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Law professors discuss mass tort and class action lawsuits.
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So What Should the Law Do About Jury Variability?
Posted on November 18, 2009In my previous post pointing readers to Tim Lytton's thought provoking post on TortsProfBlog, I neglected to mention our own Byron Stier's work on the same issue. Interested readers might look to his piece, Jackpot Justice available on SSRN. Here...
On the So-Called "Litigation Lottery" in Torts
Posted on November 17, 2009Tim Lytton has a very interesting post up on Torts Prof Blog about the tort system and the accusations of a litigation lottery. Here is the link. I am very interested in Lytton's critique. I think he is right that...
Around the Web
Posted on November 17, 2009Dan Levine, Pair of Plaintiffs Lawyers May Face Different Fates in 9th Circuit Disciplinary Action, The Recorder (discussing disciplinary action in Nicaraguan pesticides case). Francis E. McGovern (Duke), The Second Generation of Dispute System Design: Reoccurring Problems and Potential Solutions,...
Embedded Aggregation in Civil Litigation
Posted on November 16, 2009Richard Nagareda has just posted "Embedded Aggregation in Civil Litigation" on SSRN. I saw him present this piece at NYU and it is worth reading. I always enjoy Nagareda's work and this is no exception. The Article does a good...
Choice of Law and Class Actions
Posted on November 13, 2009The Shady Grove case got me thinking about uniformity (or lack thereof) in class action law across the circuits and reminded me that in the MTBE Products Liability Litigation, Judge Scheindlin (SDNY) held that the interpretation of the requirements of...
Issacharoff & Klonoff on the Mass Tort Settlements
Posted on November 12, 2009Samuel Issacharoff (NYU) & Robert Klonoff (Lewis & Clark) have just posted "The Public Value of Settlement" on SSRN. Here is the abstract: This article, part of a symposium honoring the 25th anniversary of Owen Fiss?s Against Settlement, takes issue....
Gilles on Consumer Class Actions
Posted on November 11, 2009We all know judges are hostile to mass tort class actions, but Myriam Gilles (Cardozo) argues that consumer class actions are also suffering the brunt of judicial hostility in an article with the excellent title "Class Dismissed: Contemporary Judicial Hostility...
Judge Requests Consolidation of Birth Control Suits
Posted on November 10, 2009From the Tort Prof blog: http://lawprofessors.typepad.com/tortsprof/2009/11/judge-requests-mass-tort-status-for-new-jersey-birth-control-suits-.html ADL
Recap of Shady Grove Oral Argument
Posted on November 09, 2009Scotusblog has a very nice recap of the Shady Grove oral argument, better than the real thing in my opinion. I was lucky to be teaching Erie last week in my civil procedure class and have been thinking a lot...
The Trouble with All-or-Nothing Settlements
Posted on November 04, 2009My new paper, The Trouble with All-or-Nothing Settlements, is now available on SSRN. I presented it at last week's symposium in Kansas on "Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz." The theme of the conference got me thinking....
Argument in Shady Grove Orthopedic Today
Posted on November 02, 2009The Supreme Court will be hearing oral arguments in Shady Grove Orthopedic v. Allstate today. This case is about the intersection between two perennial favorite topics among civil procedure enthusiasts: class actions and Erie. Will Hanna survive Shady Grove? I'm...
WLF Web Seminar on Off-Label Communication
Posted on October 29, 2009On October 14, 2009, the Washington Legal Foundation hosted a web seminar, Communicating on Off-Label Treatments: Navigating the Treacherous Path Paved by Civil and Criminal Law Enforcement, with speakers Robert Salerno and Adam Hoffinger of Morrison & Foerster...
Vioxx Verdicts
Posted on October 29, 2009I am collecting all the Vioxx verdicts - here is what I have so far. I welcome reader corrections and information about the current status of all of these cases - have they been appealed to higher courts? settled and...
Confidential Verdicts
Posted on October 28, 2009I was thinking about Erichson's post on the Prempro punitive damages verdict that has been temporarily sealedl so as not to bias the jury in subsequent trials. This is a very curious aspect of the law to me - why...
Sealed Verdict in Prempro Punitives Trial
Posted on October 27, 2009Yesterday, a Philadelphia jury found for the plaintiff in the punitive damages phase of a trial involving Prempro, the hormone replacement therapy. How much Wyeth (now a unit of Pfizer) must pay Connie Barton, however, remains secret. Judge Sandra Moss,...
South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million
Posted on October 27, 2009Hat tip to the TortProf blog on this one. You can see their post here. ADL
Class action filed involving Puerto Rico explosion
Posted on October 26, 2009On Friday morning, a huge explosion occurred at a Caribbean Petroleum Corp. fuel storage facility near San Juan, Puerto Rico. On Friday afternoon, the first class action was filed. Here's the WSJ Law Blog report with a brief interview in...
Fall 2009 Newsletter for ABA Mass Torts Litigation Committee
Posted on October 20, 2009The newsletter is now available and includes articles on Lone Pine orders, public nuisance law, federal preemption, sophisticated user and sophisticated intermediary defenses, the Fake Bad Scale Test, and document review. BGS
Passing of David I. Shapiro
Posted on October 20, 2009Litigator David I. Shapiro, founding partner of the firm Dickstein Shapiro, has died. In a career that spanned many areas of litigation, Mr. Shapiro also was active in several prominent mass tort litigations, and came to focus on mediation as...
Edward Cheng on the Reference Class Problem in Mass Torts
Posted on October 19, 2009Edward Cheng has sent me the following response to my post on his article A Practical Solution to the Reference Class Problem. Many thanks to Alexandra for raising a number of good questions about the implications of my article. I?ll...
Fifth Circuit Ruling for State Farm in Hurricane Katrina Insurance Dispute
Posted on October 19, 2009More from AmLaw Litigation Daily. The opinion is here. Congratulations to my former Skadden colleagues Sheila Birnbaum, Doug Dunham, and Ellen Quackenbos, who represented State Farm. BGS
Paxil Verdict
Posted on October 16, 2009Bad news for Glaxo. The first trial involving claims that the antidepressant Paxil causes birth defects ended with a $2.5 million jury verdict for the plaintiff. The family of Lyam Kilker sued GlaxoSmithKline in Philadelphia Common Pleas Court, blaming the...
Teaching Civil Procedure
Posted on October 15, 2009Recently law professors have been taking a critical look at how we teach civil procedure - one of my core topics and relevant to this blog. On Concurring Opinions, a discussion is going on between two civ pro professors about...
Which of these things is most like the others? The Reference Class Problem
Posted on October 14, 2009The central requirement of the rule of law is equality before the law, which means that like cases ought to be treated alike. One of the fundamental problems to valuing cases is to determine what cases are alike under what...
Zicam MDL
Posted on October 13, 2009The Zicam MDL has been centralized in the District of Arizona before the Hon. Frederick J. Martone. The order can be found here. Hat tip: Torts Prof Blog. ADL
Advisory Jury Trials in FEMA Litigation
Posted on October 13, 2009Plaintiffs' lawyers in the FEMA litigation arising out of the exposure of hurricane Katrina victims to fumes while they were living in government issued trailers have asked the court to conduct two "mock" non-binding summary jury trials. The first plaintiff's...
Agent Orange in the News
Posted on October 12, 2009The New York Times reports that the government has made it easier for veterans claiming to be suffering from diseases caused by agent orange to file claims. See here: Door Opens to Health Claims Tied to Agent Orange. ADL
Fen-Phen Fee of $567 Million
Posted on October 09, 2009The Third Circuit upheld a fee of $567 million yesterday in the In re Diet Drugs Products Liability Litigation case noting that the amount "through extraordinarily large, is not excessive." Here's an excerpt of the Legal Intelligencer's story: The ruling...
Toxic Tort Damages Class Action Certified Based on Aggregate Proof
Posted on October 08, 2009In Shar v. Raytheon, ---- F.R.D. ---, 2009 WL 3193152, M.D.Fla. 2009 (Sept. 30, 2009), the Middle District of Florida District Court approved a toxic tort class action arising out of the contamination of groundwater near a Raytheon plant in...
Chinese Drywall Litigation Update
Posted on October 07, 2009The Sarasota Herald-Tribune reported yesterday that Florida's Senate Community Affairs Committee held a hearing to discuss both legislative and state agency action to prevent builders from using tainted Chinese drywall. The article reports that Florida is considering the following legislative...
How Transparent Are Class Action Outcomes?
Posted on October 07, 2009In a paper that I somehow missed, Bill Rubenstein (Harvard) and Nicholas Pace (RAND) demonstrate that class action outcomes are not transparent. The paper is called "How Transparent Are Class Action Outcomes" and is available on Rubenstein's website here and...
Martin Redish et al. on Cy Pres Relief and the Pathologies of the Modern Class Action
Posted on October 06, 2009Martin Redish, Peter Julian, and Samantha Zyontz (all of Northwestern) have a new paper, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis. Here's Redish's description: BGS
Food Safety - Put a Trial Lawyer out of Business
Posted on October 06, 2009Bob Marler, noted food borne illness lawyer, is sending T-Shirts that say "Put A Trial Lawyer Out of Business" to Senators today to advocate for better regulation of foodstuffs. See the post here. ADL
Enforcing the Constitution in the 21st Century
Posted on October 01, 2009A symposium at UMKC law school will address the enforcement of constitutional rights after Iqbal will be held on October 22-23. The highlight: Pamela Karlan (Stanford) will be the keynote speaker. The flyer for the conference can be found here:...
Air Disaster Case Dismissed on Forum Non Grounds
Posted on September 25, 2009BNA Class Action Reporter notes that a class action brought against Airbus on behalf of the 77 persons that perished when a plane went down near Brazil in July 1007 was dismissed on Forum Non Conveniens grounds. The case will...
