Sunday, August 8, 2021
The journal, Law & Contemporary Problems, has published an an issue In Memoriam: Francis McGovern, entitled, "Innovations in Complex Litigation and Settlement." Published authors include the following: Lynn Baker (Texas Law); David Bernick (Kirkland & Ellis); Stephen Burbank (Penn Law); Elizabeth Cabraser (Lieff Cabraser); Sean Farhang (Berkeley Law); Brian Fitzpatrick (Vanderbilt Law); Gary Friedman; Myriam Gilles (Cardozo Law); Deborah Hensler (Stanford Law); Samuel Issacharoff (NYU Law); Robert Klonoff (Lewis & Clark Law); David Levi (Duke Law); Richard Marcus (UC Hastings Law); Troy McKenzie (NYU Law); Senior Judge Dan Polster (N.D. Ohio); D. Theodore Rave (Texas Law); Judith Resnick (Yale Law); Christopher Seeger (Seeger Weiss); Charles Silver (Texas Law); and former Judge Vaughn Walker (N.D. Cal.). Professor McGovern is also credited as co-author for an article for which he had the original idea and was very involved in assembling the central argument.
Monday, July 12, 2021
Wednesday, June 2, 2021
*First published as Multidistrict Litigation and Bayer's Roundup Gambit in Westlaw Today/Reuters Legal
Bayer and the plaintiffs’ lawyers suing it over its popular weed killer, Roundup, are playing a high-stakes, billion-dollar chess match. Like most corporate defendants in Bayer’s position, it wants lawsuits to end.
But finality eludes Bayer for two reasons.
First, non-Hodgkin’s lymphoma, the disease several juries linked to Roundup’s active ingredient glyphosate, doesn’t develop overnight. It takes a while, often 10-15 years after exposure. Yanking Roundup off the market today would still leave Bayer with at least another decade of litigation.
Second, Roundup makes Bayer lots of money. Sticking a warning label on it would hurt the company’s bottom line. Why would consumers risk cancer to kill dandelions?
Enter Bayer’s elaborate gambit.
Step one: preemption.
Bayer accurately predicted that the Ninth Circuit (despite a relatively conservative panel) would reject its argument that the Federal Insecticide, Fungicide, and Rodenticide Act, fondly known as FIFRA, preempts claims that it failed to warn weed exterminators about the risks of non-Hodgkin lymphoma. In May, the majority in Hardeman v. Bayer ruled that Mr. Hardeman’s failure-to-warn claim was “equivalent to” and “fully consistent with” FIFRA and thus not preempted under the Supreme Court’s 2005 precedent, Bates v. Dow Agrosciences LLC.
While it awaited the Hardeman decision, Bayer worked to manufacture a circuit split elsewhere that might tempt the Supreme Court to weigh in and reconsider Bates. For that, it tapped Dr. John Carson, a Georgia plaintiff who alleged a type of cancer that science has not linked to Roundup, malignant fibrous histiocytoma. Siding with Bayer, the Southern District of Georgia dismissed Dr. Carson’s failure-to-warn claim because FIFRA preempted it. Bayer won.
But that short-term win undermined its overarching goal. So, Bayer sacrificed by entering into a settlement of sorts with Dr. Carson: for $100,000, he would appeal the dismissal and the preemption ruling. Winning on preemption before the Eleventh Circuit would increase the likelihood of Supreme Court review, at least by a little, despite Bayer’s sly pay-to-appeal scheme.
The possibility of a circuit split and complete preemption serves another purpose, too. It acts like a sword of Damocles endangering plaintiffs who haven’t yet settled, haven’t yet sued, or haven’t yet developed non-Hodgkin lymphoma despite using Roundup. Plaintiffs won all three jury trials to date, notwithstanding a bifurcated trial structure that tends to favor defendants. Compared with the mature asbestos cases that led to the derailed Amchem settlement, the Roundup suits are barely entering grade school. But plaintiffs’ fortunes can turn.
