Mass Tort Litigation Blog

George Mason Law & Economics Center Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions

The Law & Economics Center at George Mason University Scalia Law School is hosting on online Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions from 10:00 a.m. to 2:55 p.m. EST on Friday, February 19, 2021.  Registration is free.  Here is the agenda:

10:00 – 10:05 am Opening Remarks

Donald J. Kochan, Professor of Law and Deputy Executive Director, Law & Economics Center
George Mason University Antonin Scalia Law School

10:05 – 11:05 am
Panel 1: An Update on the Ongoing Debate over Nationwide Injunctions, Especially with a Change in Presidential Administration
Samuel L. Bray, Professor of Law, The Notre Dame University Law School
Scott A. Keller, Former Solicitor General
State of Texas (2015-2018)
Amy Marshak, Senior Counsel, Institute for Constitutional Advocacy and Protection and Adjunct Professor of Law, Georgetown University Law Center
Michael T. Morley, Associate Professor, Florida State University College of Law
Moderator: Trevor N. McFadden, District Judge, US District Court for the District of Columbia

11:15 am – 12:15 pm
Panel 2: Developments in Punitive Damages
Eric D. Holland, Owner and Partner, Holland Law Firm, LLC
Evan M. Tager, Partner, Mayer Brown
W. Kip Viscusi, University Distinguished Professor of Law, Economics, and Management
Co-Director, PhD Program in Law and Economics
Vanderbilt Law School
Navan Ward, Principal, Beasley Allen
Moderator: Harris L Hartz, Circuit Judge, US Court of Appeals for the Tenth Circuit

12:45 – 1:45 pm
Panel 3: The Controversy over Trends in High Damage Awards: A Discussion on Causes and Consequences
David Ball, Trial Consultant, Malekpour & Ball Litigation Strategy
Mark A. Behrens, Co-Chair, Public Policy Practice Group, Shook Hardy & Bacon
John H. Beisner, Partner, Litigation, Mass Torts, Insurance, and Consumer Litigation
Skadden, Arps, Slate, Meagher & Flom LLP
Laura Frank Sedrish, Partner, Jacoby & Meyers
Moderator: Brock A. Swartzle, Judge, Michigan Court of Appeals

1:55 – 2:55 pm
Panel 4: Issues in Documenting and Calculating Damages: The Debate Over Medical Financing and “Phantom” Damages
Nicholas C. Johnson, Of Counsel, Cohen Milstein Sellers & Toll PLLC
Drew LaFramboise, Partner, Ashcraft & Gerel
Lee Mickus, Partner, Evans Fears & Schuttert LLP
Caitlin F. Saladrigas, Partner, Holland & Knight
Moderator: William C. Mims, Justice, Virginia Supreme Court

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.

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.  

 

Appellate Court in NJ Upholds Verdict Against J&J

Alison Frankel at Reuters explains.  The opinion is here. 

David Logan on Judges, Juries, and the Politics of Tort Reform

Professor David Logan (Roger Williams) has posted to SSRN his article, Judges, Juries, and the Politics of Tort Reform, 83 U. Cin. L. Rev. 903 (2015).  Here's the abstract:

The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.

This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”

Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.

The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.

 

2014 Vancouver Summer Law Program and Global Tort Litigation Course

I'm serving as Co-Director of Southwestern Law School's 2014 Vancouver Summer Law Program, which is offered in collaboration with the University of British Columbia Faculty of Law and the International Centre for Criminal Law Reform and Criminal Justice Policy.  All classes will take place at the University of British Columbia's new Allard Hall, which was completed in 2011 at a cost of $56 million.  On-campus housing at St. Andrew's Hall next to the law school may also be arranged through the summer law program.  The program will run from May 25 to June 25, 2014.  Here is the brochure.  

One of the courses offered will be a course on Global Tort Litigation, which I'll be co-teaching with Professor Jasminka Kalajdzic of the University of Windsor.   Other courses include comparative criminal procedure, international environmental law, and comparative sexual orientation law; students may elect to take two courses for four units, or three courses for six units.  

