Mass Tort Litigation Blog

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):

 

MDL Data, Free & Searchable MDL Docs, MDL Rules, and a New Book on Mass Torts

For judges, lawyers, and even academics toiling away in the world of mass torts, getting a handle on the big picture can be tough.  I've seen many empirical claims made when it comes to the push for or against creating federal rules specific to mega-MDLs, all of which are mass torts.  Yet, most lack real, empirical data.

For the past six years, I've been collecting data on all of the products-liability proceedings that were pending on the MDL docket as of May 2013. (Yes, yes, I live a thrilling life.) Like a hoarder, I've squirreled away data on Lone Pine orders, Daubert motions, class-certification motions, plaintiff fact sheets, summary judgment motions, census orders, class action settlements, private aggregate settlements, and on and on and on. Those data-collection efforts have culminated in a book that is out today, Mass Tort Deals.  There is ton of information in the book's appendix on all of the information I just mentioned.  Here's a way to Download Index to Data.

One thing I noticed along the way was that neither Pacer nor Bloomberg Law allow you to search inside the text of MDL dockets, which can be long and unwieldy in and of themselves, as many of you know.  So, with the help of the wonderful UGA Law School IT department, I've created a free website that allows you to search the text of the thousands of MDL documents that I've been stockpiling for the past six years.  It includes all of the documents that I relied on for the book and I will continue to update it periodically.

The Book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation:

As for the book, Mass Tort Deals marshals this wide array of empirical data to suggest that the systematic lack of checks and balances in our courts may benefit everyone but the plaintiffs. Multidistrict proceedings, which place a single judge in charge of similar lawsuits filed across the country, consume a substantial portion of the federal courts’ civil caseload.  As the figure below shows, many MDLs are product liability proceedings (for an interactive version, click here):

And if you consider not just the number of proceedings, but the number of actions pending in those proceedings, products-liability suits dominate (for an interactive version, click here): 

Of course, most of these product-liability proceedings are not run-of-the-mill disputes. Litigation over products like pelvic and hernia mesh, opioids, Johnson & Johnson’s baby powder, Roundup, and hip implants are headline-grabbing media magnets.

Federal judges certify a small handful of these proceedings (principally those without personal injuries)  as class actions, which affords them judicial safeguards. But as tort reform has made its way into civil procedure, it has effectively clamped down on class actions.  As you can see from the graphic below, most product-liability proceedings within my dataset ended in private, aggregate settlement (click here for an interactive version):

As readers of my work know, I've voiced some concerns with adequate representation and repeat players in MDLs. Judges and academics have long raised questions about arms-length bargaining and adequate representation in the class-action context, even though Rule 23 builds in some safeguards. In class actions, for example, judges have the authority to appoint class counsel; consider whether counsel adequately represents class members; ensure that any class settlement is fair, reasonable, and adequate; and award class counsel’s attorney’s fee.

But worries about collusion, self-interest, and overreaching don’t disappear just because mass litigation can’t be certified as a class action. Instead, we might worry more because the judge lacks any clear-cut authority to police the proceedings in the same way.

 

Those concerns can be exacerbated if repeat players exist leadership positions, which they do. The graph below shows who those players are and you can click here for an interactive version:

 

Some judges appoint more lead lawyers than others, as the graphic below illustrates (click here for an interactive version):

 

 

That repeat players exist isn’t surprising in and of itself. Attorneys specialize all the time. It might be that they use their expertise to generate better outcomes for their clients. But playing the long game may also mean that repeat players develop working relationships with their opponents such that each side can use private settlement to bargain for what matters to them most from a self-interested standpoint.

 

For corporate defendants and their lawyers, this means ending the litigation with the least cost. For lead plaintiffs’ lawyers, this typically means attorneys’ fees—specifically common-benefit fees (the fees they receive for the work they do on behalf of the group as a whole).  As Chapter 3 of Mass Tort Deals details, repeat-player attorneys are prevalent in leadership positions on both the plaintiff and defense side in products-liability multidistrict proceedings.  Here's a look at the major law firms involved in these proceedings on both sides (interactive version):

 

To the extent possible given that most of the mass-tort settlements were private, Chapter 2 examines the deals that these repeat players negotiated with one another. After confirming that one of the top five most connected repeat players participated directly in each settled proceeding’s leadership, I identify the provisions within those settlements that are arguably more beneficial to plaintiffs’ lead lawyers or to the defendants than to the actual plaintiffs.