Latest Pleadings Scholarship
Posted on September 25, 2009Two more voices have been added to the discussion of pleadings and the significance of the Twombly/Iqbal line of precedent. They are Robert Bone (Boston U/U Texas) and Ed Hartnett (Seton Hall), two prominent civil procedure scholars that are very...
New Casebook by Stephen Yeazell
Posted on September 22, 2009Stephen Yeazell (UCLA) has a new casebook out called "Contemporary Civil Litigation" (Aspen 2009) that integrates civil litigation and ethics issues. While I ordinarily wouldn't blog about a casebook, Yeazell's Civil Procedure coursebook and especially the teacher's manual is really...
Yaz Litigation
Posted on September 18, 2009The FDA recently sent a warning letter to Bayer, which manufacturers Yaz and Yasmin (both types of birth control pills), that it has quality control problems at its German plant. The FDA claims that Bayer's testing method averaged out the...
Kansas Law Review - Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz
Posted on September 17, 2009Kansas Law Review's symposium this year is titled "Aggregate Justice: Perspectives Ten Years After Amchem." Here's the official blurb and the line-up of speakers: Friday October 30, 2009 Green Hall, 1535 W. 15th Street, Lawrence, Kansas 66045 We are excited...
Procedure/Substance
Posted on September 16, 2009"I'll let you write the substance . . . and you let me write the procedure, and I'll screw you every time." Rep. John Dingell, Hearings on H.R. 2327 Before the Subcomm. on Admin. Law and Governmental Relations of the...
Regulation and the "Big Case"
Posted on September 16, 2009Frederick Schauer and Richard Zeckhauser have posted "The Trouble With Cases" on SSRN. This article makes an interesting argument about the dearth of rigorous empirical basis for regulation - by litigation and by legislation as well. CAFA is a wonderful...
The Case Against Products Liability
Posted on September 16, 2009Law and Economics scholars Steven Shavell and A. Mitchell Polinsky have posted "The Uneasy Case for Products Liability" on SSRN. Here is the abstract: We explain in this Article that the benefits of product liability may well be outweighed by...
Fosamax Mistrial
Posted on September 11, 2009Judge John Keenan declared a mistrial today in Boles v. Merck, the first bellwether trial in the Fosamax litigation. As we mentioned yesterday and the day before, tensions have run high in the jury room. Here's an excerpt from the...
On Teaching 9/11 in a Torts Class
Posted on September 11, 2009On this 8th anniversary of the 9/11 attacks, I thought I would link my 2006 post on teaching 9/11 in a torts class, as well as Howard Erichson's thoughtful comment on my post. BGS
Fosamax Jury Update
Posted on September 10, 2009CNN reports this morning that Judge Keenan has "called for a daylong 'cooling off' period" in the Fosamax (an osteoporosis drug) litigation. Apparently jury deliberations became quite tense; the jurors have been deliberating for the last week over Shirley Boles's...
Satish K. Jain on the Efficiency of the Negligence Rule
Posted on September 09, 2009Satish K. Jain (Jawaharlal Nehru University) has posted to SSRN his article, On the Efficiency of the Negligence Rule. Here's the abstract: In the law and economics literature there are three different versions of negligence rule which have been discussed...
Fosamax Update: Boles Jury Struggling; Summary Judgment Rejection
Posted on September 09, 2009Two news items from the Fosamax front, one involving jury deliberations in the Boles trial, the other involving Merck's effort to win summary judgment in 24 other cases. The Fosamax litigation involves about one thousand plaintiffs' claims against Merck alleging...
Objections in the Google Book Settlement
Posted on September 09, 2009The New York Times has an article on the large numbers of objections filed in the Google book settlement as the date of the fairness hearing looms. The article is at this link: 11th Hour Filings Oppose Google's Book Settlement...
Class Actions and Sneetches
Posted on September 09, 2009You generally won't find much humor over here at the Mass Tort Blog. And, to be honest, this post is more about civil procedure generally than class actions in particular. But, there is a section on Class Actions and Sneetches...
Rebecca Love Kourlis and Jordan Singer on Managing Toward the Goals of Rule 1
Posted on September 09, 2009Rebecca Love Kourlis (Denver) and Jordan M. Singer (Denver) have posted to SSRN their article, Managing Toward the Goals of Rule 1. Here's the abstract: Two new studies may help federal judges better achieve Federal Rule of Civil Procedure 1?s...
Joseph Raz on Responsibility & the Negligence Standard
Posted on September 08, 2009Joseph Raz (Columbia & Oxford) has posted to SSRN his article, Responsibility & the Negligence Standard. Here's the abstract: The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility...
Pending Supreme Court Case on False Claims Act
Posted on September 07, 2009More on the case, Graham County v. United States ex rel. Wilson, from the Washington Legal Foundation, which has authored an amicus brief. BGS
New civil procedure book
Posted on September 04, 2009My 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...
A "Good Faith" Standard for Reviewing Class Certification?
Posted on September 04, 2009Eran 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...
Scholarship on Multiparty Litigation & Settlement
Posted on September 04, 2009An 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...
Ford Settles New Jersey Toxic Tort Case
Posted on September 04, 2009According 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,...
Does the Google Settlement Matter to this Blog?
Posted on September 02, 2009I 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...
Tobacco Companies Bring First Amendment Challenge to New Marketing Rules
Posted on September 02, 2009More 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
Posted on September 02, 2009I 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,...
Pre-Service Removal to Avoid Removal Limitation Based on In-State Defendant
Posted on August 31, 2009Drug & 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...
Bill Marler on Legal Issues for Food Safety
Posted on August 31, 2009Bill Marler has posted his brief article, Legal Issues for Food Safety, on Marler Blog. BGS
Sixth Circuit Fen-Phen Decision on Statute of Repose
Posted on August 30, 2009Drug & Device Law praises statutes of repose and discusses a recent Sixth Circuit Fen-Phen decision. BGS
Margaret Williams and Tracey George on the Decision to Consolidate Multidistrict Litigation
Posted on August 28, 2009Margaret 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...
Community Reprise
Posted on August 28, 2009Professor 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....
Community, Network, Class Action
Posted on August 28, 2009The 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'...
Pro-Defense Daubert Ruling in Bausch & Lomb MoistureLoc MDL
Posted on August 27, 2009Pertaining 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
Posted on August 25, 2009In the Bullock case in Los Angeles -- more from Bloomberg. BGS
Richard Epstein on Consumer Regulation
Posted on August 24, 2009In 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...
Replacement of Defense Billable Hour with Flat Fee
Posted on August 24, 2009The 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...
Viagra MDL Judge Rejects Plaintiff Expert Testimony Under Daubert
Posted on August 23, 2009A 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...
U.K. Government's Response to Collective Redress in Europe
Posted on August 23, 2009I'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...
Anita Bernstein on Asbestos Achievements
Posted on August 21, 2009Anita 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...
Kenneth Klein on Pleading, Iqbal, and the 7th Amendment
Posted on August 20, 2009Kenneth Klein (Cal Western) has posted on SSRN his article, Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores. Here's the abstract: Over the course of the last two centuries, the realities of modern civil litigation and...
Rule 11 Ruling in the DC Circuit
Posted on August 19, 2009The ABA/BNA Lawyers Manual on Professional Responsibility reports that Judge Merrick Garland overturned a sanction against a lawyer who failed to distinguish between facts and inferences in his memorandum opposing summary judgment. Judge Garland wrote: ?There is no basis in...
Fraud in the DBCP Lawsuits
Posted on August 19, 2009The Wall Street Journal's Steve Stecklow offers a detailed article that's riveting reading. Here's a link to Judge Chaney's opinion on fraud on the court in the DBCP lawsuits. BGS
Kentucky Fen-Phen Lawyers Given Long Prison Sentences
Posted on August 18, 2009Attorneys William Gallion and Shirley Cunningham Jr. were sentenced yesterday to 25 and 20 years, respectively, for defrauding clients out of millions of dollars in connection with a settlement of fen-phen claims. They were ordered, in addition, to pay over...
First Circuit Decision on Federal Claims Act
Posted on August 18, 2009FDA Law Blog analyzes the decision in United States ex rel Duxbury v. Ortho Biotech Products. BGS
Climate Change Litigation and Legislation
Posted on August 18, 2009Sean Wajert (Dechert) from Mass Tort Defense offers an update. BGS
Beck/Herrmann on Moving to Dismiss MDL Master Complaints
Posted on August 17, 2009Discussed at Drug & Device Law. BGS
Quarter Million Page Views!
Posted on August 17, 2009Thanks to all our readers -- the Mass Tort Litigation Blog has exceeded 250,000 page views! Keep on reading, and we'll keep on posting! BGS
S. Todd Brown on The Private Market for Specious Claims
Posted on August 17, 2009S. Todd Brown (Buffalo) has posted on SSRN his article, The Private Market for Specious Claims. Here's the abstract: One of the most curious aspects of the rise of aggregate mass tort litigation is the evolution of private markets for...
Mass Tort Litigation on Facebook
Posted on August 17, 2009Those interested in following mass tort developments via Facebook may be interested in choosing to "Become a Fan" of Mass Tort Litigation on Facebook. BGS
Dan Markel on Taxing Punitive Damages
Posted on August 15, 2009Dan Markel (Florida State) posts on PrawfsBlawg about his forthcoming article on taxing punitive damages. BGS
Richard Epstein on Preemption and the Medical Device Safety Act
Posted on August 15, 2009Richard Epstein (Chicago & NYU) discusses them both in his recent Forbes column. BGS
Second Trial-Court Denial of NJ Vioxx Class
Posted on August 15, 2009Analysis of Judge Higbee's opinion at Drug & Device Law. Here's the opinion. BGS
Rollback of Preemption Under Obama Administration
Posted on August 14, 2009Discussed by Carter Wood at Point of Law. BGS
Third Circuit Rejects FDA Preemption for Snapple Consumer Fraud Suit
Posted on August 14, 2009More from Allison Frankel's short article in Am Law Daily. Here's the opinion. UPDATE: The Consumer Advertising Law Blog has analyzed the opinion (H/t Point of Law). BGS
Kyle Logue on Coordinating Sanctions in Torts
Posted on August 14, 2009Kyle D. Logue (Michigan) has posted to SSRN his article, Coordinating Sanctions in Torts. Here's the abstract: This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated....