We welcome applications from students in good standing at an ABA-approved or state-accredited American law school or accredited Canadian law school.  Special reduced tuition rates are available for Canadian law students.  Come join us in beautiful Vancouver, Canada!

BGS

Skadden Analysis of 2013 Potential Developments in Global Litigation

Skadden has issued a useful analysis of upcoming cases to watch and potential developments for 2013 in class actions and product liability.  The analysis includes contributes by Skadden's John Beisner, J. Russell Jackson, and Jessica Miller.

BGS

$300 Million Punitive Damages Award Against Iran and Syria for Terrorism Injuries

The United States District Court for the District of Columbia has awarded $300 million in punitive damages to plaintiffs bringing tort claims against Syria and Iran in connection with their alleged role in a 2006 suicide bombing attack in Israel; the recovering plaintiffs were all U.S. citizens.  The opinion is noteworthy not only for the size of the punitive-damages award, but also for the opinion's application of the terrorism exception to the Foreign Sovereign Immunities Act and the opinion's finding that the organization allegedly responsible for the attack was acting as an agent of Iran and Syria.  The Jurist also has an article on the opinion.

Although executing on such a judgment is likely difficult and sensitive matters of foreign policy may be implicated, the use of tort law (here, the claims included battery and intentional infliction of emotional distress) seems promising as a way to hold foreign states responsible for terrorism.  Indeed, multiple such claims have been litigated recently in the District of Columbia.  Apart from general attempts to execute on assets of the defendants seized abroad, perhaps payment of such claims might be raised by the U.S. Department of State in connection with any future regime change and new government in the defendant countries.

BGS

Bar on Punitive Damages Against Chrysler For Cars Sold Before 2009 Bankruptcy

The Wall Street Journal has a video describing the bar on punitive damages against Chrysler for new claims in connection with cars sold prior to Chrysler's 2009 bankruptcy.  The video features Professor David Skeel (Pennsylvania).

 

BGS

Catherine Sharkey on the Vicissitudes of Tort

Professor Catherine Sharkey (NYU) has posted to SSRN her article, The Vicissitudes of Tort: A Response to Professors Rabin, Sebok & Zipursky.  Here is the abstract:

This response essay probes three themes that tie together three articles submitted for a tort symposium on “The Limits of Predictability and the Value of Uncertainty.” First, I explore the use of unpredictability as a code word for an assault on tort doctrine in response to an out-of-control tort system. In his historical account of the evolution of tort, Professor Rabin focuses on the canonical “no duty” rules of the nineteenth century and the contemporary rules-based limitations on open-textured liability in the twentieth century. But largely missing from this account is the story of rules promoting tort liability, such as strict liability, vicarious liability, negligence per se, and the like. Second, I probe the link between unpredictability and insurance. I argue that Professor Sebok’s efforts to distinguish champerty from illegal gambling and to analogize it to a form of insurance will inevitably fall short of establishing social acceptance or embrace of the practice. Third, I highlight the role of the U.S. Supreme Court and its incursions into the state law domain of tort in the name of predictability. Professor Rabin is doubtful that the U.S. Supreme Court will achieve great strides in its endeavor to quell unpredictability in punitive damages. Professor Zipursky has considerable angst about the Court’s making inroads into privacy and emotional distress torts. Such incursions are in keeping with the Court’s longer-term project of procedural reform of the civil litigation system in the name of unpredictability, but are novel in their ambition to launch frontal attacks.

BGS

Chevron Appeals $8.6 billion Judgment to Ecuador's National Court

CNN reports that Chevron has appealed the $8.6 billion environmental judgment to Ecuador's National Court.  The case has been closely watched not only for its high dollar amounts, but for the questions raised by Chevron about the integrity of Ecuador's courts.  Questions of foreign-court bias may be more frequent as mass tort litigation increasingly becomes global tort litigation, and disputes against large, deep-pocketed corporations are brought by foreign claimants in foreign courts.

BGS

BP, the Gulf Coast Claims Fund, and MDL Plaintiffs' Lawyers

All that in the recent interesting op-ed from New York Times business columnist Joe Nocera -- BP Makes Amends.