Step two: certify a futures class.
Pressing the slimmest of advantages (after all, the Supreme Court grants certiorari in only around 3.4% of civil cases per year), Bayer teamed up with the same amenable plaintiffs’ counsel whose attempt at certifying a futures class last summer ended in a swirl of controversy and a withdrawn motion. Presenting a second, then a third futures class proposal, they purport to shelter three groups of class members from preemption’s peril: (1) people diagnosed with non-Hodgkin lymphoma after Roundup exposure that haven’t hired lawyers yet; (2) people who have used Roundup but haven’t yet developed non-Hodgkin lymphoma, and (3) all of their spouses, parents, and dependent children—collectively, the “derivative claimants.”
But the preemption refuge and the benefits last a mere four years. And they come at a steep price. In exchange for notice, medical help, and some streamlined compensation, class members must give up punitive damages and medical monitoring claims, as well as bind themselves (with little wiggle room) to a seven-member science panel’s verdict about whether glyphosate can cause non-Hodgkin lymphoma.
After the four-year détente lifts, few plaintiff’s lawyers would litigate Roundup claims in the face of such weighty impediments.
For the gambit to work, the judge must certify the class. But Judge Vince Chhabria is no pawn and he declined to do so. His brief six-page opinion followed a day-long hearing transparently livestreamed in Brady-bunch boxes for a clamoring public to see.
In both the hearing and the opinion, Judge Chhabria challenged the settlement’s upside: Four years of medical monitoring for a disease with a 10-15 year latency period is “far less meaningful than the attorneys suggest.” Those with later diagnoses “will not be able to request compensation from the fund,” he wrote.
As Judge Chhabria pointed out, problems with the proposed futures class abound, including, most centrally, the constitutionality and utility of notice and the hamstrung tort claims. For plaintiffs, the downsides require “major sacrifices,” he explained.
First, on notice, what value does the settlement add that a well-incentivized plaintiffs’ bar lacks? The proposal allocates up to $55 million for settlement administration and notice costs for five months. Yet, over two years ago, the Wall Street Journal reported that plaintiffs’ lawyers spent an estimated $77.8 million to advertise Roundup lawsuits for eight months.
Setting aside the constitutional impossibilities of notifying future spouses and unborn children, what people need is meaningful information at a meaningful time. Noise fills the world. Our bandwidth is limited.
A Roundup user without cancer is far more likely to mindlessly scroll through whatever notices pop up than to engage and investigate. Someone newly diagnosed with non-Hodgkin lymphoma, however, is hungrily Googling for information and answers.
Second, consider what plaintiffs bestow upon Bayer by giving up punitive damages—absolution. But the alleged bad behavior continues. Imagine fining attempted murderers and freeing them to continue their spree. Roundup still lines store shelves and if it does what plaintiffs contend, it will endanger public health for decades to come.
Third, class members must litigate under the umbrella of the science-panel’s findings. “But the reason Bayer wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials,” wrote Judge Chhabria.
It is possible that the parties will attempt yet another class settlement geared toward only those Roundup users who have non-Hodgkin lymphoma but no lawyer. Still, what is the upside to the court? Frame it in terms of class superiority: Is certifying a class better than the other ways courts can fairly and efficiently resolve plaintiffs’ claims? Judge Chhabria already faces a scrum of centralized lawsuits. And certifying a class will not end disputes.
Despite a settlement class in the NFL Concussion cases, litigation continually bubbles up, most recently in terms of Black players alleging class settlements show bias. Despite a settlement class in BP’s Deepwater Horizon Oil Spill, over 6,300 clean-up workers have continued to sue over latent injuries like blood-related cancers from chemical dispersants through the settlement’s back-end litigation option. Despite a settlement class in Diet Drugs, 50,000 would-be class members opted out, claims overwhelmed the class, and litigation before the same judge continues today—21 years later.