Elizabeth Nowicki on Apologies and Good Lawyering
Posted on August 14, 2009Elizabeth Nowicki (Tulane) has posted to SSRN her article, Apologies and Good Lawyering. Here's the abstract: In everyday life, apologies are common. For example, if one shopper bumps into another in a crowded grocery store, apologies abound. Or if a...
Eric Engle on The Globalization of Tort Law
Posted on August 14, 2009Professor Eric Engle (Harvard & Universitat Bremen) has posted to SSRN his article, Aristotelian Theory and Causation: The Globalization of Tort Law. Here's the abstract: Instant global communication and world-wide trade and travel have broken down legal barriers despite historical...
Art Hinshaw and Jess Alberts on Attorney Negotiation Ethics
Posted on August 14, 2009Art Hinshaw (Arizona State) and Jess Alberts have posted their article, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics. Here's the abstract: The code of ethical conduct for lawyers -- the American Bar Association?s Model Rules of...
Thomas Main on The Procedural Foundation of Substantive Law
Posted on August 14, 2009Professor Thomas Main (Univ. of Pacific) has posted to SSRN his article, The Procedural Foundation of Substantive Law, 87 Wash. Univ. L. Rev. (forthcoming 2009). Here's the abstract: The substance-procedure dichotomy is a popular target of scholarly criticism because procedural...
Patricia Hatamyar on The Effect of "Tort Reform" on Case Filings
Posted on August 13, 2009Professor Patricia W. Hatamyar (Oklahoma City Univ.) has posted on SSRN her article, The Effect of 'Tort Reform' on Tort Case Filings, 43 Valparaiso Univ. L. Rev. (forthcoming 2009). Here's the abstract: An empirical study of the number and types...
Elizabeth Bahr on Foreign Sovereign Immunities Act and Compensation of Military Victims of War on Terror
Posted on August 13, 2009Elizabeth Bahr of George Mason Law School has posted to SSRN her Comment, Is the Gavel Mightier than the Sword? Fighting Terrorism in American Courts: The Problematic Implications of Using the Foreign Sovereign Immunities Act to Compensate Military Victims of...
Jason C. Miller on Michigan's Regulatory Compliance Defense
Posted on August 13, 2009Jason C. Miller of University of Michigan has posted to SSRN his Note, When and How to Defer to the FDA: Learning from Michigan's Regulatory Compliance Defense, 15 Mich. Telecomm. & Tech. L. Rev. 565 (2009). Here's the abstract: Should...
ABA's 13th Annual National Institute on Class Actions
Posted on August 12, 2009The ABA will offer the 13th Annual National Institute on Class Actions on October 30 in San Francisco, and November 20 in New York. BGS
Move Over Public Citizen...
Posted on August 11, 2009Ted Frank, formerly a fellow at the American Enterprise Institute, has moved into the business of objecting to consumer class action settlements. Here is a link to an interview with him on Above The Law. So much has been written...
First Fosamax Trial Against Merck Begins Today
Posted on August 11, 2009Am Law Daily's Priti Patnaik writes about the Boles case: Starting Tuesday, pharma giant Merck & Co., Inc. faces the first trial over its osteoporosis drug Fosamax. More than 900 such lawsuits have been filed by more than 1,200 plaintiffs...
Bernstein on Implied Reverse Preemption
Posted on August 10, 2009Anita Bernstein (Brooklyn Law) has recently posted an intriguing article in SSRN entitled "Implied Reverse Preemption." Here is the abstract: When they apply the doctrine of preemption, courts refuse to hear claims for personal injury on the ground that adjudication...
Federal Judicial Center Management Guides for MDL
Posted on August 08, 2009The Federal Judicial Center has posted two guides for management of a multidistrict litigation: (1) Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges; and (2) Ten Steps to Better Case Management: A Guide for Multidistrict...
Vytorin and Zetia Settlement
Posted on August 07, 2009The New York Times reported yesterday that Merck and Schering-Plough have agreed to pay $41.5 million to settle class claims that they withheld the results of an unfavorable clinical trial. The clinical trial apparently linked Vytorin and Zetia to harmful...
MTBE Trial in DSNY Ongoing
Posted on August 07, 2009The New York Times reports that the City of New York's lawsuit against Exxon for water contamination with MTBE is ongoing in Queens. The MTBE multidistrict litigation is before Judge Shira A. Scheindlin of the Southern District. ADL
Lawsuit Growth in 2008
Posted on August 07, 2009Articles in the ABA Section of Litigation's Litigation News and the Baltimore Business Journal summarize the 2009 Law360 Litigation Almanac. Among the federal-court findings: class actions rose 8% (reaching an all-time high); product liability litigation increased 20%; federal environmental lawsuits...
First Fosamax Trial to Begin Next Week
Posted on August 06, 2009The first Fosamax trial is set to begin Tuesday in federal court in New York. Merck is facing about 850 lawsuits alleging that Fosamax, a widely used osteoporosis drug, increases the risk of osteonecrosis of the jaw (ONJ). Most of...
Did Iqbal (and Twombly) Transform Pleadings?
Posted on August 04, 2009Most people think that Iqbal definitively put to rest the old "notice pleading" standard that we were all raised on. But I've found two dissenters: Adam Steinman has an article up on SSRN entitled "The Pleading Problem" and Robert Bone...
Baker on Insurance, Transparency and the Civil Justice System
Posted on July 29, 2009Tom Baker (Penn) has published a chapter on SSRN that makes some important points about what we know, and what we don't know, about the civil justice system. The chapter is entitled Transparency Through Insurance, Mandates Dominate Discretion (you can...
Mass Tort Score Card
Posted on July 28, 2009The folks over at Drug & Device Law have an interesting post evaluating the trends in their field in the last twenty five years from the defense point of view. Click on this link to see the post. Overall, their...
First Neurontin Trial: Mark Lanier for Plaintiffs, and Mark Cheffo and William Ohlemeyer for Pfizer
Posted on July 27, 2009Article in Am Law Litigation Daily -- Mark Lanier Work His Magic in 'Very Tough' Neurontin Test Trial?, by Ben Hallman. Mark Cheffo (Skadden) and William Ohlemeyer (Boies Schiller) will represent Pfizer. Here's an excerpt: Mark Lanier told the Litigation...
The Advance and Retreat of Pre-emption
Posted on July 22, 2009Was going through some old issues of the ABA Journal and found this interesting article from the May issue -- Business Downturn: As the market tumbles, so does the corporate pre-emption defense, by David G. Savage. Here's an excerpt: For...
More on Iqbal
Posted on July 21, 2009Adam Liptak of the New York Times has an article in yesterday's Times on how Iqbal has affected pleading thus far. He notes that the decision has already been cited over 500 times in the last 2 months. Here's an...
Plaintiffs' Expert Testimony on General Causation Excluded in Non-Fusarium Eye-Infection Contact-Lens Case Against Bausch & Lomb
Posted on July 20, 2009Article in AmLaw Litigation Daily -- Shook Hardy Wins Junk Science Dismissal for Bausch & Lomb, by Ben Hallman. Here's an excerpt: In 2006 Bausch & Lomb yanked its ReNu Moisture Lock contact lens solution from store shelves following a...
Federal Court in NJ Dismisses Off-Label-Marketing Suit Against Schering-Plough
Posted on July 20, 2009Article in AmLaw Litigation Daily -- Schering-Plough Wins Dismissal of 'Off-Label' Suit, by Ben Hallman. Here's an excerpt: A recent decision by a New Jersey federal court sets a tough standard for plaintiffs trying to piggyback on government investigations of...
Subprime Public Nuisance Case Rejected by Northern District of Ohio
Posted on July 20, 2009Brian P. Brooks (O'Melveny & Myers) has published his article, Public Nuisance Litigation Against Subprime Industry Hits Roadblock in Cleveland, in the July Issue of the Federalist Society's Engage. BGS
The Law of the Banana, Part II
Posted on July 15, 2009Article in the Los Angeles Times -- Pesticide cases could be upended, by Victoria Kim and Alan Zarembo. Here's an excerpt: The unraveling of multimillion-dollar Los Angeles cases alleging that Nicaraguan men had been sterilized by pesticide exposure is now...
Latest Use of Bellwether Trials
Posted on July 07, 2009Bellwether trials are gaining popularity, particularly in Louisiana. After Judge Fallon used the trials to help establish settlement values in the Vioxx litigation, Judge Kurt D. Engelhardt is proposing their use in the litigation over formaldehyde-laden FEMA trailers (FEMA Trailer...
Certification Denied in St. Jude Heart Implant MDL
Posted on July 06, 2009The U.S. District Court for the District of Minnesota recently issued a ruling denying a third attempt at class certification in a consumer fraud MDL alleging material omissions by a manufacturer of a heart valve whose product was found to...
Douglas Smith on Preemption After Wyeth v. Levine
Posted on July 05, 2009Douglas Smith (Kirkland & Ellis) has posted on SSRN his article, Preemption After Wyeth v. Levine, Ohio St. L.J. (forthcoming 2009). Here's the abstract: This Article addresses the Supreme Court?s recent preemption decision in Wyeth v. Levine. In Wyeth, the...
Robert Rabin on Conflicting Conceptions of Tort Preemption
Posted on July 05, 2009Professor Robert Rabin (Stanford) has posted on SSRN his article, Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption, Brook. L. Rev. (forthcoming 2009). Here's the abstract: Beginning in 1992, with the landmark decision in Cipollone...
