Mass Tort Litigation Blog

Second Circuit Reinstates Bhopal Disaster Case Based on Water Pollution

Article on Reuters -- U.S. court reinstates Bhopal water pollution case, by Martha Graybow.  Here's an excerpt:

A lawsuit contending that thousands of people in India were exposed to polluted drinking water after the 1984 Union Carbide toxic-gas disaster in Bhopal was reinstated on Monday by a U.S. appeals court, which said a lower court improperly threw out the case.

The U.S. Court of Appeals for the Second Circuit in New York sent the lawsuit back to a Manhattan federal court judge for further proceedings.

A three-judge panel of the appeals court found that the lower court had erred by granting the defendants' request for summary judgment in the case before giving the plaintiffs the opportunity to gain access to certain pretrial documents and other information they had sought.

***

The lawsuit was brought on behalf of people who lived or worked near the Bhopal plant who say they suffered ailments including cancer and neurological damage caused by contaminated groundwater. The legal claims were first brought in 1999 after a study by environmental group Greenpeace found widespread water contamination in the area, said Richard Lewis, one of the lawyers for the plaintiffs.

BGS

News from Wyeth v. Levine's Oral Argument

Legal commentators have already begun speculating about the upcoming Supreme Court decision in Wyeth v. Levine.  After yesterday's oral argument, Tony Mauro of the Legal Times reports that "the case could be decided narrowly, giving little guidance about a broader pre-emption issues beyond the area of drug labeling."  Here's an excerpt:

Appearing for Wyeth, former Solicitor General Seth Waxman told the justices that the FDA took into account the possibility of gangrene as a result of that kind of injection, but balanced it with the benefits of the drug. That produced a sharp response from Justice Samuel Alito Jr., who asked, "How could the FDA conclude that IV-push was safe and effective" when the benefit was relief of nausea while the risk was gangrene?

Justice Ruth Bader Ginsburg also asked incredulously, "No matter what benefit there was, how could the benefit outweigh that substantial risk?"

Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr, answered that the label provided "ample, lavish warning" about the IV method, but the FDA determined that the method could be medically warranted in some circumstances -- the kind of considered judgment that a jury, looking at a single case, would not make. Justice David Souter also took Wyeth to task for not, on its own, going back to the FDA to urge changes in the label to prohibit IV-push administration: "Wyeth could have done that at any time, and it simply didn't do it."

Waxman pointed out that Wyeth in fact did ask for stronger language, but the FDA rejected it.

David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, representing Levine, picked up on Souter's point and said the law would have allowed Wyeth to make a unilateral change in its label. The FDA, he said, never weighed the comparative risks of different types of IV administration of Phenergan.

"The idea that a label is set in stone for all time misunderstands the way the process works," argued Frederick. "No reasonable person could have made this balance."

"If you're telling me the FDA acted irresponsibly, then sue the FDA," said Justice Antonin Scalia. Scalia and several other justices seemed to have been persuaded that Wyeth had acted responsibly in informing the FDA about the risks and should not be punished for doing what the agency ordered it to do.

"You're saying FDA approval doesn't give you any protection at all?" asked Scalia. Frederick responded that it gives a company "a basis for marketing" a product but does not end the company's duty to reveal problems that arise with that product.

Here's a link to the Wall Street Journal Law Blog on Wyeth.   

ECB

Wyeth v. Levine Argument Was Heard Monday

Oral argument in the big preemption case of the Supreme Court Term, Wyeth v. Levine (06-1249) is scheduled for Monday, Nov. 3, 2008.  The case concerns whether federal law preempts state torts claims imposing liability on drug labeling that the FDA had previously approved.

Edited to add: the transcript is available on the Supreme Court website here. 

 

Documents related to the case are available on Scotusblog.  The Scotusblog coverage is very good.  Readers might also be interested in the anti preemption point of view, which can be found (among other places) in the linked ACS publication by Law Professor David Vladeck.  The pro-preemption point of view can be found at Drug and Device Law blog and the links therein. 

ADL

Libya Pays $1.5 Billion for Compensation of Victims of Pan Am 103 Terror Attack

Article on cnn.com -- Libya pays $1.5 billion to settle terrorism claims.  Here's an excerpt:

The United States has received $1.5 billion from Libya as payment for victims of terrorist attacks, Secretary of State Condoleezza Rice told Congress on Friday.

"These funds are sufficient to provide the required compensation to victims of terrorism under the Libyan Claims Resolution Act," the State Department said in a statement.

"The administration will now move expeditiously to arrange for distribution of these funds in lieu of the pending U.S. court cases against Libya."