There is no neat end game in sight for Bayer or the courts, even as it debuts its five-point plan to reassure stockholders. Remanding cases once common discovery ends and taking up the old saw of trial may sound antiquated in the face of futuristic procedures that promise the next best thing. Yet, it has worked for centuries. Perhaps it’s just that the weeds always seem greener on the other side.
Tuesday, February 16, 2021
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
Friday, January 1, 2021
AALS Section on Litigation Panel on the Growth of Third-Party Litigation Finance: Opportunities and Challenges
At the online 2021 Annual Meeting of the Association of American Law Schools, the AALS Section on Litigation program will be the "The Growth of Third-Party Litigation Finance: Opportunities and Challenges":
Over the last decade, third-party litigation finance in the United States has quickly grown into a $10 billion industry. Third-party litigation finance has been praised for increasing access to justice and reducing variations in litigant resources and risk tolerance, but concerns have been raised about champerty, less meritorious litigation, and effects on lawyer independence and client control. This program will explore third-party litigation finance with attention to contested issues such as fee splitting, claim assignment, aggregate litigation, and attorneyclient privilege. The program will explore proposals such as disclosing third-party litigation finance in litigation and permitting non-lawyer ownership or investment in law firms.
The panel will take place from 2:45 p.m. to 4:00 p.m EST on Tuesday, January 5, 2021, and I will serve as moderator for the nationally leading panel of speakers:
- John Beisner, Partner and Leader, Mass, Torts, Insurance and Consumer Litigation Group, Skadden, Arps, Slate, Meagher & Flom LLP;
- Jonathan Molot, Professor of Law, Georgetown University Law Center, and Co-Founder and Chief Investment Officer, Burford Capital;
- Victoria Shannon Sahani, Associate Dean of Faculty Development and Professor of Law, Arizona State University Sandra Day O'Connor College of Law;
- Anthony Sebok, Professor of Law and Co-Director, Jacob Burns Center for Ethics in the Practice or Law, Yeshiva University Cardozo School of Law; and
- Maya Steinitz, Professor and Bouma Family Fellow in Law, University of Iowa College of Law.
Wednesday, December 23, 2020
Civil Justice Fest Panel Videos from the Law & Economics Center at George Mason University Scalia Law School
The Law & Economics Center at George Mason University Scalia Law School has posted online the videos for all of the panels for Civil Justice Fest: A Month of Dialogues on the Most Pressing Civil Justice Issues.
Tuesday, December 22, 2020
Article in Legal Newsline -- Plaintiffs lawyer rips colleagues over multidistrict litigation fees, pressure tactics, by Daniel Fisher:
Federal multidistrict litigation, a procedure intended to resolve mass-tort lawsuits fairly and efficiently, has mutated into an unethical moneymaking machine for lawyers that is badly in need of reform, a prominent plaintiff attorney says as he prepares to lobby for changes.
Conservatives and tort-reform groups have long criticized MDLs as a form of asymmetric warfare against defendants in which thousands or even tens of thousands of lawsuits are gathered before a single federal judge who frequently sets settlement, not trial on the merits, as the goal. But it is unusual for a plaintiff attorney to lodge such a fierce critique on the procedure that has earned his colleagues billions of dollars in fees.
King & Spalding's product liability group notched victories this year, such as erasing a $454 million defective medical equipment verdict against Kimberly-Clark Corp. at the Ninth Circuit and helping Honda toss $1.7 billion worth of defect claims, landing the group a spot among Law360's 2020 Product Liability Groups of the Year.
Andy Bayman, head of the firm's trial and global disputes practice group and a product liability lawyer himself, told Law360 that product liability is "a big and important practice" of the firm. The practice group's 170 lawyers, with more than 60 partners, work from nine of the firm's offices, including locations in Atlanta, Houston, Los Angeles and New York.
Tuesday, October 13, 2020
For the mass tort and MDL enthusiasts of the world, I hope you'll be able to join me, Chris Seeger, and Judge John Koeltl on Tuesday, October 20, at 2pm EST via zoom for a discussion hosted by NYU's Civil Justice Center.
