Mass Tort Litigation Blog

New civil procedure book

My new book, Inside Civil Procedure: What Matters and Why, has been released by Aspen Publishers.  Written for law students, it tries to explain the concepts of civil procedure in a comprehensible and engaging way.  Readers of this blog won't be surprised that I couldn't resist mentioning MDL, mass settlements, and the difficulty of certifying mass tort class actions.  Mostly, however, the book sticks to the basics.  So if anyone's trying to understand personal jurisdiction or Erie or the ever-changing federal pleading standard ...

HME

A "Good Faith" Standard for Reviewing Class Certification?

Eran Taussig (SJD, UPenn) has posted an article comparing the Israeli and American class action rules, and arguing in favor of the Israeli "good faith" standard. The article is called "Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Doctrine in Class Action Proceedings":

This paper suggests that using the concept of ‘good faith’, as is used in Israeli class action proceedings, could resolve some of the shortcomings in U.S. class action proceedings. There is a vast literature about the abuse of the class action procedure in the United States. Among other problems, scholars lament the extensive filing of meritless class actions in order to extort unwarranted settlements and the so-called “sweetheart settlements”, in which class counsel colludes with the defendant to settle meritorious claims for far less than they are worth, in exchange for fees in excess of those he would have expected had the parties proceeded to trial. Yet, there are no satisfactory solutions to the abuse of this procedure. This paper addresses this gap by describing and evaluating a solution that originates outside the United States. Unlike Rule 23, the recently enacted Israeli Class Actions Law includes a good faith requirement as one of the prerequisites to certification. This requirement is used to scrutinize the motives of the representative plaintiff and the class counsel. Israeli Courts will not certify class actions which have been instituted for collateral or illegitimate purposes such as extortion or harming a competitor. The paper suggests that the application of good faith in the U.S. could resolve some of the more significant flaws in the American class action mechanism. In making this argument, the paper also considers both the larger legal and socio-political contexts–specifically the role that litigation plays in the American and Israeli societies.

ADL

Scholarship on Multiparty Litigation & Settlement

An article recently posted on SSRN by Andrew F. Daughtey and Jennifer F. Reinganum, entitled "A Dynamic Model of Lawsuit Joinder and Settlement" models strategies on both sides of multidistrict litigation. Here is the abstract:

In this paper we examine a dynamic model of the process by which multiple related lawsuits may be filed and combined; we also examine actions a defendant may employ that may disrupt the formation of a joint suit. Our initial model involves two potential plaintiffs, with private information about the harm they have suffered, in a multi-period setting with positive costs of filing a suit. If two plaintiffs file, they join their suits to obtain a lower per-plaintiff trial cost and a higher likelihood of prevailing against the defendant. We find that some plaintiff types never file, some wait to see if another victim files and only then file, some file early and then drop their suits if not joined by another victim and, finally, some file and pursue their suits whether or not they are joined; thus, the equilibrium resembles a 'bandwagon.'

We then consider the effect of allowing preemptive settlement offers by the defendant aimed at discouraging follow-on suits. Preemptive settlement results in a 'gold rush' of cases into the first period. In general, plaintiffs (ex ante) strictly prefer that such preemptive settlements not be allowed, and computational results suggest this may be broadly true for defendants as well; however, the inability of defendants to commit to such a policy results in an equilibrium with preemptive settlement. Finally, we consider partial unawareness of victims as to the source of harm; this provides a role for plaintiffs’ attorneys, who may seek additional victims to join a combined lawsuit. Confidential preemptive settlements in the case of partial unawareness restrict the plaintiff’s attorney from seeking additional victims and therefore leads to higher preemptive settlement amounts. Moreover, the defendant strictly prefers to employ preemptive settlement if the fraction of unaware victims is sufficiently high.

