Mass Tort Litigation Blog

Dooley on National Juries

Laura Dooley (Valparaiso) has posted an article entitled National Juries for National Cases: Preserving Citizen Participation in Large Scale Litigation.  Here is the abstract:

Procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralization of cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for calls to eliminate jury trial in complex cases altogether. Yet the jury is at the heart of a uniquely American understanding of civil justice, and the Seventh Amendment still mandates its use in federal cases. This article makes a bold new proposal designed to preserve the constitutional and functional value of citizen participation in the civil justice system by aligning the jury assembly mechanism with the scope of the litigation. Thus, in cases of national scope, juries should be assembled from a national pool. This idea would eliminate incentives to forum-shop into local jury pools, and would make the decisionmaking body commensurate with the polity that will feel the effects of its decisions. We might also expect a higher level of legitimacy for decisions rendered by a national jury in national cases because they would not be subject to the criticism that a local jury is imposing its values on the rest of the country, and because geographical diversification of the jury would enhance the quality of decisionmaking.

ADL

Claim Ipsa Loquitur

Plausibility pleading is a rough procedural analogue to the tort doctrine of res ipsa loquitur.

Res ipsa translates from the Latin into "the thing speaks for itself."  The idea is that there are some types of accidents that could not occur absent the defendant's negligence.  In those cases, courts can infer defendant's negligence from the fact that the accident occurred.  Some courts and commentators interpret this as a rebuttable presumption, others as a permissible inference that the jury can draw. You may remember the case of Byrne v. Boadle, involving a barrel of flour that fell from a high window hitting the plaintiff on the head.

How is plausibility pleading like res ipsa loquitur? Plausibility pleading provides a presumption in favor of cases that present familiar scenarios, whereas in complaints presenting unfamiliar or disfavored claims, more proof is required of the plaintiff to survive a motion to dismiss. Consider the case presented in Form 11 of the FRCP.  The facts of the complaint are "On [date] and [place] defendant negligently drove a motor vehicle against plaintiff."  One might say that this Form would not pass muster under Twombly and Iqbal because it is "conclusory."  This complaint provides no facts as to how the defendant drove that might constitute negligence: Did the defendant drive over a curb? Did she run a red light?  The counterargument is that because car accidents are often caused by negligence, the plaintiff is given a presumption that she will be able to show negligence after discovery without having to prove the fact at the complaint stage.  (Note that I am not saying that the tort doctrine of res ipsa would actually apply in such a case; it would not.  The point is simply that the plaintiff's case can move forward on the basis of the presumption). Similarly, in Erickson v. Pardus, perhaps the Court thought that prisoner mistreatment is sufficiently common and familiar that a presumption in favor of the plaintiff's allegations is appropriate. 

On the other hand, where complaints allege conspiracy (either antitrust conspiracy as in Twombly or conspiracy to violate civil rights as in Iqbal), no presumption that the allegation is true is appropriate.  The problem is not that the allegation is "conclusory" -- the term the court uses -- but rather than the allegation is not deserving of a presumption that it is true and therefore plaintiff must marshal more facts to prove her claim.  This analysis works equally well if you prefer to say that certain kinds of cases give rise to a permissible inference whereas others do not.  (For an analysis along these lines see Robert Bone, Twombly, Pleading Rules and the Regulation of Court Access).

What does this analogy get us?  Two suggestions.  First, this points out that the real issue in these cases is one of proof - a problem not traditionally at issue in our jurisprudence on motions to dismiss.  An issue of fact (was there a conspiracy?) is converted into an issue of law (is it plausible to say there was a conspiracy?).  Second, the plausibility standard permits a great deal of subjectivity on the part of the deciding judge.  What claims seem to speak for themselves depends on the judge's experience and/or preconceptions regarding what claims are legitimate (i.e. comport with the judge's "common sense"). 

ADL

Litigation Financing

The NYTimes' Jonathan Glater has a great article on financial firms that invest in large-scale litigation (mostly large companies suing one another) called "Investing in Lawsuits - For a Share of the Awards.   The link is here.  They claim their returns are in excess of 20% per year.  They avoid jury cases or cases raising new issues of law, because "juries are a coin toss."  The example in the article is a contract/fraud cases.  The article quotes Anthony Sebok (Cardozo) as saying “Having funding available for cases that are good cases, cases that from a God’s-eye point of view, so to speak, should’ve been brought, is a good thing." 

ADL

The Drug and Device Guys on Prefiling Discovery

Here's what they write, with a link too...

We're not opposed to precomplaint discovery in principle. It exists, for example, in Pennsylvania, which is a fact pleading state. If there's something specific that's critical, precomplaint discovery works OK. But we've also received precomplaint requests that look like somebody just changed a couple of words in the title and filed their usual discovery. We consider that abusive.