We'll be talking about MDLs and how to improve them, with topics ranging from so-called claims census, the need for remands, leadership's ethical obligations to nonclient plaintiffs, the role of the MDL judge in non class MDLs (and during settlements), and ways to reinvigorate the jury trial in the midst of the covid19 pandemic. I'll also be highlighting some of the critiques that I have of the system as well as ways that we might address them.
We plan to take audience questions after each of our topics and I'd love to hear from you.
Registration is free (I think) and has been approved for 2 hours of CLE credits in the areas of professional practice.
Monday, May 25, 2020
As our readers tend to know, MDLs prioritize efficiency. That is, after all, what the statute was designed to do--promote efficient resolution.
But what's often unknown is the best way to promote efficiency and whether efficiency might have unintended consequences.
Back in 2019, the American Bar Association (ABA) called for courts to appoint special masters regularly in MDLs. Its report claimed that multidistrict proceedings in particular could “benefit from specialized expertise,” and that “[e]ffective special masters reduce costs by dealing with issues before they evolve into disputes and by swiftly and efficiently disposing of disputes that do arise.”
The ABA’s resolution thus urged judges to appoint special masters in complex cases at “the outset of litigation” and permit them to do everything from oversee discovery and pretrial litigation to conduct trials based on parties’ consent, allocate settlements, and administer claims. Failing to do so, it cautioned, “[r]egardless of the reason,” “may disserve the goal of securing ‘a just, speedy, and inexpensive determination.’” Neither this reproach nor the ABA’s empirical claims included empirical support, however.
My co-author, Margie Williams, and I set out to investigate. But we didn't just look into special masters, we considered everyone that judges allocate power or authority to in MDLs: magistrate judges, claims administrators, lien resolution administrators, and even banks. We posted our article, Judicial Adjuncts in Multidistrict Litigation, on SSRN today and the paper will appear in Columbia Law Review this December. But for those of you who'd prefer the quick version, here's a summary of our findings:
Proceedings with special masters lasted 66% longer than those without them.
Using a duration model allowed us to investigate this statistic further by controlling for a proceeding's outcome (settlements uniformly took longer), personal-injury claims (which likewise took longer), and the number of actions in a proceeding (the more actions, the longer the proceeding lasted).
Nevertheless, appointing a judicial adjunct of any kind made the proceedings continue longer than they otherwise would, all else being equal.
Designating a judicial adjunct meant that the proceeding was 47% less likely to end. And for every additional adjunct appointed, there was an 11% decrease in the probability of a proceeding ending.
Of course, magistrate judges are salaried court employees. Appointing them does not add to parties' cost. But parties must pay for special masters, claims administrators, etc., which raises questions about costs. After all, Rule 1 isn't just concerned with efficiency; it's concerned with securing "the just, speeding, and inexpensive determination of every action and proceeding." Here, however, we ran into a roadblock:
Compensation information was either undisclosed or affirmatively sealed for 62% of private adjunct appointments.
Some of the payments that we could unearth ran into the millions. In the Actos proceeding, for instance, Special Master Gary Russo charged over $4.7 million and Deputy Special Master Kenneth DeJean charged over $1.3 million. And special settlement masters Ken Feinberg, Michael Rozen, John Trotter, and Cathy Yanni collectively charged over $9.4 million to administer the Zyprexa settlement.
Even though we couldn't always identify the amounts charged, we were able to discern that plaintiffs alone bore the costs for 54% of private adjuncts, meaning that in over half the the appointments, defendants did not contribute.
To try and figure out why judges appoint judicial adjuncts if proceedings with adjuncts cost more and last longer, we conducted confidential interviews with plaintiff and defense attorneys, special masters, claims administrators, magistrate judges, and district court judges with a wealth of MDL experience.