Cert denied in 9/11 Saudi Liability Case
Posted on June 30, 2009The Supreme Court yesterday denied certiorari in Burnett v. Al Baraka, in which plaintiffs sought to hold Saudi Arabia and the Saudi royal family liable for the September 11 terrorist attacks. The plaintiffs sought to establish liability by linking the...
Roche Pulls Accutane Off the Market
Posted on June 30, 2009Roche notified the FDA today that it was pulling Acctane (an acne medicine) off the market. The company faces at least $33 million damage award from jury trials and faces around 5,000 personal injury claims. Michael Hook (an FSU grad...
Supreme Court Reaffirms Availability of Damages for Fear of Future Illness in Asbestos Cases
Posted on June 29, 2009In CSX Transportation, Inc. v. Thurston Hensley, the Supreme Court addressed the question of whether a former railroad worker who contracted astestosis after long-term exposure to asbestos on the job could recover damages for pain and suffering under the Federal...
Interesting Cases in this BNA Class Action Litigation Report Released Today
Posted on June 26, 2009Some of the highlights include: Class members may sue an attorney who altered a class settlement in a smokeless tobacco class action without first notifying class members, the Fourth Circuit held in an unpublished opinion (Martin v. Ball, 4th Cir.,...
The GM Reorganization and Product Liability Claims
Posted on June 26, 2009Article in the Wall Street Journal -- Car Liability, Dealers Pose New Hurdles For GM Plan, by Mike Spector and Jeffrey McCraken. Here's an excerpt: The U.S. Treasury Department is negotiating with more than a dozen state attorneys general to...
NTSB Finds Identifies Two New Instances of Airbus-Sensor Problems
Posted on June 26, 2009Article in the Wall Street Journal -- Safety Board Cites Two New Reports of Problems With Airbus Sensors, by Andy Pasztor. Here's an excerpt: U.S. air-crash investigators are looking into two recent incidents in which they believe Airbus A330 jetliners...
Nestle Not Completely Cooperative with FDA Inspections Prior to E. Coli Outbreak
Posted on June 26, 2009Article in the Wall Street Journal -- Nestlé Unit Denied FDA Requests, by Jane Zhang. Here's an excerpt: The Nestlé USA plant at the center of a federal probe into an E. coli outbreak involving cookie dough refused to give...
Exxon to Bear Its Own Costs in Punitive Damages Case
Posted on June 23, 2009BNA Law Week reports that the 9th Circuit has held that each party must bear its own costs in the Exxon punitive damages litigation. (Baker v. Exxon Mobil Corp. (In re Exxon Valdez), 9th Cir., No. 04-35182, 6/15/09). The costs...
A Collective Solution to the Subprime Mortgage Disaster
Posted on June 22, 2009Ray Brescia (Albany Law School) has posted an article entitled, Tainted Loans: The Value of a Mass Torts Approach in Subprime Mortgage Litigation, advocating the employment of techniques such as class actions, consolidation of related cases, and global settlements for...
President Obama Signs Tobacco Bill Giving FDA Oversight
Posted on June 22, 2009Article on cnn.com -- Obama signs bill putting tobacco products under FDA oversight. Here's an excerpt: President Obama signed landmark legislation Monday giving the Food and Drug Administration new power to regulate the manufacturing, marketing and sale of tobacco...
Sherman on Aggregate Litigation
Posted on June 19, 2009Edward Sherman (Tulane) one of the most experienced scholars in the area of complex litigation has posted "An MDL Model for Resolving Complex Litigation if a Class Action Is Not Possible" on SSRN. The piece was published in Tulane Law...
Geistfeld on Products Liability and Consumer Choice
Posted on June 19, 2009Mark Geistfeld (NYU) has posted an article entitled "The Value of Consumer Choice in Products Liability" on SSRN. I always learn from his work. Here is the abstract: Tort law has always recognized the principle expressed by the Latin maxim...
Shell Settles Nigerian Human Rights Case for $15.5 Million
Posted on June 10, 2009Article on cnnmoney.com -- Shell pays $15.5M in Nigeria suit: Oil company settles a claim that it violated human rights leading to the killings of a famous writer and other activists in 1995. Here's an excerpt: Shell has agreed to...
Tobacco Bill Giving FDA Regulatory Authority Progresses in Senate
Posted on June 09, 2009As a follow-up to Byron's earlier post on the pending bill to give the FDA regulatory authority over tobacco products, here's a link to the Associated Press story and to the bill itself. The bill responds to the Supreme Court's...
Cert Granted in Jurisdiction Case
Posted on June 08, 2009The Supreme Court granted cert today in Hertz v. Friend, No. 08-1107. The question presented is what test applies for purposes of determining a corporation's principal place of business for diversity jurisdiction citizenship under 28 U.S.C. § 1332: the "place...
Motion to Dismiss Denied In 9/11 First Responders Litigation
Posted on June 08, 2009The motion was made by two defendants in reliance on Bell Atlantic v. Twombly. Judge Hellerstein's denial of the motion can be found here.
NIH Study Questions Benefits of Stents and Diabetes Drugs Avandia and Actos
Posted on June 08, 2009Article in the Wall Street Journal -- Diabetes Study Questions Expensive Treatments: NIH Finds Patients With Heart Disease Fare Equally Well Without Stents and Drugs Such as Avandia, Actos, by Keith J. Winstein. Here's an excerpt: Aggressive use of expensive...
Tobacco, the FDA, and Preemption
Posted on June 08, 2009Op-ed in today's Wall Street Journal -- Tobacco and the Tort Bar, by Mark H. Berlind. Here's an excerpt: Congress is on the verge of passing sweeping legislation that would empower the Food and Drug Administration (FDA) to regulate tobacco...
Chemerinsky on Why Law Professors Write
Posted on June 06, 2009Dean Erwin Chemerinsky (UC Irvine) has an interesting article entitled, Why Write?, 107 Mich. L. Rev. 881 (2009). Here's the abstract: What is the purpose of legal scholarship? The foreword to the University of Michigan Law Review's book review issue...
Claim Ipsa Loquitur
Posted on June 03, 2009Plausibility 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...
Dooley on National Juries
Posted on June 03, 2009Laura 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...
Litigation Financing
Posted on June 02, 2009The 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...
Transnational Mass Torts: Lawyer Opposes Nigerian Settlement with Pfizer
Posted on May 29, 2009The 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...
The Drug and Device Guys on Prefiling Discovery
Posted on May 29, 2009Here'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...
Brunet on the Origins of Plausibility as a Pleadings Standard
Posted on May 28, 2009A 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...
Products Liability and the New Pleading Era
Posted on May 28, 2009The 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
Posted on May 26, 2009The 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...
New Blog with Occasional Mass Tort Posts
Posted on May 20, 2009George 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...
The Plausible Pleading Standard
Posted on May 20, 2009Civil 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...
Merck's New Journal
Posted on May 16, 2009Concurring 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...
Skadden Successfully Recruits John Beisner, Stephen Harburg, and Jessica Davidson Miller of O'Melveny
Posted on May 14, 2009According 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...
WLF's Richard Samp Discusses New D.C. Cir. Decision on Independent Contractors
Posted on May 14, 2009The 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...
Plaintiffs' Teflon Class Actions Against Dupont Don't Stick
Posted on May 14, 2009As 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...
Merck's International Litigation Strategy
Posted on May 13, 2009An 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...
An Empirical Assessment of Punitive Damages
Posted on May 12, 2009Theodore Eisenberg (Cornell), Michael Heise and Martin T. Wells have recently posted "Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court's Decision in Exxon Shipping Co. v. Baker" - available on SSRN. Here is the abstract: Exxon...
9/11 Statistical Discovery
Posted on May 06, 2009What's going on with the 9/11 "First Responder" cases these days? I just saw the following article in NYLJ - "Plan Implemented to Resolve Complex Suits in World Trade Center Cleanup." The special masters who are creating this plan are...
Weinstein: Some Pessimism About Aggregate Litigation
Posted on May 06, 2009Judge Weinstein has published a short essay on the administration of complex litigations in a new on-line publication of the Cardozo Law Review called De Novo. The essay, entitled "Preliminary Reflections on the Administration of Complex Litigations" describes a few...
Supreme Court Ruling Makes Government Recovery More Difficult in Toxic Torts
Posted on May 05, 2009In Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court ruled 8 to 1 to limit corporate liability under Superfund. Here's an except from Adam Liptak's article in the New York Times: The federal government had...
Cert Granted in Important Class Action Case
Posted on May 04, 2009The Supreme Court today granted certification in Shady Grove Orthopedic Assoc., P.A. v. Allstate Insurance Co. (docket no. 08-1008). This may be a case that decides the future of the much-maligned procedural rule - the money damages class action. The...
Justice Souter Retiring
Posted on May 01, 2009Justice David Souter plans to retire from the Supreme Court when the term ends in June, according to new accounts. In the field of mass torts, Justice Souter authored the majority opinion in Ortiz v. Fibreboard Corp., the 1999 decision...
Plaintiffs' Attorneys Feuding Over Fees
Posted on May 01, 2009Judge Faith Hochberg of the District of New Jersey urged plaintiffs' lawyers to cooperate and coordinate discovery rather than devolve into a feeding frenzy for attorneys' fees. The case isn't a mass tort; rather, it is a putative health insurance...
The Law of the Banana
Posted on April 27, 2009Los Angeles Superior Court Judge Victoria Chaney dismissed two tort cases against Dow Chemical and Dole as fraudulent. The suits alleged that chemicals manufactured by the defendants and used on banana plantations caused sterility. Law.com reports of the lawyers' misconduct...
Katrina Litigation Moves Forward
Posted on April 20, 2009The New York Times reports that a lawsuit by property owners against the US Army Corps of Engineers regarding the breaking of the levees during Hurricane Katrina begins today. Click this link to get to the article. The article notes...