 

How do these provisions work? To stymie the lawsuits against them, for example, defense corporations include settlement provisions designed to push as many plaintiffs as possible into the settlement program. These "closure" clauses might require plaintiffs’ lawyers to recommend that all their clients accept the settlement offer and, if the client refuses, take steps to withdraw from representing that client.

 

To enter a settlement program, plaintiffs must typically dismiss their lawsuit. But, as I explain in Chapter 5, those plaintiffs often don’t know what, if anything, they will receive under that program. So, plaintiffs may be giving up their lawsuit in exchange for no compensation whatsoever.

 

For example, in litigation over the acid-reflux medicine Propulsid, out of the 6,012 claimants who entered into the settlement program, only 37 received any money. The rest received nothing, but had already dismissed their lawsuit as a condition of entering into the program. Those 37 plaintiffs collectively received little more than $6.5 million.

 

The lead plaintiffs’ lawyers in Propulsid, however, negotiated their common-benefit fees directly with the defendant, Johnson & Johnson, and received $27 million. Much of the remaining funds then reverted back to Johnson & Johnson.

 

Lead plaintiffs’ lawyers in Propulsid announced that they were creating a template for all future deals. Chapter 2 of Mass Tort Deals shows that they did exactly that.

 

Considering settlements that occurred over a 14-year span, Chapter 2 shows that every deal contained at least one closure provision for defendants. Nearly all settlements also contained some provision that increased lead plaintiffs’ lawyers common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a troubling departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcomes.

 

In short, Mass Tort Deals raises the concern that as repeat players influence practices and norms in mass torts, they may undermine plaintiffs’ ability to freely consent to the settlement. That may or may not affect the substantive outcome. Unfortunately, most of the data on how plaintiffs fared under settlement programs was not publicly available.

 

Rules for MDLs?

Given my qualms about what lawyers are doing (Chapter 2 and 3) and what judges are doing (Chapter 4), should we implement rules for MDL proceedings? Not necessarily. Our system needs a makeover, yes.  But Chapter 6 uses basic economic and social principles as the bedrock of reform.

I suggest ways in which we can build opportunities for dissent and competition into the fabric of multidistrict proceedings and incentivize lawyers to use them.

But doing so relies on judges. Educating judges and encouraging them to select leaders via a competitive process, tie leaders’ fees to the benefits they confer on plaintiffs, open the courthouse doors to hear about those benefits (or not) directly from the plaintiffs, and remand those litigants who don’t want to settle can allow the vibrant rivalries within the plaintiffs’ bar to see to it that dissent and competition flourish.

As attorneys object and compete, they are likely to divulge new information, thereby equipping judges with pieces of the puzzle that they currently lack. In short, Chapter 6 explains how arming judges with procedures that better align plaintiffs’ attorneys’ self-interest with their clients’ best interest equips courts to hold parties accountable even without legislation or rulemaking.

From diagnosis to reforms, my goal in Mass Tort Deals isn’t to eliminate these lawsuits; it’s to save them.

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.  

Appellate Court in NJ Upholds Verdict Against J&J

Alison Frankel at Reuters explains.  The opinion is here. 

Johnson & Johnson announces settlement of hip implant litigation

Johnson & Johnson has agreed to terms for settling hip implant claims, according to multiple news reports. The New York Times article reports that under the agreement, J&J "will pay some $2.475 billion in compensation to an estimated 8,000 patients who have been forced to have the all-metal artificial hip removed and replaced with another device." The article states that a typical claimant settlement, before legal fees, would be about $250,000 plus all medical costs. The article also states that the deal requires the participation of 94 percent of eligible claimants.

The lawsuits addressed by this settlement involve the Articular Surface Replacement, or A.S.R., a product of the DePuy Orthopaedics division of J&J. A couple of news sources reported a settlement of this litigation six days ago but without confirmation from defendants or plaintiffs. Today's reports come on the heels of a hearing in the multidistrict litigation (MDL 2197) before Judge David Katz in the Northern District of Ohio. 