Interviews revealed two competing narratives. In one version, courts outsourced to effectively manage complex cases behind the scenes and closely monitored those appointed. In the other, repeat players in both the bar and the private-adjunct sector came to mutually beneficial arrangements that exposed real-life problems over capture, self-dealing, bias, transparency, and ad hoc procedures.
You'll just have to read the paper for those juicy tidbits (and there are plenty). They can be found in Part IV.
We did create some pretty fascinating data visualizations that were just too detailed to work in the article, so I thought I might share those with you here instead. I'd just ask that before you quibble with our categorizations that you read the caveats and explanations that we provide in the paper itself. But of course we'd welcome feedback. The following visualization provides what I think of as a snapshot of the lifecycle of an MDL, with critical events like centralization, settlement, and dispositive decisions included alongside judicial adjunct appointments, which are also color coded. A different version of the graphic that's less "busy" appears in the paper. Clicking on the graphic will bring up an interactive version that allows you to see more details.
As our readers surely know, it's difficult to pinpoint all of the factors that make a proceeding complex. Nevertheless, we tried! Of course, we can't measure things like the difficulty of proving causation, but we did code for the way the proceedings were resolved (as judged by the majority of the actions--some individual settlements may have occurred, for instance, even in proceedings we marked as "defense wins"); whether the proceeding included personal-injury allegations, whether the defendants were related to one another (e.g., parent-subsidiary), and the number of actions in the proceeding.
The following visualization includes some of those factors, pairing them alongside the days to a proceeding's closure, the number of actions in the proceeding, and the number of judicial adjuncts in the proceeding. Again, we provide some important qualifiers in the paper itself.
Here are two: First, we use the official closed date rather than the settlement date because many of our adjuncts were appointed post-settlement to help administer the settlement program. Thus, the date the the court formally closes the proceeding remains an important milestone. (You can still see settlement dates in the above graphic.)
Second, in some proceedings, the number of actions filed on the court docket may well undercount the actions affected by the MDL. This is because global settlements often include state-court plaintiffs and unfiled claims, judges have begun to create shadow dockets, and parties institute tolling agreements so that claims do not actually appear on the docket. Unfortunately, systematic data is not publicly available to remedy these deficiencies.
Even with those caveats in place, you might find this interesting--I certainly did:
Again, clicking on the graphic above will open an interactive version.
I hope this post is enough to interest you in the paper itself. We offer a number of theoretical contributions and suggestions to help chart a path forward that may interest MDL judges and attorneys.
As always, we welcome your comments.
Thursday, May 14, 2020
I hope everyone is navigating the pandemic healthy and (relatively) sane. I know I have not posted in a while, but I want to share with everyone a lecture I gave at Ohio Northern University School of Law discussing the causation element in mass tort cases. I focus specifically on the Roundup MDL in the Northern District of California. I really appreciate the sophisticated audience this blog attracts. Accordingly, I would love to hear your comments on the lecture, which can be found here. Below is the abstract:
This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School of Law, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is “common,” or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of that claimant. For that reason, courts have often refused to certify class actions, or have otherwise been reluctant to utilize collective procedures, where issues of causation predominate the proceedings. It is thought that in such cases plaintiffs are entitled to a more tailored, individualized hearing to accurately assess causation consistent with due process. This essay questions this common-sense notion that the issue of causation is an “individual” issue and argues that causation is actually much more “common” when one examines the causation element and its proof in greater depth. The essay concludes by suggesting ways in which the “commonality” of causation can be addressed in litigation to better fulfill the deterrence and compensation objectives of the litigation.
Tuesday, May 5, 2020
Article in the Wall Street Journal -- Liability Shield Is Next Coronavirus Aid Battle in Congress, by Siobhan Hughes and Jacob Gershman.
Thursday, February 13, 2020
Article in the Wall Street Journal -- Bayer Strives to End Lawsuits Over Roundup—While Still Selling It, by Laura Kusisto, Ruth Bender, and Jacob Bunge.