ADL

Ford Settles New Jersey Toxic Tort Case

According to this report in The Record, Ford Motor Co. yesterday reached a settlement in which Ford agreed to pay millions of dollars to settle the claims of 600 residents of Upper Ringwood, NJ.  Although the settlement amount is confidential, the article mentions $10 million as an amount stated by sources.  The claims involved allegations of asthma, cancer, and other illnesses that residents claimed were attributable to Ford's 1960s-1970s dumping of paint sludge in a former mining area of Ringwood.

HME

Does the Google Settlement Matter to this Blog?

I was just perusing the ACS Blog and saw a post on Prof. James Gimmelman's take on the Google Book Settlement - which you may recall is the class action settlement that is giving Google a license to scan all the books in the world into a giant searchable database.  Here is what Gimmelman says:

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.

(Empahsis mine).  Sounds familiar, doesn't it?  Think about aggregate litigation -- all the safeguards of the class action device are absent because, well, its not a class action.  (Gimmelman doesn't think those protections are enough and he's right).  But when ostensibly individual lawsuits are resolved en mass, they are being treated as a class rather than individuals. There's no other way to resolve thousands of cases. People cry out for legislative solutions (asbestos anyone?) and nothing happens. Meanwhile, things happen in the world. People get sick. Defendants get sued.

How good is the legislature at dealing with these issues, if they were to turn their attention to it? Who would like the result?  Is the problem the judicial process or the outcome? (That is, can judges do a good job here or are we really worried about legitimacy?)  What is the public interest and who, if anyone, serves it?  I'm worried that these structural issues - courts vs. legislatures - avoid the real areas of substantive disagreement.

ADL

Tobacco Companies Bring First Amendment Challenge to New Marketing Rules

More from Ross Todd of AmLaw Daily in his post, Big Tobacco Asserts First Amendment with Help from Floyd Abrams.  Here's the complaint.

BGS

Jackpot Justice: Verdict Variability and the Mass Tort Class Action

I posted to SSRN my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temple Rev. 1013 (2007).  Notwithstanding the 2007 formal publication date, the article was published this year.  Here's the abstract:

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.

BGS

Bill Marler on Legal Issues for Food Safety

Bill Marler has posted his brief article, Legal Issues for Food Safety, on Marler Blog.

BGS

Pre-Service Removal to Avoid Removal Limitation Based on In-State Defendant

Drug & Device Law analyzes a recent federal decision denying remand when one defendant is a citizen of the state where the action was originally filed, but that defendant had not yet been served at the time of removal.  Because the plaintiff was from out of state, diversity jurisdiction existed; but federal rules prevent removal if one of the defendants "joined and served" (emphasis added) is a "citizen of the State in which such action is brought."

BGS

Sixth Circuit Fen-Phen Decision on Statute of Repose

Drug & Device Law praises statutes of repose and discusses a recent Sixth Circuit Fen-Phen decision.

BGS

Community Reprise

Professor Lahav's post on Community, Network, and Class Action raises an interesting point:  what do people want from litigation?  My contention isn't that people litigate in order to create a community, but that notions of community can begin to fill in participation desires that large-scale litigation (particularly non-class aggregation where individuals tend to expect their day in court) lacks.  I often return to Tamara Relis's article, "It's Not About The Money!: A Theory on Misconceptions of Plaintiffs Litigation Aims," in which she describes people's motivations in litigating medical injuries as wanting the defendant to admit responsibility, ensuring that the event would never happen again, revealing cover-ups, needing answers, and wanting to punish others.  Thus, unlike these latest cases, which focus on speech, privacy, and publicity, people in personal injury and product liability cases may want different things.  Part of what the procedural justice literature suggests that they want is process, including opportunities to be heard and to participate in the litigation.  Consequently, "Litigating Groups," is (in part) about using community as a proxy for the lack of participation in non-class aggregation.  Of course, Lahav is right: class action members may have few or no process-based expectations.  In fact, they might not even realize that they're part of a class action.  The "day in court ideal" is thus less prevalent for class members than for those involved in non-class aggregation such as the Vioxx litigation.

