TortsProf Blog

Engstrom & Venook on Common Benefit Fees and MDLs

Nora Freeman Engstrom & Todd Venook have posted to SSRN Common Benefit Fees to Promote MDL Integrity.  The abstract provides:

Multidistrict litigation (MDL) has long been dogged by worries about illegitimate—or even fraudulent—claims. These claims, and public concern about them, damage the system; they erode confidence in judicial processes, increase costs, and contribute to rising caseloads. But, while many have noted the problem, and some have even sought to address it, so far, judges’ arsenals have been limited. Some judicial efforts (such as Lone Pine orders) amount to overkill: The entry of a Lone Pine order threatens to chill the vindication of important rights, not merely the initiation of bogus claims. Other efforts, such as plaintiff fact sheets and census orders, suffer from the opposite problem: Because they lack teeth, these orders can encourage a game of judicial whack-a-mole, as some nonmeritorious claims may be rooted out even as more such claims are ushered in.

Against that backdrop, we offer an innovative and practical solution to address this problem head-on. In particular, we explain how MDL transferee judges can harness common benefit fees to induce plaintiffs’ lawyers to improve their screening practices, encouraging lawyers to cull invalid claims before they are filed. By assessing common benefit fees on a sliding scale, judges can financially reward those lawyers who meaningfully vet would-be clients—and penalize those who don’t. Over time, through tailored and targeted efforts, judges can ensure that attorneys are properly incentivized to review the factual basis of suits while also keeping courts open to claims of uncertain-but-possible merit.

Mullenix on the Principles of the Law of Aggregate Litigation

Linda Mullenix has posted to SSRN Aggregationists at the Barricades:  Assessing the Impact of the Principles of the Law of Aggregate Litigation.  The abstract provides:

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.

Mullenix on the Negotiation Class

Linda Mullenix has posted to SSRN The Short Unhappy Life of the Negotiation Class.  The abstract provides:

On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division approved a novel negotiation class certification in the massive Opiate MDL. Merely one year later September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.

This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry.

The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class.

The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace.

The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorney generals raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory.

The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster’s embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule.

It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model.

PA: J&J Subsidiary Loses Motion to Move Mesh Mass Tort Cases from Philly

Citing media coverage, Ethicon, a subsidiary of Johnson & Johnson, filed a motion to move consolidated pelvic mesh cases outside of Philadelphia and the five counties surrounding it.  In the past few months, several large verdicts have been returned against Ethicon in Philly.  Court of Common Pleas Judge Arnold New denied the motion in a one-page order that did not provide reasoning.  The Legal Intelligencer has the story.

Lawyers for Civil Justice Urges Reform of MDL Procedures

The report is here:  Download DC-_641863-v1-LCJ_Request_for_Rulemaking_Concerning_MDL_cases_2017

The gist:

According to Rule 1, the FRCP ‘govern the procedure in all civil actions and proceedings in the United States district courts.’    It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 45 percent of the federal docket.   The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising.  A solution is needed, and LCJ is urging the Civil Rules Advisory Committee to undertake an effort to remedy this situation by bringing MDL cases back within the existing and well-proven structure of the FRCP.  While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability.  Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP.

Judge Weinstein Surpasses 50 Years on the Bench

Citing a story at Law.com, Byron Stier at Mass Tort Profs notes that Judge Jack Weinstein of the Eastern District of New York has been on the bench for over 50 years.  Among other contributions, Judge Weinstein is known for his opinions in mass tort cases.

Ford Faces Sunroof Class Action

A suit filed in California alleges some of Ford's sunroofs are dangerous and Ford has been aware of it for nearly a decade.  The suit specifically alleges that as sunroofs have expanded over larger portions of the roof of cars, they have become less safe:

At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014.  

AdvantageNews.com has the story.

Golanski on Personal Jurisdiction in Mass Tort Litigation

Alani Golanski (Weitz & Luxenberg) has posted to SSRN Why Daimler Accommodates Personal Jurisdiction in Mass Tort Litigations.  The abstract provides:

National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.

Mueller on MDL Products Settlements

Christopher Mueller (Colorado), who has a terrific Evidence casebook, has posted to SSRN Taking Another Look at MDL Product Liability Settlements:  Somebody Needs to Do it.  The abstract provides:

This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.

