Mass Tort Litigation Blog

Rabin and Engstrom on No-Fault Compensation for Tobacco and Opioid Victims

Professors Robert Rabin and Nora Freeman Engstrom of Stanford Law School have posted to SSRN their article, The Road Not Taken: Perspectives on No-Fault Compensation for Tobacco and Opioid Victims, 70 DePaul L. Rev. 395 (2021).  Here is the abstract:

Cigarettes and prescription painkillers have both killed millions of Americans and diminished the lives of tens of millions more. This wreckage has generated waves of prolonged litigation—and, in fact, the evolution of this litigation has been strikingly similar. In both tobacco and in opioids, lawsuits were initially filed by individual victims of defendants’ tortious conduct. But in both instances, one-off suits saw virtually no success, foundering on vast resource disparities and a widespread perception that plaintiffs (smokers on the one hand, “addicts” on the other) were partly or mostly to blame. In time, plaintiffs adapted. States and cities took the reins, and these public actors initiated their own suits. This handoff (from private plaintiffs to public ones) succeeded in many respects. But it relegated individual victims to the sidelines and—crucially—consigned their quest for compensation to the back burner.

In this Essay, we zero in on this compensation question. We explore the fact compensatory claims got pushed aside and note that these claims have generally remained on the periphery. We further observe that, after the tort system left individual victims conspicuously empty-handed, support might have coalesced around the creation of a no-fault compensation scheme for tobacco or opioid-related harms. Yet, discussion of such a scheme has been quiet—and concrete action toward the creation of such a system has been notably non-existent. Why? We chalk this omission up to three stubborn realities. First, the will and capacity to strike a political compromise of this magnitude is lacking. Second, existing no-fault schemes have mixed scorecards, at best. And third, both tobacco and opioid victims pose particular challenges, as a perception that these individuals have contributed to their own harm has undermined any prospect of compensation through a no-fault scheme, just as surely as it dimmed plaintiffs’ prospects for recovery through tort.

Wendy Parmet on Paternalism, Self-Governance, and Public Health: The Case of E-Cigarettes

Professor Wendy Parmet (Northeastern Law) has posted to SSRN her article, Paternalism, Self-Governance, and Public Health: The Case of E-Cigarettes, 70 U. Miami L. Rev. 879 (2016).  Here is the abstract:

This article develops a normative framework for assessing public health laws, using the regulation of e-cigarettes as a case study. Although e-cigarettes are likely far less dangerous to individual users than traditional cigarettes, it remains uncertain whether their proliferation will lead to a reduction of smoking-related disease and deaths or to increased morbidity and mortality. This scientific uncertainty presents regulators with difficult challenges in determining whether and how to regulate e-cigarettes. This article presents a normative framework for analyzing such questions by offering three justifications for public health laws: impaired agency, harm to others, and self-governance. Each justification responds to the common charge that public health laws are impermissibly paternalistic. The self-governance rationale, which is the most robust, and most reflective of public health’s own population perspective, has been the least theorized. This article develops that theory, examining the basis for the justification as well as its limitations. The article then applies its normative framework to the regulation of e-cigarettes, focusing on the FDA’s so-called deeming regulations, which at the time the article was written were pending but have since been promulgated in a substantially similar form. The article supports the FDA’s ultimate decision to ban the sales of e-cigarettes to minors and to require the disclosure of warning labels based upon the impaired agency rationale. However, the scientific uncertainty renders the harm rationale inadequate. As a result, the regulations’ pre-market review requirement must rely on the self-governance rationale for its normative justification. Given the lack of clear legislative guidance and political engagement, the article concludes that the pre-market review provisions are normatively problematic: if public health advocates want to claim the mantle of self-governance, they must take it seriously.

NFL and Big Tobacco?

The New York Times has an article today on the link between NFL and Tobacco called NFL's Concussion Research Deeply Flawed. 

What does this mean for the NFL settlement?  Should the issue be approached in the mode advocated long ago by Francis McGovern - that is, by allowing the mass tort to mature through multiple trials before a settlement is reached?  

This article also raises the question of how the law promotes and creates disincentives for entities to conduct reliable scientific studies.  For interesting takes on that question, compare Wendy Wagner, Choosing Ignorance in the Manufacture of Toxic Products with Wendy Wagner, When All Else Fails: Regulating Risky Products Through Tort Litigation.  

 

Howard Erichson on Judge Jack Weinstein and the Allure of Antiproceduralism

Professor Howard Erichson (Fordham Law and Editor, Mass Tort Litigation Blog) has posted to SSRN his article, Judge Jack Weinstein and the Allure of Antiproceduralism,  64 DePaul L. Rev. 393 (2015).  Here's the abstract:

In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor of substantive justice, but technicalities are in the eye of the beholder, and this Article asks what is lost when a judge steers around procedural constraints.