BGS

McGovern on Punitive Damages Class Actions

I just ran across an article by Francis McGovern entitled "Punitive Damages and Class Actions" 70 Louisiana L. Rev. 435 (2010).  Here is a flavor of the piece from the introduction:

Notwithstanding the chilly reception that punitive damages class actions have received from appellate courts, there are several approaches at the micro and macro levels of analysis suggesting that “hope” is still persistent. By disaggregating the United States Supreme Court punitive damages jurisprudence, it is possible to identify a limited number of factual scenarios where a class action for punitive damages could be successful. These micro-level observations can constitute a road map for navigating the current seemingly insurmountable barriers that have severely limited the use of class actions in punitive damages claims. At the macro level, there are two observations that could lead to a revision of punitive damages class actions: the seemingly undaunted, pragmatic desire on the part of trial judges to resolve similar cases collectively, and the powerful support for an economic vision of punitive damages that leads inevitably to a global, rather than individual, procedural approach.

ADL

Eisenberg and Heise on the Judge-Jury Difference in Punitive Damages Awards

Theodore Eisenberg and Michael Heise (both of Cornell) have posted to SSRN their article, Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court?  Here's the abstract:

We analyze thousands of trials from a substantial fraction of the nation’s most populous counties as well as a smaller sample of less populous counties. Evidence from four major Civil Justice Survey data sets spanning more than a decade establishes that: (1) compensatory awards are strongly associated with punitive awards and (2) the punitive-compensatory relation has not materially changed over time. But (3) 2005 data suggest, for the first time, systematic differences between judges and juries in the punitive-compensatory relation. Despite claims that the Supreme Court’s State Farm decision changed the punitive-compensatory relation, we present evidence that the 2005 shift is not attributable to the State Farm case or to other possibly relevant likely factors such as the relative flow of personal injury cases to judges and juries, inclusion of 110 small counties in the 2005 data, or changes in the 2005 data coding. The judge-jury difference more likely turns on unobserved factors driving the selection of cases for adjudication before judges and jurors.

BGS

 

Sharkey on the Exxon Valdez Litigation

Catherine Sharkey (NYU) has posted "The Exxon Valdez Litigation Marathon: A Window on Punitive Damages" on SSRN.

It looks like one of the things Sharkey discusses in the paper (which I haven't read yet but looks fascinating and important) is the fact that the Exxon case was a punitive damages class action.  Notably, it was a punitives class sought by the defendants not plaintiffs.  The plaintiffs actually opposed the class certification (and lost).  It seems to me that from an economic point of view punitive damages classes make perfect sense because punitives are all about defendants' conduct, not plaintiff's, so individual issues should not predominate.  We only start to get concerned about the relationship between plaintiff's harm and defendant's punitive exposure when we know that many other cases are going to come about seeking punitive damages (in other words, the defendant faces duplicative awards for the same conduct).  For contrary views see Nagareda, Punitive Damages Class Actions and the Baseline of Tort and Sheila Scheuerman, Two World Collide: How the Supreme Court's Recent Punitive Damages Decisions Affect Class Actions.

Here is the abstract of Sharkey's paper:

The Exxon Valdez litigation marathon - a protracted, two-decade-long battle over the propriety and constitutionality of the jury’s $5 billion punitive damages award - provides a window into the past, present, and future of punitive damages. Acting akin to a common law court under federal admiralty jurisdiction, the U.S. Supreme Court provided a template for lower courts to follow. Free of constitutional constraints, the Court diagnoses the problem with punitive damages - unpredictability - and propose a solution: a 1:1 ratio of punitive to compensatory damages. The flaws in the Court’s statistical analysis provide a reminder that those “unsophisticated in statistics” should proceed with caution. The Court’s single-minded focus on unpredictability almost inexorably drives it to embrace and reinforce an exclusively retributive rationale for punitive damages. The Court invokes the analogy of the sentencing guidelines as a model for achieving greater predictability; once enamored with this model, the linkage between the guidelines and criminal retribution spills over to punitive damages as civil retribution. There is, moreover, an uncanny coincidence between the Court’s common law, policy-laden analysis, and the heavy-handed direction its constitutional excessiveness decisions had been taking.