Sheley & Frank on Prospective Injunctive Relief and Class Action Settlements

Erin Sheley (Calgary) and Ted Frank (Competitive Enterprise Institute) have posted to SSRN Prospective Injunctive Relief and Class Action Settlements.  The abstract provides:

Despite much controversy and criticism, the class action is alive and well. In particular, the injunctive remedy, requiring the defendant to change some aspect of its business practice, has become a common feature of class action settlements. This article explores a taxonomically distinct remedial category of injunction that has, as of yet, not generally been considered by courts and scholars as such: the prospective injunctive remedy. We demonstrate how the prospective injunctive remedy operates and argue that, in light of the special policy and legal problems it creates, courts should observe a presumption against approving settlements that contain provisions for prospective injunctive relief. In Part I we show how the parties to a class action have, in general, no incentive to benefit either absent class members or society at large and therefore require courts to police them to ensure justice. In Part II we describe the public law underpinnings of prospective injunctive relief and provide three case studies of consumer class actions that demonstrate how and why courts fail to accurately police this relief in the private law context. We compare the approved relief in these cases to the regulatory regimes they disrupt to argue that courts in this way allow class action litigation to produce bad public policy. In Part III we explore the ways in which these prospective remedies likewise produce bad law: namely, through the inappropriate creation of regulatory preemption and the potential violations of attorney-client fiduciary duty, the adequacy requirement of Rule 23(a)(4), and constitutional standing requirements. In Part IV we consider counterarguments and in Part V we conclude.

Via Stier/Mass Tort Profs

Lahav on Party Participation in Mass Torts

Alexandra Lahav has posted to SSRN Participation and Procedure.  The abstract provides:

How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.

Nail Salon Chemicals: A Mass Tort Risk?

The National Law Review discusses here.

Xarelto Mass Tort Docket Established in Philly

Philadelphia Court of Common Pleas Administrative Judge Kevin Dougherty has created a mass tort docket for Xarelto, a blood thinner alleged to cause uncontrollable and sometimes fatal bleeding.  Approximately 75 cases will be transferred to the court's Complex Litigation Center.  The Legal Intelligencer has the story.

Providence, RI Intends to Sue GM Over Ignition Switch Defects

In a pleading seeking a lead counsel role in the MDL, Joe Rice revealed that the City of Providence, RI intends to sue General Motors as part of the ignition-switch litigation coordinated in the Southern District of New York.    From news reports, it sounds like Providence intends to bring a diminished value claim, similar to claims brought against Toyota a few years ago.  (I've written about these kinds of risk-liability suits here).

National Law Journal has the story.

- SBS

Texas Supreme Court Rejects "Any Exposure" Theory of Asbestos Causation

In Bostic v. Georgia Pacific Corp., the Texas Supreme Court rejected the "any exposure" or "some exposure" theory of causation, and held that a "substantial factor test" applies to causation in asbestos cases.  

Debra J. LaFetra at Pacific Legal Foundation has a full write up of the decision. 

- SBS

Vairo on Disaggregation in Asbestos Cases

Georgene Vairo (Loyola LA) has posted to SSRN Lessons Learned by the Reporter:  Is Disaggregation the Answer to the Asbestos Mess?.  The abstract provides:

Described as an “elephantine mass” that “defies customary judicial administration,” asbestos litigation remains the longest-running mass tort in U.S. history. Ultimately, the efforts made to resolve the ever-expanding asbestos litigation failed. In 1997, in Amchem Products, Inc. v. Windsor, the United States Supreme Court struck down the use of a class action settlement to achieve a global resolution of all asbestos claims — those pending at the time and those of future claimants. In the wake of Amchem, dozens of asbestos defendants sought bankruptcy protection while plaintiffs continued to file claims in state and federal courts.  Between 1988 and 2010, a United States Government Accountability Office (GAO) analysis of the approximately 100 bankruptcy trusts’ payment data showed that the asbestos trusts had paid about $17.5 billion to 3.3 million claimants.

Since then, much has happened but basic problems remain. The patchwork system of plaintiffs claiming in federal and state courts, as well as the separate administrative claiming before bankruptcy trusts, raises complicated issues about how injured persons can be properly compensated while assuring that defendants are not assessed damages that are not warranted, and how to protect the trusts from fraud and preserve trust funds for future meritorious claimants.

The American Bar Association Torts and Insurance Section appointed a Task Force to look into issues currently confronting asbestos stakeholders.  I was appointed its Reporter.  This Article focuses on how the Task Force went about its work and developed a record.  It then presents some thoughts on how my service brought together my long-standing academic interest in how mass torts ought to be resolved and the realities of the current asbestos litigation.  What I have learned thus far has led me to question my once zealous advocacy of aggregated mass tort claims resolution.