We're certainly not going to agree to a fishing expedition for unspecified "FDA violations" either before or after a complaint is filed - but if there's something specific, say an FDA 483 letter, precomplaint discovery to determine whether the particular drug/device that plaintiff used was within the scope of the FDA's complaint would be something we'd be open to considering (sorry, we can't be more definitive in a public forum).

Almost all drug product liability cases, and the majority of device cases, are failure to warn cases. The warning is public information, the alleged risk is public information, and the injury should be known to the plaintiff. Nothing more is needed to plead plausible facts that would support a claim under Twombly, and I don't think you'll find any Twombly cases stating otherwise. It's the multi-defendant and violation claims that draw these objections. As we said, that's where we see old fashioned post-complaint discovery and amendment to complaints as appropriate.

ADL

Transnational Mass Torts: Lawyer Opposes Nigerian Settlement with Pfizer

The AP story is here.  The American Constitution Society reports the following on the case:

West Haven lawyer Richard Altschuler has gone to federal court to block a $75 million Nigerian court settlement between Pfizer and the Nigerian government involving a controversial drug study the pharmaceutical company conducted on Nigerian children during a 1996 meningitis outbreak. During the course of the study, 11 children died and others were paralyzed and blinded. Altschuler, who represents 58 alleged victims in a multi-billion dollar case in U.S. court, argues that the settlement proposed in Nigerian court interferes with his case and would give millions to the Nigerian government while providing relatively little for the victims.  

ADL

Brunet on the Origins of Plausibility as a Pleadings Standard

A lot of people have been writing about the new pleading standards lately.  One very intriguing observation was offered by Prof. Edward Brunet (Lewis & Clark Law School).  Brunet is the author of a treatise on summary judgment and links summary judgment and the new pleadings standards.  The concept of "plausibility," he writes, is imported from substantive law of antitrust, now morphed into pleadings doctrine.  His full analysis is below.  

            I think the origin of a plausible assessment of the nonmovant's case was based in substantive antitrust law. In Matsushita(1986 trilogy) the p word is used 10 times.  However, the context of usage of the word is substantive antitrust law and not Rule 12(remember this was a summary judgment case).  What Matsushita meant is that antitrust is hostile to predation cases, particularly those in which  the plaintiff cannot demonstrate proof  of  recoupment  of  the defendant's costs expended in phase one of a predation case ( the price cutting phase).  The plaintiffs' case was implausible because it was incredible that a monopolist would lose money on its U.S. sales for a lengthy 25 year phase one.

The Matsushita majority also made a substantive point when asserting that "antitrust law limits the range of permissible inferences from ambiguous evidence in a section one case.”  In other words, the term plausible was not intended to be a procedural yardstick in all cases but, instead, had a substantive antitrust meaning.  This reading  was bolstered by Matsushita's citation and quotation from Monsanto (1984) (another antitrust case and one not involving pleading) requiring the antitrust plaintiff who seeks to avoid summary judgment to have proof that "tends to exclude the possibility" of independent conduct.

As early as 1969 in the Cities Service case, the Supreme Court used the p word (plausible) when describing a plaintiff's antitrust theory and its ability to overcome a Rule 56 motion.  So, up to the plate goes Justice Souter who reinterprets "plausible" in a procedural way in Twombly. And Justice Kennedy ignores the substantive antitrust meaning of "plausible" in Iqbal.  My theory is based upon a willingness to have cause of action specific norms and flies in the face of a purely trans-substantive set of motion rules. 

ADL

Products Liability and the New Pleading Era

The folks over at Drug and Device Law Blog have a post about plausibility pleading as applied to products liability cases.  Here is the link.

ADL

Continuing Debate over "Opt-Out" Collective Redress in England and Wales

The United States isn't the only country experiencing civil reforms (i.e., Iqbal and Twombly).  England and Wales are reevaluating their rules of civil procedure and the debate over class actions or "collective redress" has been brewing for some time.  On May 8, 2009, Lord Justice Jackson released his preliminary report, which reviews civil litigation costs.  The report follows two reports issued by the Civil Justice Council that recommended adopting an opt-out system of collective redress, introducing American style contingency fees, and doing away with the loser-pays English system.  Lord Justice Jackson's preliminary report similarly suggests that abolishing the cost-shifting loser-pays system "merits serious consideration."  Moreover, he raises the idea of one-way cost shifting to collective actions where claimants would be awarded their costs upon winning, but wouldn't bear the risk of taking on the defendant's attorneys' fees and costs if they lost.