Constructing Issue Class Actions

There's been a lot of chatter over the past few years about the greater use of issue classes.  The Rule 23 Subcommittee in its recent report (p. 41) indicated that issue classes top its agenda for possible reform and there's been a greater willingness to rely on Rule 23(c)(4) among the circuit courts over the last few years.  Much of the scholarship on issue classes thus far, however, has focused on how to use issue classes in conjunction with Rule 23(b)(3)'s predominance requirement.  Professor Laura Hines (Kansas) has, for instance, written a series of articles on the topic and there have been several debates in symposium pages, such as DePaul's 2013 symposium.  

Whatever side of the debate one adheres to on the to-be-or-not-to-be question, the courts are embracing issue classes.  Thus, there remains much work to be done on discerning which issues should qualify for certification, how to think about Seventh Amendment Reexamination Clause questions, and how to compensate plaintiffs' attorneys who initiate issue classes.

I've recently written a paper on issue classes that takes some steps toward fleshing out these problems.  The paper is long since it's meant to be a one-stop shop for judges and attorneys on the subject, but here are the critical points worth underscoring:

First, one of the main difficulties of our system is that the focus in massive lawsuits has shifted to the ways in which the plaintiffs are dissimilarly situated, even when the defendant's conduct is uniform.  Take the GM ignition switch debacle or the Toyota acceleration cases, for example.  Corporate actions are nonindividuated; it doesn't make sense to litigate what GM or Toyota did in 40,000 different cases.  (Draft pp 5-8) But defendants have successfully shifted the procedural focus to how their behavior affected claimants, which tends to defeat class certification because common questions do not predominate over individual ones.  The issue class has the potential to recapture what is common to the plaintiffs: defendant's conduct--at least so long as that conduct is nonindividuated.  One can capture this notion by divvying up the legal elements in any claim or defense as "conduct components," which concern the defendant's conduct, or "eligibility components," which concern a plaintiff's eligibility for relief.  (Draft pp 15-29)

Second, by embracing the standard suggested by the ALI's Principles of the Law of Aggregate Litigation, courts can ease the supposed tension (to the extent any remains) between Rule 23(c)(4) and Rule 23(b)(3).  (Draft pp 31-32)  Courts should certify issue classes where resolving the issue would "materially advance the resolution of multiple civil claims by addressing the core of the dispute in a manner superior to other realistic procedural alternatives, so as to generate significant judicial efficiencies." (Principles, 2.02(a)(1), 2.02 cmt. a, 2.08, 2.08 cmt. a)  Predominance is embedded in the "materially advance" language and superiority is included as a condition that certifying the issue would be "superior to other realistic alternatives" such that it "generate[s] significant judicial efficiencies."  Moreover, the courts themselves seem to have reached a general consensus on this matter, with even the Fifth Circuit embracing issue classes in In re Deepwater Horizon, 739 F.3d 790, 804 (5th Cir. 2014).  (Draft p. 30)

Third, courts must figure out a way to compensate (and thus incentivize) plaintiffs' attorneys.  This is perhaps the trickiest part because of both the lack precedent and doctrinal hurdles such as Lexecon.  Lexecon presents a special challenge in multidistrict litigation cases where issue classes might prove most useful.  Nevertheless, one need not invent a theory out of whole cloth.  Charging liens and the common-benefit doctrine provide sound analogies for fashioning a coherent path forward.  (Draft pp 42-50)

Finally, there are some hurdles to making issue classes stick, such as preclusion doctrines, adequate representation, and the Seventh Amendment Reexamination Clause.  Thus, the paper concludes by suggesting solutions to these problems and arguing that preclusion can provide a way to coordinate dispersed public and private regulators.

As always, comments are welcome (eburch at uga.edu).

11th Circuit holds Engle progeny cases preempted

You can find the surprising opinion here.   The crux of the opinion is the last paragraph:

Cigarette smoking presents one of the most intractable public health
problems our nation has ever faced. It was not so long ago that anyone would walk
a mile for a Camel: cigarette smoke once filled movie theaters, college classrooms,
and even indoor basketball courts. For fifty years, the States and the federal
government have worked to raise awareness about the dangers of smoking and to
limit smoking’s adverse consequences to the greatest extent possible, all without
prohibiting the sale of cigarettes to adult consumers. To that end, the State of
Florida may ordinarily enforce duties on cigarette manufacturers in a bid to protect
the health, safety, and welfare of its citizens. But it may not enforce a duty, as it
has through the Engle jury findings, premised on the theory that all cigarettes are
inherently defective and that every cigarette sale is an inherently negligent act. So
our holding is narrow indeed: it is only these specific, sweeping bases for state tort liability that we conclude frustrate the full purposes and objectives of Congress.
As a result, Graham’s Engle-progeny strict-liability and negligence claims are
preempted, and we must reverse the District Court’s denial of judgment as a matter
of law. For these reasons, the judgment of the District Court is REVERSED.