Wall Street Journal on Provenge & the FDA
Posted on April 20, 2009Editorial in today's Wall Street Journal on the delay in approving prostate-cancer drug Provenge by the FDA -- Prostate Cancer and FDA Politics: Their first priority should be to save patients. Here's an excerpt: The larger question is why Provenge...
U.S. Homeowner Health Problems from Chinese Drywall
Posted on April 17, 2009Article in the Wall Street Journal -- Homeowner Problems With Chinese-Made Drywall Spread, by Michael Corkery. Here's an excerpt: Complaints about foul-smelling Chinese-made drywall that first emerged in a few dozen homes in Florida in January have spread to hundreds...
Second Wall Street Journal Editorial on Plaintiffs' Lawyers Hired for Contingency Fee by State of Pennsylvania
Posted on April 16, 2009Following last week's editorial, the Wall Street Journal expanded its discussion in today's editorial. Here's an excerpt: Our editorial last week on the state lawsuit racket has created a stir in Pennsylvania, where Governor Ed Rendell has finally had to...
Damage Compensation for Low Probability/High Damage Events
Posted on April 15, 2009Richard Lempert (Michigan) has posted an article entitled Low Probability/High Consequence Events: Dilemmas for Damage Compensation on bepress. Here is the abstract: This article was prepared for a Clifford Symposium which challenged paper writers to imagine how our system of...
Does Regulation = Litigation?
Posted on April 15, 2009A very intriguing analysis just posted on bepress calls into question whether litigation is a substitute for regulation. See Eric Helland and Jonathan Klick, The Relation Between Regulation and Class Actions: Evidence from the Insurance Industry, available here...
Scholarship on Damage Caps
Posted on April 15, 2009Catherine Sharkey (NYU) and Jonathan Klick (Penn) have posted an article entitled "What Drives the Passage of Damage Caps?" on SSRN. The article is available here. Here is the abstract: A number of states have passed caps on non-economic and...
The "Hair Club for Men" Theory for Regulating Food Safety
Posted on April 11, 2009Ian Ayers (Yale law) and Peter Siegelman (UConn Law) have posted a suggestion for regulating food safety: establish that the company CEO uses the product. In other words, "I'm not only the president, I'm also a client." See the idea...
Wall Street Journal on Plaintiffs' Lawyers Hired for Contingency Fee by State of Pennsylvania
Posted on April 08, 2009Editorial in the Wall Street Journal -- The State Lawsuit Racket: A case study in the politician-trial lawyer partnership. Here's an excerpt: State Attorneys General regularly hire private plaintiffs lawyers on a contingency-fee basis to prosecute cases...
Mark Lanier Expanding Plaintiffs' Tort Law Firm
Posted on April 07, 2009Article by Alison Frankel in AmLaw Litigation Daily -- Texas Torts Firm Says Business Is Booming, Expands Houston Office. The article has some interesting quotes from Mark Lanier about asbestos litigation. Here's an excerpt from the article: In asbestos, Lanier's...
Wall Street Journal Editorial on Silicosis Fraud Follow-Up
Posted on April 07, 2009Here's an excerpt from the Journal's editorial, The Silicosis Abdication: A scam that deserves as much scrutiny as Lerach and Scruggs: It is going on four years since a Texas judge blew the whistle on widespread silicosis fraud, exposing a...
Sheila Scheuerman on Statutory Damages and Class Actions
Posted on April 05, 2009Professor Sheila Scheuerman (Charleston; picture, left) has posted on SSRN her article, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, Mo. L. Rev. (forthcoming 2009). Here's the abstract: This article analyzes the due process problem that arises...
5th Circuit Permits "Learned Intermediary" Defense in Zyprexa
Posted on April 03, 2009Alison Frankel, of the American Lawyer, reports that the Fifth Circuit has given the green light to the "learned intermediary defense" in the Zyprexa product liability suits. The defense is based on the doctor (the learned intermediary) warning the patient...
"A Practical Solution to the Reference Class Problem"
Posted on April 01, 2009An article by Edward Cheng (Brooklyn Law) called "A Practical Solution to the Reference Class Problem" has just been posted on SSRN. The "reference class problem" is a key issue in mass tort cases. For example, say a judge wants...
Philip Morris Cert Dismissed as Improvidently Granted
Posted on March 31, 2009As per Scotusblog: The Court has released the opinion in Philip Morris USA, Inc. v. Williams (07-1216), on tobacco punitive damages. In a per curiam opinion, available here, the writ of certiorari is dismissed as improvidently granted. ADL
Klonoff, Herrmann, & Harrison on Making Class Actions Work: The Untapped Potential of the Internet
Posted on March 27, 2009Bob Klonoff (Lewis & Clark), Mark Herrmann (Jones Day) and Brad Harrison have posted their article, Making the Class Action Work: The Untapped Potential of the Internet, on SSRN. Here's their abstract: Over twenty years ago, the Supreme Court recognized...
En Banc Rehearing in Wal-Mart Class Certification
Posted on March 25, 2009Granted, the Wal-Mart class action isn't a mass tort, but the Ninth Circuit's previous decision that upheld certification of the largest class action to date bears significantly on class action law in general. In its original opinion, the Ninth Circuit...
Defense Verdict in Gelep Tobacco Case in Florida
Posted on March 24, 2009More as details unfold... Gelep is one of the post-Engle individual-plaintiff cases. UPDATE #1- Here's the press release from Altria on today's verdict in Gelep. For context, here's Altria's press release on the prior Hess verdict in Florida that went...
Split FDA into Separate Food Administration and Drug Administration?
Posted on March 22, 2009According to this article in today's L.A. Times, pharmaceutical companies are quietly pushing to break up the FDA into separate entitites, in hopes of speedier drug approvals. President Obama yesterday appointed a group to reassess the FDA, so there may...
Higbee Denies Class Cert for N.J. Vioxx Users
Posted on March 20, 2009Superior Court Judge Carol Higbee of New Jersey denied class certification to Vioxx users in Kleinman v. Merck & Co., Inc. Plaintiffs alleged that Merck violated New Jersey's Consumer Fraud Act by deceptive marketing practices. The proposed class definition included...
Albany Law School Symposium on Off-Label Prescription of Drugs
Posted on March 20, 2009As I previously briefly noted, Albany Law School is hosting on Friday, March 27 a symposium entitled, Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label. I will be speaking about liability from off-label promotion of drugs...
Managing Mass Tort MDLs
Posted on March 18, 2009A new article on managing mass tort multidistrict litigations -- Charles Silver and Geoffrey Miller, The Quasi-Class Action Method of Managing Multidistrict Litigation -- has just been posted on SSRN. If any mass tort lawyers reading this blog have a...
Margaret Hamburg Picked to Head FDA
Posted on March 17, 2009Article in the Wall Street Journal -- Hamburg, Pick for FDA, Faces an Agency in Crisis, by Alicia Mundy. Here's an excerpt: President Barack Obama's choice to lead the Food and Drug Administration faces several crises at the beginning of...
William Rubenstein Joins Mass Tort Litigation Blog as Co-Editor
Posted on March 15, 2009Welcome to Professor William Rubenstein (picture, left) of Harvard Law School, who joins the Mass Tort Litigation Blog as co-editor! We're delighted he's joined us -- welcome aboard! BGS
Burch on Litigating Groups
Posted on March 14, 2009I've just posted a draft of my article, "Litigating Groups," on SSRN. It is the beginning of a new approach to nonclass aggregation, one that is based principally on group cooperation and social norms. Although it's principally a theoretical piece,...
13 Deaths Tied to Medtronic Heart Device
Posted on March 14, 2009Despite reports circulating as early as 2004 about problems with the Sprint Fidelis cable, Medtronic's medical device is still in widespread use. Barry Meier of the New York Times reports that along with roughly 13 fatalities, the FDA has received...
Richard Nagareda on The Law of Class Actions and Other Aggregate Litigation
Posted on March 12, 2009Professor Richard Nagareda (Vanderbilt) has published The Law of Class Actions and Other Aggregate Litigation (Foundation Press 2009). Here's the book description from Foundation Press: Nagareda?s new casebook is the first to situate as a cohesive whole the ways in...
DePaul Symposium on Rising Stars: A New Generation of Scholars Looks at Civil Justice
Posted on March 11, 2009DePaul University College of Law is hosting the 15th Annual Clifford Symposium on Tort Law and Social Policy. This year's topic is Rising Stars: A New Generation of Scholars Looks at Civil Justice. The symposium will take place on Thursday,...
Panel on New Book, Regulation by Litigation, by Andrew Moriss, Bruce Yandle, and Andrew Dorchak
Posted on March 11, 2009The Federalist Society is hosting a panel on the new book, Regulation by Litigation (Yale Univ. Press 2008), co-authored by Professor Andrew Morriss (Illinois), Professor Bruce Yandle (Clemson, Economics Dep't), and Andrew Dorchak (Case Western, Law Library)...
Klonoff, Herrmann, and Harrison on Using the Internet to Make Class Actions Work
Posted on March 09, 2009Dean Robert Klonoff (Lewis & Clark), Mark Herrmann (Jones Day), and Bradley Harrison (Jones Day) have published Making Class Actions Work: The Untapped Potential of the Internet, 69 U. Pitt. L. Rev. 727 (2008). BGS
Crowd Modeling
Posted on March 08, 2009The Economist has an article, Model Behaviour, about the use of increasingly sophisticated computer technology to model the interaction of large numbers of individuals. While the technology has been used for graphics in movies like Lord of the Rings, it's...
Medical Device Safety Act of 2009
Posted on March 06, 2009After the Supreme Court rejected Wyeth's preemption claim in Wyeth v. Levine, Congress took steps to reverse the Supreme Court's earlier preemption decision, Riegel v. Medtronic, Inc. House representatives Frank Pallone, Jr. (D-NJ) and Henry Waxman (D-CA) introduced the Medical...
Symposium on "Against Settlement"
Posted on February 23, 2009The 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...