Washington had promised to normalize relations with Libya to reward it for abandoning its weapons of mass destruction program and for taking responsibility for the downing of Pan Am 103 and other terror attacks against Americans.

BGS

Mass Torts In China

For our readers interested in the recent spate of mass torts in China: When Calamity Strikes, Who Should Pay? 

Fred Baron, 1947-2008

Fred Baron, one of the nation's leading mass tort plaintiffs' lawyers, died yesterday in Dallas.  Founder of the law firm Baron & Budd, he played major roles in asbestos, MTBE, TCE, lead, and pesticide lawsuits, and was lead counsel for the objectors in the Amchem v. Windsor asbestos settlement class action case.  Here is the obituary from the Dallas Morning News and  today's entry in the WSJ Law Blog.

HME

Issacharoff on How Last Term's SCOTUS Cases Fit Together

Samuel Issacharoff (NYU) has posted an article entitled Private Claims, Aggregate Rights on SSRN.  The article does a great job of tying the three procedural cases from last term with larger complex litigation issues. And, like all of Issacharoff's work, is extraordinarily well written. The abstract is below:

In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.

Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.

ADL

Drug and Medical Device Litigation Conference

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

HME

Asbestos Litigation Conference in San Antonio

ALI-ABA is running a conference ominously entitled "Asbestos Litigation: Where Is It Going? When Will It End?" in San Antonio, Texas, on Dec. 4-5, 2008, with presentations by prominent lawyers and law professors including John Aldock, Patrick Hanlon, Deborah Hensler, Stephen Kazan, Mark Lanier, Ellen Pryor, Joe Rice, and Perry Weitz.

HME

Secret Settlements in Mass Tort Cases

James M. Anderson (RAND) has posted an article entitled "Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy" on SSRN.  The abstract is below.

Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.

ADL

U.S. Supreme Court to Hear Pharmaceutical Preemption Case

Article in the Wall Street Journal -- In Drug Case, Justices to Weigh Right to Sue, by Alicia Mundy and Shirley S. Wang.  Here's an excerpt:

For nearly a century, Americans have been able to sue drug companies for deaths or injuries caused by medicines. Now the pharmaceutical industry and other big businesses are hoping the Supreme Court will sharply curb that right.

In a case called Wyeth v. Levine, which the court will hear next week, a Vermont guitarist named Diana Levine lost an arm to gangrene caused by an improperly administered nausea drug. A Vermont jury awarded her $6.7 million in damages from Wyeth, accepting her argument that the drug maker should have put stronger warnings on the label.

In its appeal of the verdict, the drug maker says the drug's label was approved by the Food and Drug Administration, and it argues the federal regulator's judgment should trump state law on issues of product safety. Many lawsuits are based on state consumer-safety regulations that often are stronger than federal standards.

BGS

Lawyers Involved in Kentucky Fen-Phen Settlement Disbarred

Brett Barrouquere of the Associated Press reports that the Kentucky Supreme Court disbarred William Gallion and Shirley Cunningham, Jr. from practice after mishandling money in the Fen-Phen settlement.  The full story can be found here.

ECB

Obesity Pill Pulled in Europe

Trista Kelley from Bloomberg.com reports this morning that European regulators have pulled Sanofi-Aventis, SA's obesity pill, Acomplia, citing concerns about its side effects. The FDA refused to approve the drug for sale in the U.S. because of these side effects, which include suicide and psychiatric problems. Apparently Sanofi plans to reapply for FDA approval in 2009. The full story can be found here.

ECB

Arthur Miller to Join Milberg as Special Counsel

The Wall Street Journal Law Blog has a post today that provides an update on the prosecutions of David Bershad and Steven Schulman. Milberg also announced yesterday that Arthur Miller would be joining the firm as special council. Here's an excerpt:

On Monday, former name partners David Bershad and Steven Schulman, the remaining key defendants in the case, are due to be sentenced.

Bershad pleaded guilty last year to a felony and faces up to 33 months in prison. But citing his cooperation, prosecutors Monday recommended that he serve three months in prison, followed by three months of community confinement.

Bershad, who has asked to serve no prison time, wrote this mea culpa to the judge. “I alone am to blame for those who have turned away from me,” he said, noting that his 30-year marriage was at an end and that his four children had suffered “from having to confront the hypocrisy of a father who acted contrary to the values he taught them.”

And here's a link to Milberg's announcement about Arthur Miller. Milberg, LLP is currently involved in several mass torts, including litigtion over Avandia and Zelnorm.

ECB

Andrew Morriss on Altria Group v. Good

Professor Andrew Morriss (U. Illinois; picture left) comments in a Federalist Society SCOTUScast on Altria Group v. Good, a preemption case that was recently argued in front of the United States Supreme Court.

BGS