I'm now working on the successor to "Litigating Groups," which is currently titled "Litigating Together: Social, Moral, and Legal Obligations."  It begins with the observation that we live our lives from two perspectives:  the personal and the collective.  It is the commingling of the personal and the collective in mass litigation that makes it so complex from a group dynamic perspective.  It then suggests ways to implement the theoretical framework in Litigating Groups.   I'm also in the beginning stages of drafting a symposium piece tentatively titled "Aggregation, Community, and the Line Between," which engages the question of why we place so much emphasis on pre-existing communities in large-scale litigation and where we might end up if group cohesion is real, regardless of whether it predates or postdates the decision to sue.  

Should others have additional thoughts about this, I'd love to hear them, either in the comments or by email (eburch at law.fsu.edu).

ECB

Community, Network, Class Action

The most recent BNA Class Action Reporter describes a privacy lawsuit filed by Facebook users alleging that Facebook "a data mining company disguised as a social network, and has repeatedly violated users' privacy, engaged in illegal advertising, and misappropriated users' names and likenesses as a routine part of its business."  The suit, Melkonian v. Facebook Inc., was filed in California on August 17 (see Cal. Super. Ct., No. 30-2009 00293755, 8/17/09). 

This reminds me of the work of two of my fellow bloggers.  Byron Stier has written about mass tort litigation as network (see his paper on SSRN) and Elizabeth Burch has written on the concept of "community" in aggregate litigation (see her paper on SSRN as well).  I think Burch's work in particular speaks to a larger desire to create community in an increasingly atomized world and is in the same vein as the "third place" literature in sociology -- that is, the idea that people need a place beyond work and home to connect with one another: the bowling alley, the soccer field, the Starbucks.   We Americans are torn between a strong tradition of individualism and a desire to find our place in a community and we see the same themes and tensions repeated in the context of litigation.  Yes, there is the tradition of the day in court ideal.  But at the same time we have a very robust class action regime - probably the most robust in the world - and increasingly the use of aggregate litigation serves the same function in areas where the possibility of class treatment has been cut off.  What do we make of this desire? 

It seems to me that litigation is more about speech than connection, and that is what makes these latest class actions that are directly about speech, publicity and privacy (such as this Facebook suit or the Google settlement) so interesting.  The power of creating a collective lawsuit is really the power of voice, but its an anemic type of participation in the deep sense of the term.  That's why non-utilitarians have such a hard time with it.  (This struggle is set forth in a very good article by Lawrence Solum,  Procedural Justice, available on SSRN).  That is also what bothers ethicists about settlements like that in the Vioxx litigation, for similar reasons.  That is, the value of the individual in his own right rather than looking only to the collective good.  A closer look at our history demonstrates that participation has always been a bit more ideal than real.  For a discussion of this history in the academic literature see Robert Bone, Rethinking the Day in Court Ideal and Non Party Preclusion, 67 New York University Law Review 193 (1992) (unfortunately not available on SSRN) and Issacharoff & Witt, The Inevitability of Aggregate Settlement (available on SSRN).  

ADL

Margaret Williams and Tracey George on the Decision to Consolidate Multidistrict Litigation

Margaret Williams (Federal Judicial Center) and Tracey George (Vanderbilt) have posted to SSRN their article, Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation.  Here's the abstract:

This paper provides the preliminary results of a convenience sample of ninety MDL orders from 2003 to 2009. The study investigates the rationale for transfer of federal civil litigation by the Panel, where cases are assigned, and to whom. The purpose of the analysis is to identify factors that explain past transfers by the Panel, both to particular districts and judges. The results provided here represent a draft paper submitted to the Conference on Empirical Legal Studies for possible presentation at its annual meeting in November 2009.

BGS 

Pro-Defense Daubert Ruling in Bausch & Lomb MoistureLoc MDL

Pertaining to the more speculative cases alleging non-fusarium infections.  Drug & Device Law analyzes the opinion.

BGS 

$13.8 Million Smoker Punitive Damages Verdict Against Altria

In the Bullock case in Los Angeles -- more from Bloomberg.