As for collective redress, Jackson broaches the subject but ultimately refrains from recommending either the current opt-in procedure or a more encompassing opt-out procedure.  He does, however, note that the current opt-in model discourages these type of enforcement actions.  He invites written comments on the report and requests that they be sent by July 31.  The submission information can be found here.  Lovells LLP has written a brief and helpful overview of the report, which is available here.

ECB

New Blog with Occasional Mass Tort Posts

George Conk - an adjunct professor of law at Fordham and a practicing lawyer - has a blog and occasionally posts on interesting issues related to mass torts.  He has a post on the Vioxx trials in Australia here and a post on the proposed legislation to overrule Reigel v. Medtronic here.  

ADL

The Plausible Pleading Standard

Civil Procedure buffs have been reacting to the Supreme Court decision Ashcroft v. Iqbal, which affirmed that "plausibility" pleading applies to all cases in Federal Court under Rule 8.  Here is a useful post by Scott Dodson on the Civil Procedure Prof Blog.  Howard Wasserman has also reacted to the decision on Prawfsblog with some useful insights, see here. Constitutional law scholar Michael Dorf has a commentary at Findlaw. 

Many are saying that this decision will not affect "run of the mill" contracts and torts cases that judges are used to, meaning that most mass tort cases won't be affected.  I wonder if this is true, or if plaintiffs will need to show more proof for these cases as well when they file.  Any causes of action with an intent element and/or conspiracy causes of action, it seems to me are going to be affected.  It strikes me that this decision imports the summary judgment concept into pleadings.  Negligence cases might pass muster under a kind of "res ipsa" theory, whereas intent cases will require more.  More thoughts on this later.

There will be a lot more writing and thinking on this before it stabilizes, probably many years from now.  In the meantime, the costs of litigation have gotten even higher.  ADL

Merck's New Journal

Concurring Opinions has an interesting post titled "Mercketing," which describes how Merck and Elsevier created their own "journal" in Australia.  Yet, perhaps to make it look, er, less "slanted" the journal is called the Australasian Journal of Bone and Joint Medicine and is "made to look like [a] medical journal[]."  The post and Sergio Sismondo's article "Ghosts in the Machine" is worth a read.

ECB

Plaintiffs' Teflon Class Actions Against Dupont Don't Stick

As Allison Frankel reports at AmLaw Litigation Daily, plaintiffs in the Teflon MDL proceedings have filed a joint motion to drop their consumer-fraud class-action cases.  Dupont understandably has high praise for its outside counsel, Bartlit Beck.  Dupont's General Counsel Thomas Sager noted, "It was like this firm just dropped from heaven."

BGS

WLF's Richard Samp Discusses New D.C. Cir. Decision on Independent Contractors

The Washington Legal Foundation's Richard Samp has an interesting, short paper discussing a recent D.C. Circuit Court of Appeals decision rejecting the right-to-control test to distinguish independent contractors from employees, and instead substituting an extent-of-entrepreneurial-opportunity test.  A company generally is not faced with vicarious liability for independent contractors, but generally has vicarious liability for its employees.

BGS

Skadden Successfully Recruits John Beisner, Stephen Harburg, and Jessica Davidson Miller of O'Melveny

According to this press release from Skadden, John Beisner, Stephen Harburg , and Jessica Davidson Miller will leave O'Melveny and join Skadden's Washington, D.C. office.  John Beisner, chair of O' Melveny's Class Actions, Mass Torts, and Aggregated Litigation Practice, represented Merck in the Vioxx litigation and is a preeminent defense mass tort practitioner.  Most remarkable is the prospect in one firm of both John Beisner and Sheila Birnbaum, founder of Skadden's mass torts department and herself frequently named as the leading defense products liability lawyer.  As someone who worked in New York at Skadden's mass torts department myself while in practice, I would also mention Skadden's depth of talent, including partners Raoul Kennedy, Jeffrey Lichtman, Russell Jackson, Mark Cheffo, and Steven Napolitano.  Quite a group indeed.

BGS

Merck's International Litigation Strategy

An article in the New York Times entitled "Trial Puts Spotlight on Merck" describes Merck's continuing litigation internationally, with a focus on a Vioxx trial currently under way in Australia.  This trial is receiving substantial media coverage in Australia, according to the Times, most of it negative publicity for Merck.  Why continue this litigation strategy even after settling in the US for nearly $5 billion?  The Times reports:

The point of trying the case is to stand behind the company’s conviction that it acted responsibly in developing, marketing, and ultimately withdrawing Vioxx, Bruce N. Kuhlik, Merck’s general counsel, said in an interview this week.

The article notes that plaintiffs lawyers from other countries (Canada in particular) are watching the trial and obtaining information they otherwise lacked.

ADL