Eric Lasker on Wyeth v. Levine Oral Argument
Posted on February 22, 2009Eric 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
Posted on February 19, 2009Litigation 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...
En Banc Rehearing in Dukes v. Wal-Mart
Posted on February 19, 2009On 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...
$8 Million Verdict in First Post-Engle Florida Tobacco Trial
Posted on February 19, 2009A 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...
Wake Forest Symposium on the Third Restatement of Torts
Posted on February 17, 2009Wake 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
Posted on February 11, 2009The 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...
Albany Law School Symposium on Off-Label Prescription of Drugs
Posted on February 11, 2009Albany 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...
Peanut Company Officials Take 5th Amendment Self-Incrimination Protection Before Congress
Posted on February 11, 2009Article 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...
Should Chief Justice Roberts Excuse Himself from Wyeth?
Posted on February 10, 2009Tony Mauro, from the Legal Times, points out that Chief Justice John Roberts owns Pfizer stock and questions whether Roberts should recuse himself from the Wyeth case now that Pfizer is acquiring Wyeth. Here's an excerpt:Chief Justice John Roberts Jr...
Beijing Hotel Fire
Posted on February 09, 2009A fire destroyed the Mandarin Oriental Hotel in Beijing today. According to news accounts (here and here), the fire occurred in the final hours of the lunar new year celebration, as fireworks lit up the Beijing sky. Thankfully, the hotel...
Richard Epstein and Rick Hills Debate When FDA Regulation Should Preempt State Tort Liability
Posted on February 08, 2009Professor John McGinnis (Northwestern) is moderator for a January 9, 2009 Federalist Society debate between Professors Richard Epstein (Chicago) and Rick Hills (NYU) on When Should FDA Regulation Preempt State Tort Liability. I attended, enjoyed the debate, and asked a...
Gardasil's Adverse Effects
Posted on February 06, 2009A report on CBS this evening interviewed several young girls and their families who reported serious side effects from taking Merck's Gardasil. The effects ranged from seizures, to heart problems, to death. The CDC's report on side effects indicates that:...
Southwestern University Law Review Asbestos Symposium Issue
Posted on February 05, 2009The Southwestern University Law Review has published its issue in connection with the symposium, Perspectives on Asbestos Litigation, which Professor Alan Calnan and I co-chaired here at Southwestern Law School on Friday, January 18, 2008. Here are the articles contained...
Will Pfizer's Purchase of Wyeth Affect SCOTUS' Preemption Ruling This Term?
Posted on February 05, 2009According 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...
The Hartford Files a Declaratory Judgment Action Against Peanut Corp. of America
Posted on February 04, 2009Illustrating 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...
Jonathan Macey and Geoffrey Miller on Judicial Review of Class Action Settlements
Posted on February 04, 2009Professors 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...
Bruce Mandel and James Kline on Ohio Supreme Court's Greater Deference to Legislative Tort Reform
Posted on February 04, 2009Bruce 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
Posted on February 04, 2009So reports Andrew Longstreth of American Lawyer. BGS
Class Actions 101
Posted on February 03, 2009Nice, 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
Posted on February 01, 2009Jackson 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
Posted on February 01, 2009Dean 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...
Pennsylvania Supreme Court Considering Appropriateness of State's Hiring of Contingency Fee Lawyers
Posted on February 01, 2009...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
Posted on February 01, 2009The 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
Posted on February 01, 2009Point 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
Posted on January 31, 2009In 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
Posted on January 29, 2009Interesting 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,...
Investigation into FDA's Medical Device Approval
Posted on January 28, 2009The 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...
WLF program on MDL for mass torts
Posted on January 27, 2009The 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...
The Causation Problem in Chemical Exposure Cases
Posted on January 26, 2009Whereas some toxic substances have signature diseases (asbestos and tobacco come to mind) in other cases causation is difficult for impossible to prove, creating serious legal problems for workers and others exposed to the substances seeking compensation through the tort...
Pfizer to acquire Wyeth
Posted on January 26, 2009Pfizer and Wyeth today announced that Pfizer will purchase Wyeth for $68 billion, as anticipated. The deal, as today's NY Times article notes, stands out in the current financial climate: The deal not only create a pharmaceutical behemoth but would...
Ethics Rules May be Tightened for Drug and Medical Device Makers
Posted on January 24, 2009The Physician Payments Sunshine Act, a bill introduced in the Senate, is a parallel effort to that in the House to require drug and device makers to report all financial links with doctors on a federal website. Here's an excerpt...
Pfizer/Wyeth Consolidation?
Posted on January 24, 2009Today's New York Times reports that Pfizer is close to purchaing Wyeth for more than $60 billion. Pfizer is already the world's largest drug company with revenues of $48 billion in 2007. Here's an excerpt: Still, because much of Pfizer...
Peanut Plant Closes
Posted on January 24, 2009The Associated Press reports that the peanut plant in Blakely, Georgia, The Peanut Corp. of America, has closed its doors after salmonella investigations. To date, there are reports of 486 people becoming sick and six deaths. ECB
New Mass Tort Blog: Jackson on Consumer Class Actions and Mass Torts
Posted on January 23, 2009Russell Jackson (Skadden) has started a blog, Jackson on Consumer Class Actions and Mass Torts. Welcome to the blogosphere! BGS
Increased Risk for Space Workers Is Not Compensable Injury
Posted on January 23, 2009BNA reports the dismissal of a suit by space center workers arising out of exposure to beryllium-containing products was upheld by the 5th Circuit. The court held that the workers were only able to show that the exposure resulted in...
Vietnam Vet Class Action Filed Against CIA
Posted on January 23, 2009BNA Class Action Litigation Report reports that a Vietnam veterans group has filed a class action lawsuit in the Northern District of California against the CIA seeking compensation for human experimentation conducted in the 1970s. The suit is Vietnam Veterans...
Effects of Tort Reform
Posted on January 21, 2009Patricia Born (California State University), Kip Viscusi (Vanderbilt), and Tom Baker (Penn) have posted an article titled The Effects of Tort Reform on Medical Malpractice Insurers' Ultimate Losses that might be of general interest to tort aficionados...
Peanut Butter Lawsuits Begin
Posted on January 20, 2009As posted on the Marler Blog, the first lawsuit arising out of the recent nation-wide outbreak of Salmonella in Peanut Butter has been filed in Georgia. The post is here. Marler reports that there are more than 485 infected people...
GAO Criticizes FDA
Posted on January 16, 2009The New York Times reports that the Government Accountability Office recently criticized the Food and Drug Administration's device approval process. Here's an excerpt: Created in 1976, the F.D.A.?s process for approving devices divides the products into three classes and three...
Today's $1.4 billion Zyprexa deal
Posted on January 15, 2009As expected, the Justice Department and Eli Lilly today announced that Lilly will pay $1.4 billion in a criminal plea deal and civil settlement. The deal includes $615 million as a criminal penalty and $800 million to settle civil claims...
Zyprexa -- Possible Settlement of Criminal and Civil Claims
Posted on January 14, 2009Eli Lilly Co. is expected to pay $1.4 billion to settle the government's criminal and civil claims against the company in connection with its marketing of Zyprexa, according to this article in the New York Times, which notes the record-breaking...
Black Robes, White Coats
Posted on January 11, 2009Though focused on criminal settings, the recently published book Black Robes, White Coats, by Professor Rebecca C. Harris (Washington & Lee, Dep't of Politics), looks interesting. Here's a summary: Scientific evidence is commonplace in today?s criminal trials...
Shapo on Experimenting with the Consumer
Posted on January 08, 2009Marshall S. Shapo (Northwestern) has posted an overview of his latest book, Experimenting with the Consumer: The Mass Testing of Risky Products on the American Public on SSRN. The book is available for purchase through Greenwood Publishing Group. Here's the...
Bake on Liability Insurance at the Tort-Crime Boundary
Posted on January 05, 2009Tom Baker (Penn) has a new article posted on SSRN titled Liability Insurance at the Tort-Crime Boundary. While it doesn't directly discuss mass torts, its implications might be of interest to readers. Here's the abstract: This essay explores how liability...
TVA-Spill Sludge Has Arsenic, But Water Tests Fine
Posted on January 03, 2009Article on cnn.com -- Tennessee sludge contains elevated levels of arsenic, by Jim Kavanagh. Here's an excerpt: The drinking water in the area of last month's coal-sludge spill in eastern Tennessee is safe, but elevated levels of arsenic have been...
Guilty Plea Entered in Chinese Tainted Milk Case
Posted on January 01, 2009The New York Times reports this morning that Tian Wenhua, the former chairwoman of one of China's largest dairy producers, pleaded guilty to selling baby formula tainted with melamine and to knowing about the problem months before reporting it. Here's...
Class Action Status Rejected for Katrina Generated FEMA Trailer Litigation
Posted on December 30, 2008Judge Engelhardt denied class certification for litigants claiming that FEMA trailers exposed them to toxic fumes. Plaintiffs sued the federal government and several trailer manufacturers over elevated formaldehyde levels in the trailers housing hurricane victims...
TVA Sludge Spill Results in High Levels of Arsenic & Heavy Metals in Two Tennessee Rivers
Posted on December 30, 2008Article in on cnn.com -- EPA: Rivers high in arsenic, heavy metals after sludge spill. Here's an excerpt: The Environmental Protection Agency has found high levels of arsenic and heavy metals in two rivers in central Tennessee that are near...
Drug Companies and Doctors
Posted on December 29, 2008The latest New York Review of Books (Jan. 15, 2009 issue) contains an interesting article by Marcia Angell, former Editor-in-Chief of the New England Journal of Medicine and author of "The Truth About the Drug Companies: How They Deceive Us...
Happy Holidays!
