of every action and proceeding." Here, however, we ran into a roadblock:

Compensation information was either undisclosed or affirmatively sealed for 62% of private adjunct appointments.

Some of the payments that we could unearth ran into the millions. In the Actos proceeding, for instance, Special Master Gary Russo charged over $4.7 million and Deputy Special Master Kenneth DeJean charged over $1.3 million. And special settlement masters Ken Feinberg, Michael Rozen, John Trotter, and Cathy Yanni collectively charged over $9.4 million to administer the Zyprexa settlement. 

Even though we couldn't always identify the amounts charged, we were able to discern that plaintiffs alone bore the costs for 54% of private adjuncts, meaning that in over half the the appointments, defendants did not contribute.

To try and figure out why judges appoint judicial adjuncts if proceedings with adjuncts cost more and last longer, we conducted confidential interviews with plaintiff and defense attorneys, special masters, claims administrators, magistrate judges, and district court judges with a wealth of MDL experience.

Interviews revealed two competing narratives. In one version, courts outsourced to effectively manage complex cases behind the scenes and closely monitored those appointed. In the other, repeat players in both the bar and the private-adjunct sector came to mutually beneficial arrangements that exposed real-life problems over capture, self-dealing, bias, transparency, and ad hoc procedures.

You'll just have to read the paper for those juicy tidbits (and there are plenty). They can be found in Part IV.  

We did create some pretty fascinating data visualizations that were just too detailed to work in the article, so I thought I might share those with you here instead. I'd just ask that before you quibble with our categorizations that you read the caveats and explanations that we provide in the paper itself. But of course we'd welcome feedback.  The following visualization provides what I think of as a snapshot of the lifecycle of an MDL, with critical events like centralization, settlement, and dispositive decisions included alongside judicial adjunct appointments, which are also color coded.  A different version of the graphic that's less "busy" appears in the paper. Clicking on the graphic will bring up an interactive version that allows you to see more details.

As our readers surely know, it's difficult to pinpoint all of the factors that make a proceeding complex. Nevertheless, we tried!  Of course, we can't measure things like the difficulty of proving causation, but we did code for the way the proceedings were resolved (as judged by the majority of the actions--some individual settlements may have occurred, for instance, even in proceedings we marked as "defense wins"); whether the proceeding included personal-injury allegations, whether the defendants were related to one another (e.g., parent-subsidiary), and the number of actions in the proceeding.  

The following visualization includes some of those factors, pairing them alongside the days to a proceeding's closure, the number of actions in the proceeding, and the number of judicial adjuncts in the proceeding.  Again, we provide some important qualifiers in the paper itself.  

Here are two: First, we use the official closed date rather than the settlement date because many of our adjuncts were appointed post-settlement to help administer the settlement program. Thus, the date the the court formally closes the proceeding remains an important milestone. (You can still see settlement dates in the above graphic.)

Second, in some proceedings, the number of actions filed on the court docket may well undercount the actions affected by the MDL.  This is because global settlements often include state-court plaintiffs and unfiled claims, judges have begun to create shadow dockets, and parties institute tolling agreements so that claims do not actually appear on the docket. Unfortunately, systematic data is not publicly available to remedy these deficiencies. 

Even with those caveats in place, you might find this interesting--I certainly did:

Again, clicking on the graphic above will open an interactive version. 

I hope this post is enough to interest you in the paper itself. We offer a number of theoretical contributions and suggestions to help chart a path forward that may interest MDL judges and attorneys. 

As always, we welcome your comments.

Symposium on New Frontiers in Torts: The Challenges of Science, Technology & Innovation at Southwestern Law School in Los Angeles

The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles.  The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish.  The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion.  Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms.  In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others.  The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus.  The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts.  Registration for the symposium is available now.

Speakers and moderators at the symposium will include the following:

• Ronald Aronovsky, Professor of Law, Southwestern Law School;
• Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
• Alan Calnan, Professor of Law, Southwestern Law School;
• Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
• James Fischer, Professor of Law, Southwestern Law School;
• Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
• Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
• Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
• Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
• Francis McGovern, Professor of Law, Duke Law School;
• Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
• Brian Panish, Founding Partner, Panish, Shea & Boyle;
• R. Rex Parris, Founding Partner, Parris Law Firm;
• Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
• Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
• Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
• Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
• Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
• Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
• Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
• Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.

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.