Wednesday, January 22, 2020
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.
January 22, 2020 in Aggregate Litigation Procedures, Class Actions, Conferences, Ethics, Lawyers, Mass Tort Scholarship, Preemption, Procedure, Products Liability, Punitive Damages, Science, Trial | Permalink | Comments (0)
Tuesday, December 10, 2019
Since I published Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation last May, I’ve received a lot of private emails from lawyers in the trenches who agree with my diagnosis of the problems in MDL. As the book details, incentives within multidistrict litigation tend to skew toward insiders’ self-interest, not the public interest or plaintiffs’ interests. Left unchecked, self-interest can takeover. And there are no checks. Consequently, there is an urgent need to improve the mass-tort system and its inhabitants as a whole.
Of course, in writing the book, I knew there would be backlash, particularly from those ensconced within the system who have much to lose from any change in the status quo. And judging from the latest review of my book on Amazon, it appears I’ve struck a nerve.
It comes from Ellen Relkin, a plaintiffs’ lawyer who served as co-lead counsel in DePuy ASR; lead and liaison counsel in Stryker; and on the court-appointed executive committee in Ortho Evra, Yasmin/Yaz, and Biomet.
To begin, I’d like to thank Ms. Relkin for taking time to review the book. I hope very much that it will lead to a dialog and a broader exchange of information, not just between the two of us, but between academics and practitioners more broadly. As my mentor, Richard Nagareda, impressed upon me, ours is a field that is driven deeply by what judges and lawyers do in real time, on the ground, not by what academics say to one another in lofty towers.
It was with that in mind that I began writing what eventually became Mass Tort Deals, which Relkin colorfully dubs a “book parading as empirical research.” It is the culmination of six-years worth of data collection on all the products-liability proceedings pending on the MDL docket as of May 2013, and its Appendix boils down all of that data into 41 pages of tables. All of the documents that I collected are freely available to the public and word searchable here. Whether you love, hate, or are completely indifferent to the book, you are welcome to make use of all of the data and documents without having to pay Pacer fees.
What to make of the data is, of course, open to various interpretations. Mass Tort Deals reflects my conscious choices both about how to present data in an inviting, accessible way, and which case studies and anecdotes might best convey key points. Those choices are based not only on the raw numbers (which are all disclosed), but on many hours of interviews with attorneys and judges as well as reading hundreds of motions, arguments, and court transcripts. Lawyers and judges who lived those proceedings will, invariably, have different opinions about their strengths and weaknesses, as Relkin’s critique demonstrates.
That brings me to Relkin’s specific comments, which I respond to briefly below:
- “The book is biased.”
Unfortunately, I’m not sure what this means. I don’t represent any clients, I don’t consult for lawyers on either side, and my funding comes entirely from my university (no private grants, etc.). I do have a perspective and an opinion from doing extensive research, but I am about as neutral as they come. As Relkin notes, on the other hand, she served as lead counsel in some of the mass tort deals that I criticize and, one presumes, has profited substantially from them.
- “[T]he book criticizes and makes incorrect assumptions without ever interviewing the lead counsel . . .”
As noted, I did speak with a number of plaintiffs’ attorneys on background (including those in DePuy ASR). Those lawyers asked not to be named for fear of retribution, which I describe in Chapter 3. Lance Cooper was the sole attorney who agreed to be interviewed “on the record.” Unlike the lawyers affected by, but not in control of the proceeding, lead lawyers’ positions tend to be apparent from reading the motions that they file and the arguments they make in a hearing’s transcripts.
Despite putting these proceedings under a microscope, however, some critical information just isn’t publicly available, as I note in the book’s Introduction. The terms of most private settlements remain private, and even for those that are publicly available, it is rare indeed to find information on substantive outcomes—who gets what, in other words.