HME

Update:  For DePuy's and J&J's press release about the settlement program, see here and here. For the settlement website, see here. For an overview of the settlement terms, including settlement eligibility, settlement amounts, and deadlines, see here.

Johnson & Johnson DePuy hip implant settlement reported

The New York Times and Bloomberg are reporting that Johnson & Johnson has agreed to settlement terms to resolve thousands of DePuy metal hip implant claims. According to the Bloomberg article, J&J Said to Reach $4 Billion Deal to Settle Hip Lawsuits, and the New York Times article, Johnson & Johnson Said to Agree to $4 Billion Settlement Over Hip Implants, the deal would provide about $300,000 to $350,000 in compensation for each claimant who underwent surgery to replace the DePuy hip implant, which could be as many as 8000 cases. The amount for each claimant would depend on age, medical condition, and other factors. According to the articles, the settlement has not been formally announced.

The Depuy hip implant cases are pending in Multidistrict Litigation (MDL 2197) before Judge David Katz in the Northern District of Ohio, as well as in state courts in Ohio, California, and New Jersey. Two cases have gone to trial, with one plaintiff victory and one for the defense. Seven more trials are scheduled. This would be the largest settlement ever for medical device litigation, and one of the largest mass tort settlements.

HME

Update:  See here for Nov. 19 info.

ABA Litigation Section Conference on Current Issues on Pharmaceutical and Medical Device Litigation

The conference will take place on November 16, 2012 in Boston, Massachusetts.  Here's the brochure.

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

The Advance and Retreat of Pre-emption

Was going through some old issues of the ABA Journal and found this interesting article from the May issue -- Business Downturn: As the market tumbles, so does the corporate pre-emption defense, by David G. Savage.  Here's an excerpt:

For much of the decade, business lawyers and the Bush administration insisted state liability laws and state regulation amounted to a costly nuisance and a drag on the economy. They said uniform national regulation of business made more sense, and they urged the Supreme Court to limit lawsuits and to pre-empt state regulations.

For years those arguments were winners. Last year, Riegel v. Medtronic barred most lawsuits against the makers of medical devices. Lawyers for the Bush administration and device makers said state jurors should not be permitted to second-guess Food and Drug Administration regulators once they have approved a device as safe and effective.

BGS

Plaintiffs' Expert Testimony on General Causation Excluded in Non-Fusarium Eye-Infection Contact-Lens Case Against Bausch & Lomb

Article in AmLaw Litigation Daily -- Shook Hardy Wins Junk Science Dismissal for Bausch & Lomb, by Ben Hallman.  Here's an excerpt:

In 2006 Bausch & Lomb yanked its ReNu Moisture Lock contact lens solution from store shelves following a Centers for Disease Control study that showed an association between the product and eye infections. The problem related to a specific kind of fungus called fusarium. Left untreated, a fusarium infection causes all sorts of nasty eye problems, including cornea scarring, which requires surgery. Over the last few years, Bausch & Lomb has settled about 400 fusarium claims. The company also faced claims from contact wearers who have gotten non-fusarium infections. On Wednesday, New York state court judge Shirely Kornreich threw out the case, ruling that plaintiffs had failed to present any compelling evidence that linked eye infections of other varieties to the Bausch & Lomb product.

And here's a link to the opinion by Justice Kornreich of the New York Supreme Court, New York County.

BGS

Robert Rabin on Conflicting Conceptions of Tort Preemption

Professor Robert Rabin (Stanford) has posted on SSRN his article, Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption, Brook. L. Rev. (forthcoming 2009).  Here's the abstract:

Beginning in 1992, with the landmark decision in Cipollone v. Liggett Group, Inc., the U.S. Supreme Court has decided a burgeoning number of preemption cases, squarely challenging the continuing vitality of tort in many domains of accident law. Cipollone addressed the preemption question in an atypical context. The case did not involve competing claims to territorial authority between a regulatory regime and state tort law. Rather, Cipollone involved a challenge to the continuing viability of tort in the face of statutory directives mandating explicit industry conduct; more specifically, the explicit warnings required in the 1969 version of the cigarette labeling act.