The Short Guide To Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

Over at our sister blog, Business Law Prof Blog, Professor Ben Edwards has been making his way through my recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.  He does an excellent job of both summarizing and commentating on each chapter. So, if you just don't have the time to do a deep dive into a new book right now but want the quick and dirty takeaway alongside thoughtful, insightful commentary, here are the links to his posts so far:

Chapter 1 - Mass Tort Deal Making - on the nuts and bolts of class actions vs. multidistrict proceedings

Chapter 2 - Mass Tort Deals - on whether quid-pro-quo arrangements exist between lead plaintiffs' attorneys & defense lawyers 

Chapter 3 - Mass Tort Deals - on repeat player dynamics in aggregate litigation (leadership appointments, etc.)

Chapter 4 - Mass Tort Deals - on judges coercing facilitating mass tort settlements 

Chapter 5 - Mass Tort Deals - on the likeness between MDL deals and arbitration

Chapter 6, on reform proposals, will be coming next week.

If you're interested in all of the data and documents in the book, they are all available for free online. That site also has some data visuals that aren't in the book, like this one (clicking the image will bring up an interactive version):

 

Roundup Verdict Tracker

California State Court 

Johnson v. Monsanto,  compensatory: $39 million, punitive: $250 million.  Verdict reduced to $78 million, currently on appeal.

Pilliod v. Monsanto, compensatory: $55 million, punitive: $2 billion. 

 

Federal Court  

Hardeman v. Monsanto, Northern District of California, compensatory: $5 million, punitive: $75 million.  

 

Come for the Opioids, Stay for the Civil Procedure

Last week, I sat down with Nicolas Terry, who hosts the podcast, The Week in Health Law. We discussed the role of repeat players in multidistrict litigation leadership (on both sides), the functions and control of MDL judges, the ongoing opioid litigation, and my new book--Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.

If you like podcasts and civil procedure, it might be just the thing for a morning commute. Just click on the icon below.

If you're interested in the opioid suits and online reading is more your style, then you might prefer the conversation that Jenn Olivia and I had, which is written up on Harvard Law's Bill of Health (click on the icon below).  While you're on the blog, you'll find lots of useful information if you search by category: Opioid Crisis.

Does Multidistrict Litigation Deny Plaintiffs Due Process?

As part of Law 360's focus on access to justice, I published this perspectives piece on MDL: Does Multidistrict Litigation Deny Plaintiffs Due Process?  It's freely accessible through the link without requiring any log-in information. 

I thought it might be of interest to readers of our blog because of its topic and its focus on the Opiate proceeding before Judge Polster.

Updated: When Trial is Too "Expensive" for Law Firms

After posting this yesterday, Bryan Aylstock reached out to provide some procedural history.  While his information better contextualizes the letter that went out, as I note below, I am still troubled by the idea that a lawyer would dismiss his client's case unless she takes some affirmative action to the contrary. As my conversations with some of the affected plaintiffs reflect, at least some feel a great deal of pressure to dismiss their claims.

As I noted, for the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I'd heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of discovery while they continue to evaluate their settlement prospects.

The text of the AWKO letter (included fully below) tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial."  As I suggested yesterday, I suspect that’s what most plaintiffs want. (As plaintiffs often tell me, “this is not about the money for me.”)

Let me fill in some background on the “aggressive deadlines” order that the letter refers to. Judge Goodwin has maintained an “inactive docket” as well as an active docket of pelvic mesh cases.  (There were, at one point, over 104,000 cases pending before him.) On February 4, 2019, he issued Pretrial Order 328 in the Ethicon MDL, which moves a list of cases from the inactive to the active docket.  He begins his order by saying:

Despite representations in inactive docket orders proposed by the parties and entered by the court, that the cases on Exhibit A have been settled or entered into a settlement model, and despite repeated warnings by the court that cases will not remain on the inactive docket indefinitely, the number of cases on the inactive docket remains in the thousands.

Judge Goodwin thus removed the listed cases from the inactive to the active docket and put discovery deadlines in place. For instance, plaintiffs had to file their fact sheets by February 15, 2019; written discovery requests by March 25, 2019; and expert disclosures by May 24, 2019.

After a case completes the discovery process and goes through dispositive motions, like motions for summary judgment, it is ready either for trial in the Southern District of West Virginia (the location of the MDL) or a remand to its original court where it could then be placed on a trial docket. 

The AWKO letter says: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."

Consequently, the firm wants to dismiss clients’ claims that are in the settlement process:

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs.

As Aylstock explained, this letter only went out to clients who had indicated that they’d like to consider a potential settlement.  The firm negotiated an aggregate settlement with Ethicon awhile ago, and these cases are being processed through that program. 