More frustrating still are the many sealed documents. (Reuters has echoed this same frustration in a series of articles on opioids and Propecia.) DePuy ASR was a particularly opaque proceeding in that regard. The leaders, for example, sealed their common-benefit fee and cost awards (motions, orders, etc.). Why insist on secrecy in court-awarded attorneys’ fees?
This is one of the key concerns that I address in Mass Tort Deals: too little disclosure can lead to too much room for abuse of process. The information that is available suggests that there is a systemic lack of checks and balances in MDLs that may benefit insiders like lead plaintiffs’ attorneys, at their clients’ expense. In short, proceedings should be more transparent—deciding issues in secret breeds mistrust.
To that end, if you have data on substantive outcomes (who, exactly, gets what), please share it with me. I would love to know more about how much money is paid out and to whom, how long it takes to administer claims, whether like plaintiffs are treated equally, how much money it costs to put dollars in class members’ hands versus plaintiffs in private settlements, etc.
- “The book overlooks litigation challenges in some of the cases including the enormous costs of trying complex pharmaceutical and medical device cases, especially those with mild to moderate injuries, general and specific medical causation challenges, preemption issues, learned intermediary challenges, among other difficulties in some cases.”
Relkin is correct in that this book is about the procedures used to resolve cases, not substantive tort law. But to the heart of her concern, I discuss costs on pages 24-25, general and specific causation on pp. 112, 116, and 210. And I emphasize the pros and cons of bellwether trials on pp. 107-110.
- “Ms. Burch incorrectly attributes lead counsel in the DePuy ASR settlement, incorrectly interprets and describes features of the settlement, overlooks an enormous and virtually unprecedented benefits of the settlement . . ., incorrectly claims that the Extraordinary Injury Fund awards were unknown when in fact the scheduled award amounts were listed in an appendix to the settlement agreements that have been and are still on-line, among other errors.”
The only concrete thing I can find to respond to here is Relkin’s claim about the Extraordinary Injury Fund. As I observed on p. 140, the DePuy ASR settlements did estimate a claimant’s base award, but even after another search of the settlement’s website, I still don’t see any amounts actually paid out to clients listed anywhere. Of course, it’s certainly possible that I’ve missed something. So, here’s a link to the website if you’d like to dig in.
- “The two unhappy clients she quotes from a New York Times article are certainly not a representative sample. Using that standard, one could go on ‘Rate My Professor’, and while finding many good reviews of Professor Burch, would find some students who gave her unfavorable ratings.”
Okay, I couldn’t resist. It appears the last posting I received on “Rate My Professors” was in 2011 and of the 8 total posts, I received 7 “Awesome’s” and 1 “Good” (which still wrote “Great prof”). (Personally, I’m partial to the one that said “Amazing teacher. Funny, pretty, witty, and just downright brilliant,” but hey, maybe I am biased.)
More to the point, writing the book did make me realize that I needed to hear directly from plaintiffs, hence the Procedural Justice Study that I began over a year ago.
Relkin kindly mentions that “she would have been happy to share the many thank you notes from enormously grateful clients who fared very well,” so I hope that she and other plaintiffs’ lawyers will ask their Yasmin/Yaz and Ortho Evra clients to participate in the Procedural Justice Study as well as any clients they might have in the other covered women’s health proceedings: Pelvic Mesh, Talcum Powder, Mentor ObTape, Mirena, Norplant, Fen-Phen, Dalkon Shield, NuvaRing, Silicone Gel Breast Implants, Power Morcellator, Ephedra, Fosamax, Monat Hair Care, Rio Hair Naturalizer, Prempro, and Protegen Sling.
Please disseminate the survey link broadly to your clients; I absolutely want to hear from all of them. By way of background, the study does not ask for any confidential information (settlement or otherwise); the basic info it seeks include things that plaintiffs can readily find in their complaint. The study’s focus is on how plaintiffs feel about their experience with the justice system—the judges, the lawyers, etc.
My aim in this is to update and expand upon RAND’s 1989 Perception of Justice survey by identifying what litigants care about in the MDL context. I hope to hear from as many plaintiffs as possible (their names and any identifying information will be kept completely confidential).