In this article, I begin by revisiting Cipollone to reassess what it has to offer as a foundation for setting the boundaries of regulatory containment of the tort system. Next, I discuss three leading cases from the series of efforts by the Supreme Court to grapple with express preemption clauses in a variety of regulatory schemes. Against this backdrop, I then explore the circumstances under which it might be justified to imply preemption despite the absence of an express provision, with particular reference to the recent Supreme Court decision in Wyeth v. Levine, addressing preemption in the context of FDA regulation of prescription drugs. A concluding note ties the strands together.

BGS

NIH Study Questions Benefits of Stents and Diabetes Drugs Avandia and Actos

Article in the Wall Street Journal -- Diabetes Study Questions Expensive Treatments: NIH Finds Patients With Heart Disease Fare Equally Well Without Stents and Drugs Such as Avandia, Actos, by Keith J. Winstein.  Here's an excerpt:

Aggressive use of expensive diabetes drugs and medical devices called stents did no better than cheaper treatments at preventing deaths, heart attacks or strokes in a large study of diabetics with heart disease.

The study, sponsored by the National Institutes of Health and several drugmakers, is the latest to humble fancy new treatments by finding them no better than older medicines at preventing the deadly consequences of major diseases. The results add to a debate about alleged overuse of stents, made by companies including Abbott Laboratories, Boston Scientific Corp. and Johnson & Johnson, and controversial diabetes drugs from GlaxoSmithKline PLC and Takeda Pharmaceutical Co.

BGS

13 Deaths Tied to Medtronic Heart Device

Despite reports circulating as early as 2004 about problems with the Sprint Fidelis cable, Medtronic's medical device is still in widespread use. Barry Meier of the New York Times reports that along with roughly 13 fatalities, the FDA has received reports of 2,200 reports of serious injuries. Here's an excerpt of the article:

Separately, a previously undisclosed Food and Drug Administration report indicates that Medtronic began receiving reports soon after the device reached the market in late 2004 that the cable, known as the Sprint Fidelis, was fracturing. The company also revised its manufacturing process in the months before withdrawing the Sprint Fidelis from the market, according to the F.D.A. report, which was provided to The New York Times by lawyers suing Medtronic.

A top Medtronic official said in an interview on Friday that the manufacturing change in question was unrelated to the reasons for the recall and that even at the time of the recall internal data did not suggest it was fracturing at a significantly higher rate than other company leads.

When Medtronic may have known the Sprint Fidelis posed safety problems, and how it responded to that information, could be significant factors if patient lawsuits over the product were to start moving forward again. This month, top Democratic lawmakers introduced legislation that would effectively nullify a Supreme Court decision last year that has blocked lawsuits against medical device makers like Medtronic. The company recently said that about 2,000 legal claims involving the Sprint Fidelis had been filed against it.

The death statistics Medtronic released Friday underscore both the scope of the Sprint Fidelis problem and the difficult choices that doctors and patients face in deciding what to do about it. About 150,000 people in this country still have the Sprint Fidelis leads in their bodies.

ECB

Medical Device Safety Act of 2009

After the Supreme Court rejected Wyeth's preemption claim in Wyeth v. Levine, Congress took steps to reverse the Supreme Court's earlier preemption decision, Riegel v. Medtronic, Inc. House representatives Frank Pallone, Jr. (D-NJ) and Henry Waxman (D-CA) introduced the Medical Device Safety Act of 2009 to "protect[] patients from dangerous and defective devises by correcting the Court's flawed interpretation of the MDA." In effect, the Act restores state product liability lawsuits and restores the private attorney general's role in bringing suit. NYU recently held a symposium on the broader idea of Tort Law in the Shadow of Preemption. The symposia should be forthcoming in the NYU Annual Survey of American Law.

ECB

Pfizer to acquire Wyeth

Pfizer and Wyeth today announced that Pfizer will purchase Wyeth for $68 billion, as anticipated.  The deal, as today's NY Times article notes, stands out in the current financial climate:

The deal not only create a pharmaceutical behemoth but would be a rarity in the current financial tumult: a big acquisition that is not a desperate merger of two banks orchestrated by the government.  It will also be the first big merger backed by Wall Street in months. While credit has been notoriously tight of late, five banks have agreed to lend Pfizer $22.5 billion to pay for the deal. Pfizer, which has roughly $26 billion in cash, would finance the remainder through a combination of cash and stock.

