Mass Tort Litigation Blog

Will Pfizer's Purchase of Wyeth Affect SCOTUS' Preemption Ruling This Term?

According to Richard Arsenault - a plaintiff's-side lawyer specializing in complex litigation, pharma and mass torts - Wyeth has filed a letter alerting the Court to the fact that Pfizer is taking over Wyeth.  See HME's post on the takeover here. What effect could this have on the opinion in Wyeth v. Levine?  If Chief Justice Roberts recuses himself (as he has in the past in cases involving Pfizer) then this will change the dynamic of the decision; Arsenault predicts it may lead to another 4-4 split.  Then again, since arguments were heard before Pfizer was publicly in the picture, the Chief Justice may not recuse himself.  Any predictions?

ADL

The Hartford Files a Declaratory Judgment Action Against Peanut Corp. of America

Illustrating another angle in the complicated relationship between insurance and mass torts, the Hartford has filed a declaratory judgment action against the Peanut Corporation of America, presumably to avoid paying out on claims arising out of the spate of lawsuits we are about to see arising out of salmonella poisoning in peanut butter products.  As Bill Marler points out in his blog, the complaint does not actually tell us what the Hartford's position is with respect to paying out on any salmonella related claims, but it is hard to imagine why an insurance company would take the trouble to file a declaratory judgment action unless it was trying to avoid payment.  For more information, see the Marler Blog .  You can download the suit from there.

The insurance issues in the Asbestos context are well studied -  I imagine we're likely to see more fights with insurance in other mass tort contexts.

ADL

Jonathan Macey and Geoffrey Miller on Judicial Review of Class Action Settlements

Professors Jonathan Macey (Yale) and Geoffrey Miller (NYU) have co-authored Judicial Review of Class Action Settlements, which has been published in the new, on-line, peer-reviewed Journal of Legal Analysis.  Here's the abstract:

This article proposes a simple and coherent approach to judicial review of class action settlements. Specifically, we propose that for questions going to the adequacy of a settlement, where no warning signals of fraud or collusion are found, the court should act relatively deferentially by employing a lenient standard of scrutiny and approving a settlement if it has a rational basis. An intermediate level of scrutiny should apply when the settlement presents facial issues that implicate the fairness of the settlement. Such facial issues include the allocation of settlement proceeds among subgroups in a class, the presence of coupon-type relief, “shotgun” settlements occurring very early in the litigation, and settlements in overlapping class actions. In settlements with one or more of these characteristics, if the initial inquiry raises concerns, the court should demand a well-reasoned explanation for the choices made. Finally, where the components of a settlement present a direct conflict between the interests of class counsel and those of the class issues, such as issues related to attorneys’ fees, courts should employ exacting scrutiny and require convincing evidence that the proposal is reasonable.

BGS

Bruce Mandel and James Kline on Ohio Supreme Court's Greater Deference to Legislative Tort Reform

Bruce Mandel and James Kline (both of Ulmer & Berne) list the areas of greater deference in their Washington Legal Foundation paper, Recent Ohio High Court Rulings Reflect Respect for Legislature's Role in Making Tort Law.

BGS

Judge Grants Summary Judgment Against Two Seroquel Plaintiffs

So reports Andrew Longstreth of American Lawyer.

BGS

Class Actions 101

Nice, short backgrounder on class actions in the ABA Litigation News -- Class Actions 101: What Are These Lawsuits All About, Anyway?, by Julie Cantor (Munger Tolles).

BGS

California Supreme Court Requires Damages as Requirement for Bringing Claim Under Consumer Legal Remedies Act

Jackson on Consumer Class Actions & Mass Torts dissects the case, Meyer v. Sprint Spectrum L.P., 2009 WL 197560 (Cal. Jan. 29, 2009).

BGS

Symeon Symeonides on Choice of Law in Cross-Border Torts

Dean Symeon Symeonides (Willamette; picture, left) has posted an article on SSRN -- Choice of Law in Cross-Border Torts.  (H/t to Civil Procedure Prof Blog.)  Here's the abstract:

This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.

One of the findings of the Article is that, despite using different approaches and invoking varied rationales, courts that have joined the revolution have reached fairly uniform results in resolving cross-border tort conflicts: they have applied the law of the state of either the injurious conduct or the resulting injury, but, in the vast majority of cases (86 percent), they have applied whichever of the two laws favored the tort victim. Another finding is that the vast majority of recent conflicts codifications around the world (a total of 20) have adopted the same solution: they apply whichever law favors the victim, by authorizing either the court or the victim directly to make the choice.

The Article concludes by examining whether the results of the American cases can be compressed into new content-sensitive, result-selective choice-of-law rules which would be free of the vices of the old rules and would be easy for judges to apply. It answers the question in the affirmative and, to prove the point, it offers three options for such rules.

