Mass Tort Litigation Blog

Tainted Milk Suits Given the Go-Ahead in China

Apparently no legal system can escape the mass tort juggernaut -- for good or ill.  The Highest Court in China has recently given the green light to suits arising out of the distribution of tainted milk.  See the article on the Associated Press here.  One interesting aspect is the numbers of families who have refused government compensatio because it is too small, electing instead to sue. 

ADL

Wyeth v. Levine in the Blogosphere

Scotusblog's summary is linked here. The folks at Drug and Device Law have posted their reactions.  For a counterpoint, you might want to check out Public Citizen's statement on the opinion. 

ADL

Wyeth v. Levine -- Supreme Court Finds No Preemption

I'm sure we'll have more posts about this on the blog, but here's today's opinion, hot off the presses: Download Wyeth_v_Levine_US_Sup_Ct.pdf

BGS

Supreme Court Decides Wyeth v. Levine

I haven't had a chance to read the opinion yet, but wanted to broadcast the news as soon as possible.  The Supreme Court has decided Wyeth v. Levine and in a 6-3 opinion, rejected Wyeth's preemption claim.  The Associated Press report is available here through the New York Times.

ECB

Libby, Montana Asbestos Criminal Trial Begins

Article on cnn.com -- Decades later, asbestos-ravaged town has its day in court, by Josh Levs.  Here's an excerpt:

For much of the last century, people in the small town of Libby, Montana, were surrounded by toxic asbestos. It covered patches of grass, dusted the tops of cars and drifted through the air in a hazy smoke that became a part of their daily lives.

Now, after decades of suffering and watching loved ones die, area residents are getting their day in court.

Federal prosecutors have begun a trial of the mining company they blame for the pollution, which doctors say left more than 1,000 people ill and more than 200 dead.

BGS

ABA Section of Litigation Annual Conference

The ABA's Section of Litigation will have its Annual Conference on April 29 to May 1, 2009 at the Atlanta Marriott Marquis in Atlanta, Georgia.  Program topics include Causation and Injury in Toxic Torts -- An Examination of Modern Causation Principles in Toxic Tort Litigation; Enemy of the State -- The Challanges of Civil Litigation with States and Municipalities; and Preemption in Product Liability Litigation.

BGS

Symposium on "Against Settlement"

The Fordham Law Review presents a one-day symposium, "Against Settlement: Twenty-Five Years Later," looking back at Owen Fiss's classic argument in favor of adjudication -- Against Settlement, 93 Yale L.J. 1073 (1984) -- from the perspective of 2009.  For those of us who believe that mass tort litigation can and often should be resolved by settlement rather than adjudication, the Fiss argument presents a serious challenge.  If mass tort settlements create a form of governance, should we be concerned that the governance is delivered by negotiating parties and their lawyers rather than by a public official?

The symposium speakers include many notables from the fields of ADR, complex litigation, and public interest litigation:  John Bronsteen, Amy Cohen, Kenneth Feinberg, Owen Fiss, Samuel Issacharoff, Pamela Karlan, Michael Moffitt, Jackie Nolan-Haley, Susan Sturm, and the Hon. Jack Weinstein.  The symposium, which is free and open to the public, will take place on Friday, April 3, 2009 at Fordham Law School in New York City.  I'm looking forward to it.

HME

Eric Lasker on Wyeth v. Levine Oral Argument

Eric Lasker (Spriggs & Hollingsworth) has published Oral Argument in Wyeth v. Levine Marks Change in Drug Litigation Preemption Debate in the February 2009 issue of Engage.

BGS

Flight 3407 Lawsuits and the Ethics of Client Solicitation

Litigation over Continental Flight 3407, which crashed near Buffalo last week, is inevitable.  But for lawyers interested in representing the plaintiffs, New York's new ethics rules on lawyer advertising and solicitation impose a significant constraint.  Over at the NY Personal Injury Law Blog, Eric Turkewitz (here and here) has been watching how law firms have tried to market themselves in the wake of the crash.  Interesting.  (Hat tip:  Overlawyered)

HME

En Banc Rehearing in Dukes v. Wal-Mart

On Friday, the 9th Circuit granted a rehearing en banc in Dukes v. Wal-Mart, an enormous and long-running Title VII sex discrimination class action.  Plaintiffs filed the case in 2001, contending that Wal-Mart discriminated against women in pay and promotions.  The district court certified the class in 2004 and the Ninth Circuit affirmed in 2007.