Every major pharmaceutical company has experienced mass tort litigation, and these two are no exceptions.  Pfizer defended the Celebrex and Bextra litigation, and earlier the Bjork-Shiley heart valve litigation.  Wyeth (formerly American Home Products) took a huge hit in the fen-phen litigation, and more recently has faced mass litigation over its Prempro and Premarin hormone replacement therapy products.

Last May, Amy Schulman joined Pfizer as its general counsel.  Before going in-house at Pfizer, Schulman headed the mass tort practice at DLA/Piper and was lead counsel for Pfizer in the Celebrex-Bextra litigation.  In December, Pfizer hired Bradley Lerman as its litigation chief.  As a partner at Winston & Strawn, Lerman defended McDonald's in the fast food litigation and worked for Phillip Morris in the Engle tobacco class action.

HME

Ethics Rules May be Tightened for Drug and Medical Device Makers

The Physician Payments Sunshine Act, a bill introduced in the Senate, is a parallel effort to that in the House to require drug and device makers to report all financial links with doctors on a federal website. Here's an excerpt from the N.Y. Times piece:

“The public is clamoring for transparency,” one of the Senate sponsors, Herb Kohl, a Wisconsin Democrat, said. The co-sponsor is Charles E. Grassley, Republican of Iowa.

The nation’s biggest hip and knee makers, including Smith & Nephew, Zimmer Holdings, DePuy and Biomet, are operating under Justice Department oversight as part of a deal to resolve allegations they gave doctors illegal inducements to use their products.

Other sectors of the device industry face continuing federal inquiries or are voluntarily taking house-cleaning measures. Much of it involves the public disclosure of information that would be mandated under the Senate proposal — the names of the doctors who work for device manufacturers as consultants, lecturers, researchers or trainers, and how much each one is paid for those services.

Under their Justice Department settlements, the hip and knee makers are already disclosing such payments on their corporate Web sites. And seeing the writing on the wall, several other large device companies, including Boston Scientific and Edwards Lifesciences, recently announced they would do so voluntarily.

Meanwhile, the device industry’s main trade group, the Advanced Medical Technology Association, said it had supported the Senate measure when it was introduced two years ago.

There is little question that battles over how much companies, doctors and medical institutions disclose about their financial ties will continue. But some experts on medical conflicts of interest, seeing the rapid fall of resistance by most major companies, say that a turning point has arrived.

ECB

Drug and Medical Device Litigation Conference

American Conference Institute is running its 13th Annual Drug and Medical Device Litigation Conference in New York on Dec. 9-11, 2008.  Speakers include many of the leading defense lawyers in pharmaceutical and medical device product liability litigation, as well as a line-up of judges who have handled many of the recent cases.  Topics include preemption, juror perceptions, learned intermediary, litigation holds, scientific experts, politics, global trends, and generics.  Ted Mayer and I will speak on ethical considerations in mass tort settlements.

HME

"Infuse Bone Graft" Linked to Life-Threatening Complications

The FDA has received 38 reports that Medtronic Inc.'s "Infuse Bone Graft," typically used to encourage bone growth in spinal surgeries, causes neck and throat swelling--life threatening injuries.  The Wall Street Journal has a lengthy article by David Armstrong and Thomas Burton on the topic and the related lawsuits.  Here's an excerpt:

Doctors with financial relationships with Medtronic have written favorably about off-label uses of Infuse on Web sites, in medical journals and at educational meetings. Some of the most influential spine surgeons in the country are consultants to the company. Several of them benefit from sales of the product through royalty deals, according to disclosures they have made in professional journals and at medical meetings.

Three "whistleblower" lawsuits brought by former employees have alleged illegal marketing, seeking refunds for the federal government on Medicare and Medicaid payments to the company. The former employees, who share in any recovery under federal law, asserted in the suits that the company paid inducements to doctors to use Infuse and other Medtronic spine products. Medtronic agreed to pay $40 million to settle two of the cases, which were filed in federal district court in Memphis, Tenn., without admitting wrongdoing. One of the whistleblowers has challenged the company's agreement with the federal government, saying the sum is too small.