When I asked him whether there was a walkaway provision within the deal that was driving this, he said that there was a walkway threshold (meaning that Ethicon could walk away from the deal unless enough plaintiffs participate), but that it was “exceedingly low” and had been already been met (and was met shortly after it was negotiated).

In my earlier post, I said that the law firm wanted their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial.  (The letter mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and recommends that the client accept "your Ethicon settlement offer.")

Aylstock said that he had no problem taking cases to trial and had lawyers flying around the country taking depositions all the time. Nor was he hesitant about spending money the money to do so.

Instead, he wanted those clients who were in the settlement process not to have to go through discovery expenses if they planned to take the settlement offer. He said a client would be no worse off for having a case dismissed without prejudice under the agreement he negotiated with Ethicon, which waives the statute of limitations. 

Judge Goodwin has stopped accepting cases into the MDL, so presumably if a case were dismissed and refiled it would be in a state or federal court outside of the MDL proceeding.  Aylstock likewise told me that the filing fee to refile a lawsuit would be far less than the costs of experts and that he thinks a plaintiff would not be back to square one because the firm would have only case-specific discovery left to do.

As I told him, what I found most troubling about the AWKO letter was this phrase: "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice." To me, this seems like a powerful use of default rules to push plaintiffs toward settlement.

The letter apparently went out sometime in the last week, and it gave recipients only until April 24 to decide.  The folks with whom I spoke had this to say about their conversations with the firm’s case managers:

• Client 1: “I talked live with Ann and her tone was like a bull in a china shop. . . . She said, ‘You need to be ready for deposition in two weeks, hiring your own experts and witnesses, paying your way to fly around the country at your own dime.’”
  
• Client 2: “I let them know that I do NOT want them to dismiss my case. They have told me that means I will likely be dropped from them. . . . Right now they are trying to bully me, and that just isn't working!”

Perhaps other clients feel differently.  Still, two points bear mention:

First, the lawyers are the ones who initially bear the expenses associated with discovery and trial, not clients. Ultimately, costs and attorneys' fees are deducted from any judgement or settlement that the plaintiff receives, but those should not be out-of-pocket expenses for the clients.

Second, it’s apparent that at least some of AWKO’s clients are under the impression (right or wrong) that they must settle or the law firm will no longer represent them.  When I asked Aylstock about this, he said, in a much more detailed way, that it depends on an individual analysis for each client.

In general, before withdrawing from representing a client, Fla. R. Jud. Admin. 2.060 requires attorneys to file a motion setting out the reasons for withdrawing and the client’s name and address.  The motion must be set for a hearing, and the firm must serve the motion on both the client and opposing counsel.

In contingency fees governed by Florida law, Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994), holds that when an “attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.”  Only “if the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule” is the withdrawing attorney entitled to a fee.

And Rule 4-1.2(a) makes it clear that: “A lawyer must abide by a client’s decision whether to settle a matter.”  Florida also has detailed rules for contingent fees that I found interesting:

(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards are presumed, unless rebutted, to be clearly excessive:

Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action:

• 1.) 33 1/3% of any recovery up to $1 million; plus 2.) 30% of any portion of the recovery between $1 million and $2 million; plus 3.) 20% of any portion of the recovery exceeding $2 million.

After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:

• 1.) 40% of any recovery up to $1 million; plus 2.) 30% of any portion of the recovery between $1 million and $2 million; plus 3.) 20% of any portion of the recovery exceeding $2 million.

If all defendants admit liability at the time of filing their answers and request a trial only on damages:

• 1.) 33 1/3% of any recovery up to $1 million; plus 2.) 20% of any portion of the recovery between $1 million and $2 million; plus 3.) 15% of any portion of the recovery exceeding $2 million.

An additional 5% of any recovery after institution of any appellate proceeding or postjudgment relief or action is required for recovery on the judgment.

Comments welcome from all sides.  They will not show up immediately, but I will approve them as I see them coming in.

The entire letter follows: 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

 After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye Case Manager Transvaginal Mesh Litigation Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200 Pensacola, FL 32502 Phone: (850) 202-1010 Toll Free: (888) 255-AWKO (2956) Facsimile: (850) 916-7449 Email: [email protected]

 

When Trial is Too "Expensive" for Law Firms

For the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I've heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of trial.

 

Who bears trial expenses?  The lawyers, at least initially.  Ultimately, costs and attorneys' fees are deducted from any judgment or settlement.  

 

The text of the letter tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial." Good, right? That's what most plaintiffs want, I suspect.

 

But wait. The letter continues: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."  Now, that seems odd.  Why would that be?  A credible threat of trial is what raises settlement values and creates the pressure to settle in the first place.