When I served as Chairperson of the Dalkon Shield Claimant’s Trust, I wrote articles that focused on how the Trust resolved hundreds of thousands of claims. It is fair to say that I was a fan of aggregate resolution of mass torts. In my view, the use of multidistrict litigation, class actions, other aggregation tools, and even Chapter 11 reorganization provided fair and efficient vehicles for the resolution of mass torts.  Indeed, the Dalkon Shield Board of Trustees expressly adopted motivating principles as they began to put meat on the bones of the CRF.  First, and foremost, among these principles, was to “[t]reat all claimants fairly and equally, always focusing on the best interests of claimants collectively instead of on the interests of a particular claimant or group of claimants.” Another principle harkened back to the first:  “Prefer settlement and prompt payment of claims over arbitration and litigation.” Rereading these principles in light of the compelling testimony of two of the Task Force witnesses challenged my weltanschauung about mass tort dispute resolution.  Judge Robreno’s and Judge Davidson’s testimony about disaggregating cases into their core components, “letting lawyers be lawyers,” and getting cases ready for trial instead of obsessing about global or individual settlements is what led to the successful resolution of the cases before them.

Moreover, Judge Robreno’s testimony suggests that attempts at aggregated resolution of the “elephantine mass” were all failures, except for the MDL itself, which has largely wrapped up its work.  Rather, as Judges Robreno and Davidson testified, the disaggregation of asbestos claims allowed asbestos cases to be prepared for trial (or settlement discussions) more expeditiously.  Now, dying plaintiffs can get a shot at a prompt trial date rather than having to wait out a global settlement. Perhaps tending to the needs of particular plaintiffs is the best way to protect the interests of the whole in mass tort litigation after all.

--CJR

Negligent Design of FDA Approved Drug

On January 21, 2014, the Pennsylvania Sureme Court finally* decided Lance v. Wyeth.  The court held that drug manufacturers could be liable for negligent design of an FDA approved drug.  I believe this is the first jurisdiction to accept this theory.   Drug & Device Blog has a thorough analysis of the opinion.

- SBS 

 

*finally because the case was argued in 2011 and has been pending before the state supreme court for nearly three years.

Toyota May Settle Unintended Acceleration Cases

Ken Bensinger at the LA Times reports that Toyota is engaged in settlement talks over the sudden unintended acceleration (SUA) cases that resulted in death or injury.   (Toyota previously settled the economic loss cases, and the court approved that settlement last July).   Our friend Byron Stier, over at Mass Torts Profs, is quoted in the article.

- SBS

Gifford & Reynolds on CAFA and Parens Patriae Actions

Don Gifford & Bill Reynolds (Maryland) have published in the North Carolina Law Review Addendum The Supreme Court, CAFA, and Parens Patriae Actions:  Will it Be Principles or Biases?.  The abstract provides:

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and the liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state attorneys general often sued as parens patriae in litigation of nationwide significance. In Hood, the Supreme Court considers whether mass plaintiffs’ attorneys, by partnering with state attorneys general in parens patriae actions, will be able to circumvent the requirements of the Class Action Fairness Act that allow defendants to remove class actions and other forms of mass actions to the typically more defendant-friendly confines of federal courts. Resolution will turn on the Court’s interpretation of the statutory term “mass action.” A textualist interpretation, usually favored by Justice Scalia and his conservative colleagues, would not allow such removal—a decidedly anti-business result. At the same time, a purposive approach to interpreting the statutory provision, promoted by Justice Breyer, possibly would allow such removal. For each group of Justices, the conflict is clear: Will they follow their previously articulated principles of statutory interpretation or their ideological biases?

--CJR

Hines on Class Actions

Laura Hines (Kansas) has posted to SSRN The Unruly Class Action.  The abstract provides:

This article examines the modern “issue class action” and its tenacious existence in a hostile class action landscape.  I contend that this unauthorized, unbounded device is on a collision course with decades of Supreme Court jurisprudence narrowly interpreting the federal class action rule.  Rather than either suffering such an ignoble fate or continuing to stumble forward as an evolving judicial creation, I advocate instead a robust vetting and evaluative process through formal rulemaking channels.

The issue class action derives from Rule 23(c)(4), which has steadily emerged from a position of near obscurity in the federal class action rule to a widely embraced alternative to the classic (b)(3) damages class action.  This approach – authorizing a class action comprised solely of issues common to the class and excluding from that action adjudication of any issues requiring individual consideration – effectively eliminates one of (b)(3)’s two defining requirements, that common issues predominate over individual issues.  The Supreme Court’s recent class action decisions have underscored the Court’s consistently constrained reading of Rule 23, particularly with regard to lower court innovative efforts to bypass (b)(3)’s predominance requirement.

In my view, the wide-ranging implications of the issue class action can best be evaluated through an open process of formal rulemaking that includes consideration of recent judicial experimentation, Supreme Court precedent, the input of scholars, practitioners, judges, and other interested parties.  Only through such a robust inquiry could we determine whether the issue class action furthers the goals of Rule 23 and, if so, how to amend Rule 23 to accommodate this novel class action in order to reduce its risks and optimize its potential rewards.

--CJR