Happy to hear from each of you, too. And if there are things I should know more about, consider this an open invitation to contact me.
Thursday, September 26, 2019
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):
September 26, 2019 in Aggregate Litigation Procedures, Asbestos, Books, Class Actions, Current Affairs, Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship, Medical Devices - Misc., Pharmaceuticals - Misc., Procedure, Products Liability, Settlement, Trial, Vioxx | Permalink | Comments (0)
Wednesday, August 21, 2019
Douglas Smith (Kirkland & Ellis LLP) has posted to SSRN his article, A Shift in the Preemption Landscape?, Tenn. L. Rev. (forthcoming). Here is the abstract:
This article discusses the Supreme Court's recent decision in Merck, Sharp & Dohme v. Albrecht and its effect on the law of preemption. The Supreme Court held that judges, not juries, should decide preemption questions. It also issued a series of non-binding statements regarding the standards for preemption. This article discusses the Supreme Court decision and its potential effects on future cases.
Tuesday, August 6, 2019
Judge Dan Polster entertained a motion to certify a Rule 23(b)(3) negotiation class today in the federal Opiate MDL. Here are a few of my thoughts after listening in.
1. I find myself reluctantly agreeing with the distributor defendants (who objected based on predominance) on the following point: you can’t look to the fact that this might be fair to satisfy predominance under Amchem. This is Richard Nagareda’s point about bootstrapping. And Sonya Winner, who argued on behalf of objecting defendants, raises fair questions about conflicts of interest and notice (e.g., that it may be misleading as to what counties and cities will receive under the allocation formula).
- Judge Polster’s repeated question of what alternative do we have is not an answer to the Amchem question.
- Whether the kind of proposal that Francis McGovern and Bill Rubenstein put forward in their article would improve Rule 23 as a general matter (or a rules amendment) is a separate question. I have qualms about it being implemented on an ad hoc basis in the context of judicial common law, but this is a question that merits more thought.
2. The interplay between the state attorneys general and their local governments is a critical component to all of this. Would local government settlements count as an offset in state AG suits? For an interesting take on this general issue, see Roderick Hills, Jr.’s 1998 article.
3. Judge Polster said that defendants have a “justifiable insistence” on global peace. Why? Is that a fair assumption? When we think we know something, we stop paying attention to it and stop questioning it. But moving from what “is” to what “ought to be” can be a fruitful inquiry. We need an argument as to why and whether global resolution is the correct starting point and for that we need far more evidence.
4. Prediction: Judge Polster will certify the negotiation class, perhaps after tweaking it to help alleviate some of the state AGs concerns. He was its most ardent advocate.
5. If (or when) Judge Polster certifies a negotiation class, he shouldn’t appoint Chris Seeger as co-lead class counsel. One need only follow what is happening now in the NFL Concussion case or read about the Propulsid deal to understand my fears – See Mass Tort Deals Chapters 2 and 5.
- As an aside, Seeger’s review of my book (which incidentally, I didn’t see until going to pull up a link for this post) is hilarious. But hey, thanks for buying it!
Wednesday, July 3, 2019
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.
Hardeman v. Monsanto, Northern District of California, compensatory: $5 million, punitive: $75 million.
Wednesday, June 12, 2019
Last week, I sat down with Nicolas Terry, who hosts the podcast, The Week in Health Law. We discussed the role of repeat players in multidistrict litigation leadership (on both sides), the functions and control of MDL judges, the ongoing opioid litigation, and my new book--Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.
If you like podcasts and civil procedure, it might be just the thing for a morning commute. Just click on the icon below.
If you're interested in the opioid suits and online reading is more your style, then you might prefer the conversation that Jenn Olivia and I had, which is written up on Harvard Law's Bill of Health (click on the icon below). While you're on the blog, you'll find lots of useful information if you search by category: Opioid Crisis.