BGS

Pennsylvania Supreme Court Considering Appropriateness of State's Hiring of Contingency Fee Lawyers

...in connection with alleged off-label promotions of Risperdal-manufacturer Janssen Pharmaceuticals, as reported by Drug & Device Law.

BGS

South Carolina Senate Considers Tort Reform Bill

The Charleston Regional Business Journal reports the bill includes limits on punitive and noneconomic damages, class-action reform, and limits bond requirements to appeal extremely large verdicts. (H/t to Torts Prof Blog.)

BGS

Upcoming American Association of Justice Meeting

Point of Law discusses possible litigation developments involving AAJ's Litigation Groups for product liability and class actions.

BGS

Erin Glenn Busby on Wyeth v. Levine

In a Federalist Society SCOTUScast, appellate lawyer Erin Glenn Busby discusses Wyeth v. Levine, the pending Supreme Court case involving whether state tort lawsuits are preempted by FDA approval of prescription-drug labeling.

BGS

American Pipe tolling in mass torts

Interesting post yesterday at the Drug & Device Law Blog arguing that the American Pipe tolling rule does not make sense in the mass tort context, and praising Beisner and Miller for their arguments along the same lines.  In 1974, the Supreme Court held in American Pipe v. Utah that the pendency of a class action tolls the statute of limitations for the claims of the class members.  The idea was that if a class action has been filed, even if not yet certified, we don't want each class member to feel the need to file a timely individual action (or to intervene in the class action) to preserve the claim.  Rather, the individual class members should be allowed to wait and rely on the class action to protect their interests; if the class action is not certified, then the individuals can go ahead and file claims if they so choose.

Defense lawyers, seeking dismissal of potentially time-barred individual claims, have advanced a number of arguments against applying the tolling rule in mass torts:
(1) Class certification in most mass torts is a long shot, unlike some other types of class litigation.
(2) Individual claimants in mass torts rarely rely on class actions as a reason to postpone individual complaints because (a) class cert is a long shot, (b) claimants don't know whether a class action has been filed, (c) even if they know a class action has been filed, claimants with sizeable claims would file individual complaints anyway, and (d) claimants with very small (negative value) claims would not file individual complaints regardless of a class action.
(3) In mass torts, MDL and statewide centralization and consolidation procedures allow courts to handle an influx of individual claims, so a flood of individual complaints presents less of a downside than thought in 1974.

These arguments are neither new nor ready to disappear.  My former colleagues Mitchell Lowenthal and Menachem Feder made similar arguments in a 1996 article, The Impropriety of Class Action Tolling for Mass Tort Statutes of Limitations, 64 Geo. Wash. L. Rev. 532 (1996).  More recently, Judge Fallon in the Vioxx litigation acknowledged these arguments but nonetheless faithfully applied American Pipe in denying several of Merck's motions to dismiss on statute of limitations grounds.

HME

Investigation into FDA's Medical Device Approval

The New York Times reports that several dissident FDA scientists may be under criminal investigation for their role in approving high-risk medical devices. In response, they wrote a letter to President Obama stating, "It is an outrage that our own agency would step up the retaliation to such a level because we have reported [the FDA's] wrongdoing to the United States Congress. Here's an excerpt of the Times piece:

The letter is the latest escalation in a highly unusual internal battle that has been simmering for nearly a year within the agency’s device division. The nine scientists have banded together and charged that agency officials have acted illegally and that patients are routinely put at risk from high-risk medical devices that are approved for sale even though manufacturers have never proved that the products are either safe or effective.

The scientists complained in May to Dr. Andrew C. von Eschenbach, who was then the F.D.A. commissioner, and the agency began an internal review that continues. Dissatisfied with the pace and results of that review, the scientists wrote a letter to Congress in October pleading for an investigation, and the House Committee on Energy and Commerce announced in November that it would begin one, which also continues.

Three weeks ago, the scientists wrote a similar letter to the president-elect’s transition team. And on Monday, the scientists wrote another letter to President Obama.

Confidential agency documents, which include both e-mail messages and medical reviews detailing the internal dispute were provided to The Times.

It can be a crime for agency employees to reveal documents or information considered confidential by companies seeking agency approval for medical products.

Some of the scientists’ claims about the agency’s device approval process were echoed in a report released two weeks ago by the Government Accountability Office that was also critical of the agency’s device center.

ECB

WLF program on MDL for mass torts

The defense-oriented Washington Legal Foundation is sponsoring a live webcast entitled Litigate the Torts, not the Mass:  Improving the Multi-District Litigation Process, featuring John Beisner and Jessica Davidson Miller of O'Melveny & Myers.  The webcast will occur Friday, Jan. 30, 2009, at 10:00 a.m.

HME