Case: 13-14590 Date Filed: 04/08/2015 Page: 50 of 50

In Memorium: Ronald L. Mottley (1944-2013)

Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."

HME

Update: here's a link to the New York Times article. 

ECB

Supreme Court Petition in Engle Progeny Case

Am Law Litigation Daily has an article on the tobacco companies' filing another certiorari petition in an Engle progeny case: Tobacco Companies Seek Supreme Court Cert in Engle Case, by Ross Todd.  Here's their petition for a writ of certiorari.  The appellate team includes Greg Katsas (Jones Day), Paul Clement (Bancroft), and Miguel Estrada (Gibson Dunn).

I've previously addressed issue preclusion, verdict variability, and problems with the Engle case in my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013 (2007).

BGS

Khoury, Menard & Redko on the Role of Canadian Private Law in the Control of Risks Associated with Tobacco Smoking

Professors Lara Khoury and Marie-Eve Couture-Ménard (McGill), and Olga Redko (LL.B./B.C.L. Candidate, McGill) have posted to SSRN their article, The Role of Private Law in the Control of Risks Associated with Tobacco Smoking: The Canadian Experience, 39 Am. J. L., Med. & Ethics 442 (2013).  Here's the abstract:

Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, this text tackles Canada’s recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada’s provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. The authors address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.

BGS

Engle's Progeny March On

Earlier this month two tobacco trials with origins in the Florida Supreme Court's affirmation of classwide issue preclusion in Engle resulted in large awards. 

Searcy v. R.J. Reynolds Tobacco Co., M.D. Fla., No. 3:09-cv-13723, verdict rendered 4/1/13.  26 million.

Aycock v. R.J. Reynolds Tobacco Co., M.D. Fla., No. 3:09-cv-10928, verdict rendered 4/18/13.  5.6 million.

Juries found comparative negligence on the part of smokers in both cases.  See BNA Class Action Reporter for analysis and details.

ADL

Florida Tobacco Litigation Soldiers On

The Florida Supreme Court affirmed the preclusive effect of Engle - giving further support to the development of issue class actions.  The opinion is here: http://www.floridasupremecourt.org/decisions/2013/sc12-617.pdf

ADL

Junk Food: The Next Mass Tort?

The allegation that sugar is "toxic" and the recent article in the NYTimes "The Extraodinary Science of Junk Food" indicates that fast food litigation may indeed be the next tobacco.  I am interested, do we have readers who are litigating or defending cases?  I found a 2008 article in Findlaw on the subject for those interested: Obesity, the Next Tobacco?

UPDATED:  There is an article on one of the centers of food litigation: The Northern District of California in the Recorder (h/t Tort Prof Blog).

ADL

Engle's Progeny

On November 26 the Supreme Court denied cert in RJ Reynold Tobacco Co. v. Clay, an appeal from a Florida state court decision to give the Engle court ruling preclusion effect.

Engle, recall, is the tobacco issue class action certified and upheld by the Florida Supreme Court. Does the denial of cert pave the way for issues class actions to flourish (at least for the moment) or is this just not the right vehicle? 

See Scotusblog for a summary and links.  ADL

Comparative Case Valuation: Tobacco Edition

BNA Class Action Litigation Reporter has an article about Engle's progeny and how the Florida courts are dealing with the variation in jury verdicts in those cases.  Here the link - behind a pay wall unfortunately.

In sum and substance, the Florida Supreme Court permitted an issue class action regarding the conduct of the tobacco companies to stand and ruled that the results have preclusive effect in subsequent cases.  Now the Individual cases are being litigated.  There are many plaintiffs verdicts.  BNA describes that there have been 50 judgments and compensatory damages were awarded in 35 cases.  Of those, in  at least 10 the jury awarded more than $7 million.  Not all have survived on appeal. 

I am interested in this suit because I think issue class actions are the cutting edge of class litigation and because there is potential here to use statistical methods to come up with a solution that is better than spending many millions litigating every case to judgement and appealing it.

  Here is the list of verdicts above $7 million:

$8 million compensatory and $71.2 million punitive damages (vacated on appeal) - Webb  (No. 1D10-6557, 4/9/12) 

$ 8 million compensatory - Tate (No. 2007–CA-021723 (17th Cir. Broward County))

$7.8 million compensatory - Campbell (No. 2008 CA 2147 (1st Cir. Escambia County)) (upheld on appeal).

$10 million compensatory - Cohen (No. 2007–11515 (17th Cir. Broward County)).

$7 million compensatory - Grey (No. 2007–CA-002773 (1st Cir. Escambia County)) (upheld on appeal)

$56.59 million compensatory - Naugle (No. 07–036736CA (17th Cir. Broward County)).