Three issues loom large on the horizon of punitive damages doctrine and policy. First, the Court’s fixation on unpredictability can be linked with a broader trend in the Court’s jurisprudence of circumscribing the role of the civil jury in the name of certainty, predictability, and efficiency. Second, the Court had before it a case in a unique procedural posture: the plaintiffs were part of a “limited fund,” mandatory, non-opt out class action for resolution of punitive damages only. Because that element of the case was not appealed to the Court, the Court left for another day resolution of the classwide determination of punitive damages. Third, the Court’s quest for a national solution to the punitive damages problem and its equation of punitive damages and criminal fines presage impending federalism battles. By elevating a single punitive damages goal - that of retributive punishment - the Court sets the stage for a clash with state courts and legislatures who might be inspired to define their legitimate state interests in punitive damages differently.

ADL

Taxing Punitive Damages

Dan Markel and Greg Polsky (both of Florida State) have posted "Taxing Punitive Damages" on SSRN.  Here is the abstract:

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believed they deserved to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our view, however, such a blanket nondeductibility rule would, notwithstanding its theoretical elegance, be ineffective in solving the under-punishment problem. In particular, defendants could easily circumvent the nondeductibility rule by disguising punitive damages as compensatory damages in pre-trial settlements.

Instead, the under-punishment problem is best addressed at the state level by making juries “tax aware.” Tax-aware juries would adjust the amount of punitive damages to impose the desired after-tax cost to the defendant. As we explain, the effect of tax awareness cannot be circumvented by defendants through pre-trial settlements. For this and a number of other reasons, tax awareness would best solve the under-punishment problem even though it does come at the cost of enlarging plaintiff windfalls. Given the defendant-focused features of current punitive damages doctrine, this cost is not particularly troubling. Nonetheless, a related paper of ours furnishes a strategy for overcoming this tradeoff through some basic reforms to punitive damages law.

ADL

Choice of Law in Mass Torts

The folks over at Drug and Device Law have a very interesting post on this subject entitled Choice of Law, Punitive Damages and Harry Truman.

ADL

Florida Verdict Against Philip Morris

Earlier this week, a Florida jury returned a $300 million verdict in Lucinda Naugle's individual lawsuit against Philip Morris.  The jury awarded $56 million in compensatory damages plus $244 million in punitive damages. Here's a WSJ Health Blog post, as well as an editorial in today's NY Times urging that "There should be more lawsuits seeking not only monetary damages, but changes in how the tobacco industry markets its products."

The Naugle action is one of over 8000 post-Engle lawsuits in Florida. Engle was the massive statewide Florida class action against the tobacco industry that resulted in a 12-figure punitive damages verdict against the cigarette companies. When the Florida Supreme Court decertified the class in 2006, the classwide punitive damages verdict was lost, but the Florida Supreme Court held that the classwide factual findings would be given preclusive effect in subsequent individual trials. Thus, when Engle class members (Florida smokers) go to trial on cigarette claims, certain facts are already established without the need for new proof:  that nicotine is addictive, that cigarettes cause certain diseases, that the tobacco companies knew of certain dangers but failed to disclose that information, and so on. The post-Engle individual lawsuits began to reach trial this year, and so far they have mostly resulted in big wins for plaintiffs.

As I commented on this blog nine months ago, if the post-Engle plaintiffs continue to win at this rate, it may turn out that the Florida Supreme Court's decertification of the class action -- which at the time seemed like an important victory for the tobacco industry -- was an even greater victory for tobacco plaintiffs.

HME

$13.8 Million Smoker Punitive Damages Verdict Against Altria

In the Bullock case in Los Angeles -- more from Bloomberg.

BGS

Dan Markel on Taxing Punitive Damages

Dan Markel (Florida State) posts on PrawfsBlawg about his forthcoming article on taxing punitive damages.

BGS