 

Here's the clincher: the firm wants its clients to dismiss their claim without prejudice to avoid trial. "To avoid this problem" (i.e., the problem of expense for the law firm) "we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs."

 

Wow.  So, the law firm wants their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial?  The letter then mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and notes that it recommends that the client accept "your Ethicon settlement offer."

 

Then, "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice."

 

I'm speechless.

 

The entire letter has been replicated below: 

 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

  After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye Case Manager Transvaginal Mesh Litigation Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200 Pensacola, FL 32502 Phone: (850) 202-1010 Toll Free: (888) 255-AWKO (2956) Facsimile: (850) 916-7449 Email: [email protected]

 

Nikki Chamberlain on Class Actions in New Zealand

Professor Nikki Chamberlain (University of Auckland) has posted her article, Class Actions in New Zealand: An Empirical Study, 24 New Zealand Bus. L. Q. 132 (2018).  Here is the abstract:

This article contains the first empirical study on opt-in class actions, which are referred to as representative actions, filed under r 4.24 of the High Court Rules 2016 in the New Zealand High Court and the New Zealand Employment Court. The findings of this study reveal that opt-in class actions are now part of the New Zealand legal landscape in substance, if not in name. In particular, the data reflects the rise of consumer class actions in New Zealand, which, in part, have been assisted by litigation funders entering into the market. However, despite an increase in opt-in class actions, New Zealand’s civil procedure mechanism for managing class action litigation is inefficient, uneconomic and creates significant uncertainty for all class action stakeholders. This article examines the empirical data, the trends in the data, and the reasons for those trends. It concludes by discussing why reform is required against the backdrop of this study and New Zealand’s procedural process values as contained in the High Court Rules.

 

Eri Osaka on the Fukushima Nuclear Disaster Compensation Scheme

Professor Eri Osaka (Toyo University) has posted to SSRN her manuscript, Current Status and Challenges in the Fukushima Nuclear Disaster Compensation Scheme: An Example of Institutional Failure?  Here is the abstract:

The Fukushima Nuclear Disaster brought widespread and long-term damage. Soon after the accident, the government hastily set up the Fukushima nuclear disaster compensation scheme under the existing law to deal with a large number of compensation claims by the victims. It published the compensation guidelines and established the nuclear damage alternative dispute resolution (ADR) process to promote the voluntary efforts by Tokyo Electric Power Company　(TEPCO) as well as victims to resolve their nuclear damage disputes. It also has been pouring public money into TEPCO.

This paper examines whether the scheme has been functioning well, in other words, whether the victims have been compensated through the scheme. Section 2 gives an overview of the scheme. It begins with the Act on Compensation for Nuclear Damage, the basis of the current scheme. Next it explains the responsibilities fulfilled by the government and TEPCO under the scheme. It also briefly addresses the current discussion on the scheme reform. As it turns out, the current scheme is far from successful. Then, Section 3 focuses on litigation as a realistic tool to change the malfunctioning scheme under existing conditions. It introduces a discussion of the current development of cases pursuing just and equitable relief for the nuclear damage victims. However, litigation is not a panacea. Section 3 also discusses its obstacles and possible solutions.

 

Are you a plaintiff involved in a women's health mass tort? Or do you know people who are?

Today's post is really a plea for help with a new project that I've just started.  I've created a new survey that allows plaintiffs to tell me about their interaction with the court system and their attorneys.

I’m hoping to hear directly from plaintiffs who are involved in women’s health mass torts like pelvic mesh, breast implants, NuvaRing, Mirena, and Yasmin/Yaz. 

If you're a plaintiff involved in one of those cases, please consider taking this short survey.  It will ask you questions about whether you had opportunities to tell your side of the story and present evidence, how you felt your lawyer handled your case, how you felt about the process and your outcome, and whether you used third-party funding.

If you're a lawyer or reporter, I'd love your help publicizing the project. Participants' answers will be kept completely confidential, and I am not asking for details that would be covered by a confidentiality provision in a settlement.  

I am not affiliated with the courts or with the lawyers on either side in any way and I do not have any clients of my own.  I don’t consult for any of the lawyers in these cases, and all of my funding comes from the University of Georgia—not from a private company or interest.  In other words, I have no financial ties that affect the way I conduct my research.

Here's more information about me and the research I am doing: https://www.elizabethchambleeburch.com/womens-mdls

If you have questions, please feel free to contact me--if confidentiality is important, please use [email protected] rather than my University of Georgia email.