Posted on December 26, 2008to all our Mass Tort Litigation Blog readers, and best wishes for a tort-free New Year! BGS
Lawyer's Conviction Affirmed for Fen-Phen Settlement Fraud
Posted on December 26, 2008Article in the Clarion Ledger -- Fen-Phen conviction upheld: Vicksburg lawyer bilked company out of $6.7M, by Jerry Mitchell. (H/t to Pharmalot.) Here's an excerpt: The 5th U.S. Circuit Court of Appeals on Monday upheld the conviction of Vicksburg lawyer...
Mark Lanier Addresses Harvard Torts Class
Posted on December 26, 2008Mark Lanier, a prominent mass tort plaintiffs' lawyer noted in particular for his Vioxx litigation success, addressed Professor Jon Hanson's Torts class at Harvard. (H/t to Torts Prof Blog.) Video is available here. BGS
Ongoing Discussion on Loser-Pays Lawsuit Financing
Posted on December 24, 2008An article in the Wall Street Journal -- The Debate Over Who Pays Fees When Litigants Mount Attacks, by Dan Slater -- chronicles the increasing discussion over loser-pays lawsuit financing. (H/t Torts Prof Blog.) Professor Richard Nagareda (Vanderbilt) is quoted...
Mass Tort Litigation & Preemption, Chinese-Style
Posted on December 24, 2008Basically, it appears you sue the government for negligence in school-building construction that contributed to thousands of nationwide school-children earthquake deaths, and they just tell you to go away -- with the "judge t[elling] parents' representatives that government internal documents...
Martin Redish on Wholesale Justice
Posted on December 24, 2008Martin Redish (Northwestern) has a new book on class actions titled Wholesale Justice that will be published in May with the Stanford University Press. Here's the description: In recent years, much political and legal debate has centered on the class...
FDA to Reconsider Safety of Plastic Bottles
Posted on December 23, 2008From tomorrow's New York Times. The FDA has decided to reconsider the dangers posed by bisphenol-A (BPA), a chemical found in plastic bottles, the linings of metal cans, and other often used household products after an FDA advisory committee on...
Court Exposes Questionable Asbestos Expert Diagnoses
Posted on December 23, 2008Echoing the shot heard round the world -- Judge Jack's opinion exposing systemic misdiagnoses by plaintiffs' experts in the silica litigation -- a Michigan state judge has now found a similar pattern of plaintiff-expert misdiagnoses in the asbestos litigation...
Mel Weiss Disbarred
Posted on December 22, 2008Here's an excerpt from In re Weiss, 2008 N.Y. Slip. Op. 09935 (App. Div. 1st Dep't Dec. 18, 2008) (h/t Overlawyered): Specifically, respondent admitted that beginning around the 1970's and continuing at least into 2005, he and other individuals at...
Winston Strawn's Bradley Lerman to Become Pfizer's Senior VP of Litigation
Posted on December 22, 2008As reported by the Wall Street Journal Law Blog and on Yahoo Finance. BGS
Legal Moves Post Altria Preemption Ruling
Posted on December 22, 2008Article in the Wall Street Journal -- Altria Ruling Ignites Legal Moves, by Brent Kendall. Here's an excerpt: The Supreme Court's ruling last week allowing smokers in Maine to sue Altria Group Inc.'s Philip Morris unit for allegedly deceptive advertising...
Investigational Devices and Preemption
Posted on December 21, 2008Drug & Device Law discusses recent decisions on this issue after Riegel. BGS
Welcome to Constitutional Law Prof Blog
Posted on December 20, 2008A belated welcome to Constitutional Law Prof Blog, a recent member of the Law Prof Blogs Network. The blog is edited by Professors Steven Schwinn (John Marshall), Ruthann Robinson (CUNY), and Nareissa Smith (Florida Coastal). Here's a recent preemption post...
Personal Injury Blog Roundup
Posted on December 20, 2008Extensive roundup of personal-injury blog posts on Torts Prof Blog. BGS
Lars Noah on Duty of Product Stewardship
Posted on December 18, 2008Professor Lars Noah (Florida; picture left) has posted on SSRN his article, Platitudes About 'Product Stewardship' in Torts: Continuing Drug Research and Education, Mich. Telecomm. Tech. L. Rev. (forthcoming 2009). (H/t Torts Prof Solum/Legal Theory...
Altria v. Good: First Mass Tort Ruling of the Obama Era?
Posted on December 16, 2008Yesterday, the Supreme Court ruled in Altria Group v. Good that the federal cigarette labeling statute does not preempt claims that tobacco companies violated state consumer protection laws in their marketing of light cigarettes. Here's the Supreme Court's opinion...
Analysis of the Latest Williams Tobacco Appeal to the Supreme Court
Posted on December 15, 2008Adam Liptak of the New York Times breaks down the issues in Justices Look Anew at Case in Which Oregon Court Has Twice Rebuffed Them. Here's an excerpt: The United States Supreme Court takes its name seriously, and it expects...
Tom Baker on Liability Insurance at the Tort-Crime Boundary
Posted on December 15, 2008Professor Tom Baker (University of Pennsylvania) has posted on NELLCO his manuscript, Liability Insurance at the Tort-Crime Boundary. Here's the abstract: This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two...
Supreme Court to Hear Asbestos-Related Suit
Posted on December 15, 2008The Supreme Court granted cert today on whether a federal bankruptcy court can block private suits seeking damages for injury and death caused by asbestos. The consolidated cases are Travelers Indemnity v. Bailey, et al. (08-295) and Common Law Settlement...
Samuel Issacharoff on Private Claims & Aggregate Rights
Posted on December 15, 2008Professor Samuel Issacharoff (NYU) has posted on NELLCO his manuscript, Private Claims, Aggregate Rights, which is forthcoming in the Supreme Court Review. Here's the abstract: In an odd set of procedure opinions last Term, the Supreme Court found itself confronted...
The Mass Tort Reward: Miley Cyrus
Posted on December 15, 2008E!online reports that Mark Lanier, of Vioxx litigation fame, hired Miley Cyrus to play his firm's holiday party, which included 7,000 guests. No word on whether Cyrus's father, country singer Billy Ray Cyrus, lead the Vioxx plaintiffs in a chorus...
Supreme Court Allows Light Cigarette Case
Posted on December 15, 2008Wow. The Supreme Court today allowed smokers to sue tobacco companies under state consumer protection statutes for deceptive promotion of "light" and "low tar" cigarettes. In Altria Group v. Good, the Court rejected the defendants' argument that federal law on...
CAFA's Local Class Action Exception
Posted on December 13, 2008BNA reports that a class action for medical monitoring and other state law claims concerning mold was remanded to state court under the exception set forth in 28 U.S.C. 1332(d)(3) which provides that if the primary defendant and between 1/3...
Possible Candidates to Head FDA
Posted on December 12, 2008Article in the Wall Street Journal -- Critics Top Shortlist for FDA Head, by Alicia Mundy. Here's an excerpt: A doctor who once denounced Pfizer Inc. for holding a marketing event in a pool hall is leading President-elect Barack Obama's...
Moller on CAFA and Diversity Jurisdiction
Posted on December 11, 2008Mark Moller, of DePaul University College of Law, has posted "A New Look at the Original Meaning of the Diversity Clause" on SSRN. Here's the abstract: The 2005 Class Action Fairness Act, which allows federal courts to exercise diversity jurisdiction...
Metrolink Chief's Conduct Before and After Crash
Posted on December 11, 2008Article in the L.A. Times -- Crash thrusts Metrolink chief into the unwelcome limelight, by Jeff Gottlieb. Here's an excerpt: He is one of those well-paid technocrats who makes sure things run smoothly, someone few people have heard of but...
Monestier on Canadian Class Actions
Posted on December 09, 2008Tanya Monestier of Queen's University has posted her article, Personal Jurisdiction Over Non-Resident Plaintiffs in Multi-Jurisdictional Class Actions: Have We Gone Down the Wrong Road?, on SSRN. Here's the abstract: Canadian courts have recently been struggling with the question of...
Resnik on CAFA
Posted on December 09, 2008Judith Resnik recently posted her article, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: 'The Political Safeguards' of Aggregate Translocal Actions, on SSRN. It recently appeared in the Pennsylvania Law Review...
Lorillard Tobacco Company on Liberty in America -- Including Liberty to Re-Start Litigation Against Itself?
Posted on December 09, 2008Interesting paid-advertisement op-ed by Lorillard Tobacco Company in the Opinion section of today's Wall Street Journal. Unfortunately, I can't find the ad online, so I'll have to type from my paper copy. The headline is "No Choice, No Freedom." Lorillard...
Paul Howard & Marie Gryphon on FDA Preemption of Tort Lawsuits
Posted on December 07, 2008Paul Howard and Marie Gryphon, both of the Manhattan Institute, wrote an editorial, Manhattan Moment: The right prescription for drug safety, in the Examiner. (H/t to Point of Law.) BGS
Jones Day's Robert Mittelstaedt and Chevron Case Involving Nigerian Plaintiffs Under Alien Tort Claims Act
Posted on December 07, 2008AmLaw Daily profiles the Chevron jury verdict win obtained by Robert Mittelstaedt. (H/t to Point of Law.) BGS
FJC Interim Report on CAFA Effect
Posted on December 06, 2008The Federal Judicial Center has released Impact of the Class Action Fairness Act on the Federal Courts: Preliminary Findings from Phase Two's Pre-CAFA Sample of Diversity Class Actions. Download cafa1108.pdf (H/t to Civil Procedure Prof Blog.) BGS
Exxon Makes First Payments to Valdez Spill Plaintiffs
Posted on December 06, 2008Article in the L.A. Times -- Exxon Valdez victims receive first payments, by Kim Murphy. (H/t to Torts Prof Blog.) Here's an excerpt: Reporting from Cordova, Alaska -- A little less than 20 years ago, Mike Webber was king of...