$15 million compensatory - Putney (No. 2007–CV-36668 (17th Cir. Broward County)).

$10.8 million compensatory - Townsend (No. 01–2008–CA-003978 (8th Cir. Alachua County)) (upheld on appeal) (40 million punitive damages award struck down). 

$20 million compensatory - Alexander (No. 07–46830–CA-10–4 (11th Cir. Miami-Dade Co.)) (on appeal)

$10 million compensatory and $20 million punitives - Smith (No. 09-719-CA (14 Cir. Jackson County) (on appeal)

Readers who know of others, or have a list of all the verdicts, please let us know.  ADL

 

 

 

 

Links to the Florida/Tobacco Cert Petitions

Scotusblog has the links to all the linked petitions in the litigation arising out of the use of preclusion in issue class actions.  Here is the link to Scotusblog.

The question presented is "whether the imposition of liability based on earlier litigation without any assurance that the earlier litigation actually decided the precluded issue violates the Due Process Clause of the Fourteenth Amendment."

ADL

The Future of Class Actions (and How to Stop It)

The title of this post is taken, very unimaginatively, from Jonathan Zittrain's The Future of the Internet and How to Stop It. 

Adam Zimmerman has another great post on PrawfsBlawg today -- called the Privatized Attorney General -- about the possibility that attorneys general might save the class action device through parens patrea suits.  Worth reading.

On the mass torts side of the spectrum, apparently WLF has filed an amicus brief seeking cert in the progeny of Engle - the case is Philip Morris USA, Inc. v. Campbell. The argument is that the use of issue preclusion in these tobacco cases, available because of a Florida Supreme Court ruling upholding an issue class action in the tobacco litigation there.  

If any reader has more information, is submitting additional amicus briefs or authored the cert petition, please the informaiton to me so that I can post about it.  The Wal-Mart v. Dukes opinion indicates to me that the Court (or at least Justice Scalia) is itching to beef up some defense-side due process rights, and this case is a good vehicle for that.

ADL

Supreme Court Rejects Tobacco Appeal

The Supreme Court yesterday rejected an appeal filed by Phillip Morris of a $270 million dollar judgment in a state court class action in Louisiana.  Justice Scalia had issued an order last September blocking the verdict.  .

As Lyle Dennison writes on Scotusblog, this is suprising given the Court's hints in the Wal-Mart decision. He explains:

After the Wal-Mart decision, the tobacco companies made a new plea to the Court to take up their case, since the Court had not resolved any constitutional questions in the retailer’s case.  But, at the most, Court observers had speculated that, if the Court did not grant review, it at least would wipe out the Louisiana court’s verdict and order it to reconsider under Wal-Mart.  An outright denial was not at all anticipated.

ADL

Some Links to Analysis of the Wal-Mart Opinion

Wal-Mart around the blogs:

Adam Steinman's recap of the case is available on Civil Procedure & Federal Courts Prof Blog.

Sergio Campos analyzes the case on Prawfsblawg.

Lyle Dennison's analysis is on Scotusblog.  Dennison points out the concrete importance of Wal-Mart v. Dukes for mass torts, particularlyPhilip Morris USA, Inc., et al., v. Jackson (docket 10-735) :

That is a case that turns entirely on constitutional questions — a massive class-action lawsuit against the nation’s major cigarette companies in Louisiana state court that resulted in an award of $270 million to a class of former smokers.

Justice Scalia stayed that ruling last September.  The Court has been holding the case until it decided the Wal-Mart case.  It now is expected to take action on that case; its options include granting the case, or sending it back to Louisiana courts to consider the impact of the Wal-Mart decision.   Since the Wal-Mart decision turns mainly upon the meaning of a federal court rule (Rule 23) that does not apply to class-action lawsuits in state court, it is unclear how much specific guidance state courts could take from Monday’s decision.

ADL

Tobacco Companies Not Liable to Missouri Hospitals

Bloomberg News and the New York Times published an article yesterday detailing a Missouri jury's findings in a lawsuit against Phillip Morris, R.J. Reynolds, Lorillard, and other cigarette makers.  Roughly forty MIssouri hospitals alleged that the tobacco companies manipulated the nicotine in cigarettes, misrepresented the health effects of smoking, and requested more than $455 million in damages.  After deliberating for seven days, the jury rejected the hospitals' claims.  The hospitals are still deciding whether to appeal.

The Wall Street Journal Law Blog has a related article, The Best and Worst Weeks for Big Tobacco.

ECB 

Tobacco Medical Monitoring Decision in Eastern District of New York

Judge Amon in the Eastern District of New York last week dismissed plaintiffs' medical monitoring claim in a proposed tobacco class action.  Caronia v. Philip Morris USA, Inc., No. 06-CV-224 (E.D.N.Y. Jan. 13, 2011).  Here's the decision.

BGS