BGS

Richard Epstein on Consumer Regulation

In his July 14 Forbes column, Vanguard or Rearguard?, Richard Epstein (Chicago & NYU) recounts the history of the FDA, as well as other regulatory frameworks, and concludes that "[r]egulatory failure is, on average, a far greater risk than market failure."

BGS

Replacement of Defense Billable Hour with Flat Fee

The Wall Street Journal has an article today discussing the trend, accelerated by the recession, of replacing billable hours with flat fees.  Amy Schulman, general counsel for Pfizer, is quoted in the article, and the Journal also provides a video of Amy Schulman discussing Pfizer's new flat-fee approach with their law firms. Prior to joining Pfizer, Schulman lead the mass tort/class action practice at DLA Piper.  (For more on Schulman, see my prior post.)  

Neither the article nor video specifically mention whether Pfizer will use flat fees to pay defense lawyers in mass torts, though it is suggested since Schulman says all of the Pfizer Legal Alliance firms (all 16 of them) will be paid by flat fees.  Are mass torts sufficiently predictable that flat-fee arrangements can be negotiated? If so, it supports the notion that the initial Wild West mass torts era has settled into a more orderly approach.  One way to make flat fees more viable for mass torts would be to peg flat fees to each procedural stage of a mass tort, with an additional exit price attached to negotiating a far-reaching settlement; of course, given the many variables of a mass tort, flat fees for any procedural stage would likely need to be separately negotiated for each mass tort -- which would also have the benefit of forcing client and lawyer to think early about their overarching mass tort strategy.

BGS 

Viagra MDL Judge Rejects Plaintiff Expert Testimony Under Daubert

A detailed analysis (with rejoicing) from Drug and Device Law.  The opinion details deficiencies in the plaintiff expert's previously peer-reviewed and published study.  

For a past article of mine that set forth problems in the main study underlying the opinions of plaintiffs' experts in the phenylpropanolamine (PPA) litigation, see here. 

BGS

U.K. Government's Response to Collective Redress in Europe

I've mentioned in previous posts that the Civil Justice Council recommended using collective actions in Europe in its report, "Improving Access to Justice through Collective Actions."  The U.K.'s Ministry of Justice has recently published its response to the report in which it unequivocally stated that it "does not support the introduction of a generic right of collective action."  Here are a few of the key points that the Government makes in its summary:

• In particular, regulatory options should be considered before introducing court based options. For example, in some sectors it might be appropriate to give regulators power to order the payment of compensation. 

• The distinction between opt-in and opt-out models for collective actions is not necessarily clear cut. They are to some extent part of a continuum. There are several options depending on the stage of proceedings at which the class is closed. Some of these may combine the features and benefits of both models. 

• The issue of who may bring collective actions is best determined sector by sector. Different criteria and methods of authorisation may apply (including authorisation by the court on a case by case basis). 

• The existence of effective ADR mechanisms in any collective action procedure will be crucial. So too will strong case management by the court, including merits and cost-benefit criteria. 

• The ‘loser pays’ principle for costs should be maintained to help deter unmeritorious litigation. 

• The Government will develop a framework document setting out the issues to be addressed when introducing a right of collective action, with options and, where appropriate, a preferred approach. This will act as a ‘toolkit’ for policy makers and legislators. 

• The Ministry of Justice will work with the Civil Justice Council and Civil Procedure Rule Committee to develop flexible generic procedural rules within which any collective action scheme can operate. 

My take based on the U.S. experience is that the government is often a poor sole monitor.  One need not look too far into the FDA's very recent history to find fault.  For those who are interested in this general topic, NYU Law Review hosted a symposium on Tort Law in the Shadow of Agency Preemption and I've written about it a bit here and here.

ECB

Anita Bernstein on Asbestos Achievements

Anita Bernstein (Brooklyn) has posted to SSRN her article, Asbestos Achievements.  Here's the abstract:

This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.

BGS