OK, it's not a mass tort.  But for anyone interested in mass litigation, the Dukes case represents an important test of the limits of Rule 23(b)(2) class actions in which significant monetary damages are sought along with injunctive relief.  The UCL Practitioner blog offers an explanation of what happens next, procedurally.

HME

$8 Million Verdict in First Post-Engle Florida Tobacco Trial

A Florida jury yesterday awarded $8,000,000 ($3 million compensatory plus $5 million punitive damages) to the family of a smoker who died of lung cancer.  The case, Hess v. Philip Morris, was the first of 8,000 individual cases that may go to trial in Florida in the wake of the Florida Supreme Court's 2006 rejection of a statewide class action in Engle v. Liggett Group.

In the Engle class action, a jury had found the defendant tobacco companies liable for $145 billion in punitive damages.  The Florida Supreme Court (here's that court's decision) found that the class action should not have been certified on punitive damages, but held that certain factual findings on liability would be given issue preclusive effect in subsequent individual trials against the defendants.  I believe Florida remains one of the few states that clings to the traditional requirement of mutuality for issue preclusion, but the Engle decision did not actually condone nonmutual use of the trial findings.  Rather, it concluded that although certain issues were so individualized that they required decertification of the class on remand, the common liability issues were suitable for classwide determination and thus could stand. The Florida Supreme Court put it this way:  "Individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case."  In other words, despite the decertification of the class, the individual class members would be treated as parties entitled to use the favorable findings on liability.

If yesterday's verdict is any indication of how the remaining trials will go, the defendants' appellate "victory" in Engle offers them scant protection from the prospect of multi-billion dollar liability in Florida.  The irony is that after defeating class cert in Engle, the defendants may eventually find themselves wishing to negotiate a settlement class action to resolve the remaining claims.

Here's an excerpt from yesterday's Bloomberg.com report by Jef Feeley and Mort Lucoff:

Altria Group Inc., the biggest U.S. cigarette maker, must pay $8 million to the family of a smoker who died of lung cancer, a Florida jury ruled in the first of 8,000 individual cases to go to trial in the state. A state court jury in Fort Lauderdale ruled today Altria’s Philip Morris USA unit is liable for $3 million in compensatory damages and $5 million in punitive damages over Stuart Hess’s 1997 death. ...

The verdict is the first in thousands of lawsuits filed after the Florida Supreme Court refused to reinstate a $145 billion punitive-damages verdict awarded by a Miami jury to a statewide class of smokers in 2006. Florida’s high court, which ruled the smokers can’t sue as a group, extended the time for individual smokers to sue and allowed them to rely in their individual cases on factual findings by the Miami jury, including that cigarettes are addictive and cause cancer. ...

The 8,000 cases pending in the state are split up among cigarette makers including Altria, Reynolds American Inc. and Vector Group Ltd. The cases are slated to be tried in courthouses across the state in coming months and years.

HME

Wake Forest Symposium on the Third Restatement of Torts

Wake Forest University School of Law is hosting A Symposium on the Third Restatement of Torts on April 2-3, 2009 in Winston-Salem, North Carolina.  The symposium has assembled a remarkable list of speakers.

BGS   

Roderick Hills and Catherine Sharkey on Preemption

The Fall 2008 NYU Law School magazine includes A Presumption Against Preemption, by Professor Roderick Hills (NYU), and A Model for Products Liability Preemption, by Professor Catherine Sharkey (NYU).  (Scroll down the .pdf link to page 60 for the Hills piece, and page 63 for the Sharkey piece.)

BGS

Albany Law School Symposium on Off-Label Prescription of Drugs

Albany Law School is hosting a symposium entitled, Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label, in Albany, New York on Friday, March 27, 2009.  Papers will subsequently be published in the Albany Law Journal of Science and Technology.  I'll be speaking as part of a panel on current topics in off-label drug-use litigation.

BGS

Peanut Company Officials Take 5th Amendment Self-Incrimination Protection Before Congress

Article on cnn.com -- Peanut company officials spurn Congress' questions.  Here's an excerpt:

The president of a peanut company and a plant manager accused of knowingly distributing contaminated food refused to answer questions posed by members of Congress on Wednesday, citing their Fifth Amendment protection against self-incrimination.

The testimony of Stewart Parnell, president of the Peanut Corp. of America, and Sammy Lightsey, manager of the company's Blakely, Georgia, plant, before a House Energy and Commerce subcommittee lasted less than 10 minutes.

Neither man had an opening statement. Asked whether it was their intention to cite constitutional protection in refusing to answer all the questions posed by the committee, both men said it was.

It was the only question they answered; Parnell cited constitutional protection even when asked whether he had heard members of a previous panel testify.

BGS