The lawsuit that hasn't been settled was filed last year in federal district court in Boston by two former Medtronic employees. It alleges that the company illegally marketed Infuse for off-label purposes through doctors who were paid inflated consulting fees and bogus royalty payments. Marketing off-label uses is not allowed under FDA regulations.

ECB

Increase in Use of Drug-Coated Stents, Despite Past Safety Concerns

Article in the Wall Street Journal -- Use of Coated Stents on the Rise, by Keith J. Winstein.  Here's an excerpt:

Drug-coated heart stents, whose U.S. sales were hard hit over safety concerns in the past two years, appear to be mounting a comeback.

In June, 73% of stent procedures in the U.S. used a coated stent, according to the Goodroe Data Warehouse unit of VHA Inc., of Irving, Texas, based on a survey of 60 U.S. hospitals. That is up from 62% in December -- which was the lowest level in several years -- and puts coated stents' popularity at levels not seen since February 2007, when a scientific firestorm raged over the devices' safety.

Coronary stents are tiny scaffolds that relieve chest pains by propping open clogged arteries that feed the heart. About a million Americans a year receive stents. The fanciest models are coated with drugs that prevent scar tissue from reclogging an artery and cost about $2,000, making them far more profitable than uncoated, bare-metal stents, which sell for less than half the price.

BGS

After preemption, where do mass tort lawyers go?

For mass tort plaintiffs' lawyers, the scariest legal issue of the moment is preemption.  If FDA approval of a warning or product preempts state law tort claims, lots of otherwise viable mass torts disappear.  Preemption has figured prominently on this blog in recent months, including here (on the Third Circuit Colacicco decision), here (on the Supreme Court split in Warner-Lambert), and here (on the Supreme Court decision in Riegel).

Plaintiff lawyers' preemption dread picks up on a running theme:  tort reform as a supposed death knell for mass tort litigation.  A year and a half ago, Byron Stier commented on Alison Frankel's American Lawyer piece declaring the end of the wild west era of mass tort litigation.  Two months ago, we linked to a Houston Chronicle interview with a legal recruiter suggesting dim prospects for mass torts in the wake of tort reform. But mass litigators are nothing if not enterprising and resilient.  To me the interesting question is not "Will mass litigation dry up?" but rather "If pharmaceutical mass torts and medical devices litigation dry up because of preemption, what's the mass litigator's next move?" 

Earlier this month, Forbes.com ran a piece by William Barrett called Looking for Mass Torts.  Reporting on the latest Mass Torts Made Perfect plaintiffs' attorneys conference in Las Vegas, Barrett describes the gathering's potent mix of doomsdayism and entrepreneurial verve:

But behind this bravado the lawyers are running scared. After decades of victories in asbestos and tobacco, they are contending with appeals courts rulings reining in class actions involving drugmakers. A case now before the Supreme Court could sharply curtail their bread-and-butter tort suits. The defendants are asking the court to decree that suits built on the theory that drug labels had inadequate warnings are preempted by Food & Drug Administration regulation of labels.

"These are scary times," said R. Larry Morris, another partner in the law firm of Levin Papantonio Thomas Mitchell Echsner & Proctor. Philadelphia lawyer Fred S. Longer made a presentation entitled "fda Preemption: Is This the End?"

But good businesspeople that they are, these legal practitioners are hedging their bets by seeking new markets. One possible new territory where preemption is not a big problem is litigation over environmental debacles. (Witness the recent extraction of money from gasoline refiners who damaged groundwater with a federally approved additive.) The tort mavens also talked about switching to securities law, a field not especially starving for practitioners.

The prospect of mass litigators turning from one type of litigation to another as legal developments alter their cost-benefit analysis is a theme I explore in a forthcoming article on the impact of CAFA.  CAFA altered forum-selection strategy directly and indirectly in interesting ways, but beyond that, it appears to have had an impact on claim selection and litigation emphasis as well.  Preemption could affect the work of mass litigators even more emphatically than CAFA has.

HME