Effect of Expected or Pending FDA Preemption Legislation on Litigation
Posted on December 06, 2008Beck/Herrmann at Drug and Device Law briefly reject the litigation relevance of legislation until it's passed. BGS
Varying Congressional Views on New FDA Head
Posted on December 05, 2008Article in the Wall Street Journal -- Lawmakers Divided Over Next FDA Head, Fixing Safety Issues, by Alicia Mundy. Here's an excerpt: A top House Democrat is asking President-elect Barack Obama to avoid naming any current officials of Food and...
Williams Tobacco Case Back at U.S. Supreme Court
Posted on December 04, 2008Article on Bloomberg.com -- Altria Punitive-Damages Case Divides U.S. High Court, by Greg Stohr. Here's an excerpt: A divided U.S. Supreme Court wrestled with a $79.5 million award against Altria Group Inc.?s Philip Morris USA unit in an Oregon smoker...
W.R. Grace's Asbestos Settlement
Posted on December 04, 2008The Associated Press reports that W.R. Grace has agreed to pay up to $140 million to settle the Zonolite attic insulation asbestos cases. The article is available here. ECB
Beck/Herrmann & Beisner on New ALI Draft Principles of Aggregate Litigation
Posted on December 04, 2008Beck/Hermann of Drug and Device Law summarize a letter from John Beisner (O'Melveny) commenting on the new ALI Draft Principles of Aggregate Litigation. Beisner's objections to class actions are all well made. I would add that pinning the claims of...
Marie Gryphon on Loser Pays
Posted on December 04, 2008Marie Gryphon, Senior Fellow of the Manhattan Institute, has published a report entitled, Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System. (H/t to Point of Law.) BGS
Gardasil Litigation?
Posted on December 01, 2008Reports and lawsuits are beginning to accrue regarding Merck's vaccine for cervical cancer, Gardasil. Merck has been lobbying states to mandate the vaccine for middle-school aged girls. Several academics have argued against making the vaccine mandatory in a recent issue...
Collective Redress in Europe
Posted on November 30, 2008The Commission of the European Communities has just released its latest Green Paper on Consumer Collective Redress. It cites several current problems for consumers in Europe, one of which is a weak enforcement framework: 15. As a consequence of the...
Thanksgiving Humor - The Next Mass Tort Arising out of a Defective Product?
Posted on November 26, 2008Click here to listen to a brief, quite funny, lawyer joke. ADL
Erichson Cited in 7th Circuit Opinion
Posted on November 25, 2008Our own Howard Erichson's article Mass Tort Litigation and Inquisitorial Justice was cited in a forum non conveniens opinion by Judge Posner on October 28, 2008. See U.S.O. Corp. v. Mizuho Holding Co., --- F.3d ---, 2008 WL 4709846 (7th...
Avandia associated with increased mortality
Posted on November 24, 2008The New York Times reports today that a new study published in The Archives of Internal Medicine found that Avandia (the drug also known as rosiglitazone) was linked to a higher rate of mortality than a similar drug sold under...
Parchomovsky & Stein on Torts and Innovation
Posted on November 14, 2008Gideon Parchomovsky (Penn) and Alex Stein (Cardozo) have recently posted "Torts and Innovation" on NELLCO. The article will come out shortly in Michigan Law Review (107 Mich. L. Rev. 205 (2008)). You can find the link here. Here is the...
Brazil Vacates Tobacco Award
Posted on November 14, 2008A press release by Souza Cruz, a subsidiary of British American Tobacco, indicates that a Sao Paulo Court of Appeals vacated an award against Souza Cruz and Philip Morris Brasil, a subsidiary of Philip Morris International. Here's an excerpt: The...
Issacharoff & Miller on Aggregate Litigation in Europe
Posted on November 11, 2008Samuel Issacharoff (NYU) and Geoffrey Miller (NYU) have posted "Will Aggregate Litigation Come to Europe?" on SSRN. Here is the abstract: This paper considers Europe's experiment with aggregate litigation in light of American experience. European thinking on the topic appears...
WSJ on Asbestos Screenings in Michigan
Posted on November 10, 2008The Wall Street Journal commented today in an editorial on problems involved with asbestos screenings involving a particular doctor in Michigan State Court. Here's an excerpt from Michigan Malpractice: One reason we know about the great silicosis legal scam is...
FDA Preemption of State Pharmaceutical Suits
Posted on November 10, 2008Very interesting article in the ABA Journal -- The Pre-emption Prescription, by Terry Carter. The FDA has been increasingly moving to pre-empt state suits based on its approval of pharmaceutical labeling. I'm troubled at the prospect of a large, unwieldy...
Second Circuit Reinstates Bhopal Disaster Case Based on Water Pollution
Posted on November 05, 2008Article 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...
News from Wyeth v. Levine's Oral Argument
Posted on November 04, 2008Legal 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...
Wyeth v. Levine Argument Was Heard Monday
Posted on November 02, 2008Oral 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...
Libya Pays $1.5 Billion for Compensation of Victims of Pan Am 103 Terror Attack
Posted on October 31, 2008Article 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...
Mass Torts In China
Posted on October 31, 2008For our readers interested in the recent spate of mass torts in China: When Calamity Strikes, Who Should Pay?
Fred Baron, 1947-2008
Posted on October 31, 2008Fred 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...
Issacharoff on How Last Term's SCOTUS Cases Fit Together
Posted on October 31, 2008Samuel 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,...
Drug and Medical Device Litigation Conference
Posted on October 30, 2008American 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...
Asbestos Litigation Conference in San Antonio
Posted on October 30, 2008ALI-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,...
Secret Settlements in Mass Tort Cases
Posted on October 30, 2008James 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...
U.S. Supreme Court to Hear Pharmaceutical Preemption Case
Posted on October 27, 2008Article 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...
Lawyers Involved in Kentucky Fen-Phen Settlement Disbarred
Posted on October 27, 2008Brett 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
Posted on October 24, 2008Trista 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,...
Arthur Miller to Join Milberg as Special Counsel
Posted on October 23, 2008The 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...
Andrew Morriss on Altria Group v. Good
Posted on October 21, 2008Professor 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
Kenneth Fineberg to Speak at Cardozo Law
Posted on October 20, 2008On Wednesday October 29 at 6:00 PM Cardozo Law School in New York City is hosting a public lecture by Kenneth Fineberg. Kenneth R. Feinberg, Special Master of the Federal September 11th Victim Compensation Fund of 2001 and Managing Partner...
Interested in Food Poisoning?
Posted on October 20, 2008Bill Marler, a leading plaintiff-side attorney specializing in food poisoning litigation has this fascinating blog providing commentary about his work and related subjects: http://www.marlerblog.com/ I saw him speak at the recent Class Actions/Mass Tort symposium put on by the Louisiana...
Louisiana State Bar Association Mass Tort Symposium
Posted on October 20, 2008Last Friday (October 19) I spoke at the Louisiana State Bar Association 8th Annual Class Action/Mass Tort Symposium. There were many interesting local, out of state and nationally recognized lawyers from this very active mass tort bar and the presentations...
Query on Message Boards for Group Litigation
Posted on October 17, 2008While doing research for the successor to my piece on Procedural Justice in Nonclass Aggregation, I came across a comment to a Wall Street Journal article on Vioxx litigation that referred me to a member's only Yahoo! group discussing Merck's...
Anderson on Defendant's Incentives for Confidential Mass Tort Settlements
Posted on October 17, 2008James Anderson of RAND has posted his latest working paper titled "Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy." Here's the abstract: Settlement agreements that require a plaintiff not to disclose or publicize any...
Antony Klapper on Causation in Toxic Tort Cases
Posted on October 15, 2008The Washington Legal Foundation has published a Contemporary Legal Note, Causation In Court: Working Principles For Toxic Tort Cases, by Antony Klapper (Reed Smith; picture, left). BGS
Putting Lives Back Together After the Metrolink Crash
Posted on October 15, 2008The Ventura County Star has an article, Oak Park man focuses on the positive after surviving Metrolink crash: Though seriously hurt, he says he's 'fortunate to have survived,' by Kitty Dill. Here's an excerpt: Michael R. McReynolds considers himself lucky...
D.C. Circuit Critical of RICO Expansion
Posted on October 15, 2008Mike Scarcella has an article today in the Legal Times that provides the latest report on Big Tobacco's oral argument before the D.C. Circuit. Here's an excerpt: Sentelle and Tatel -- who dominated the nearly three hours worth of argument,...
Vioxx Litigation Update
Posted on October 14, 2008The National Law Journal reported last week on the Vioxx litigation in an article titled "Persistence Pays in Vioxx Litigation." (Oct. 6, 2008 at S3). It quoted Tom Girardi, who filed the first Vioxx case, as noting that the lesson...
J&J Pays $68.7 Million to Settle Hundreds of Orthro-Evra Cases
Posted on October 13, 2008Article in AmLaw Daily -- Ortho Evra Settlements Quicken Ahead of SCOTUS Preemption Review, by Brian Baxter. Here's an excerpt: Bloomberg reported on Friday that Johnson & Johnson has paid roughly $68.7 million to settle hundreds of lawsuits filed by...
Philip Morris Brings First Amendment Challenge Against San Francisco Ban on Selling Cigarettes in Drug Stores
Posted on October 13, 2008Article in AmLaw Daily -- Munger Reps Philip Morris in Unprecedented Tobacco Sales Ban Case, by Zach Lowe. Here's an excerpt: In 2001 the U.S. Supreme Court upheld the right of tobacco companies to advertise in stores over the objections...
12th Annual ABA National Institute on Class Actions
Posted on October 09, 2008The 12th Annual ABA National Institute on Class Actions, which is being co-sponsored by the Mass Torts Committee, will take place on November 7, 2008 in New York City at the Marriott Downtown Hotel. Speakers include Judges Fred Biery (W.D....
Lilly Settles Zyprexa Marketing Claims with States for $62 Million
Posted on October 08, 2008Article in the New York Times -- 33 States to Get $62 Million in Zyprexa Case Settlement, by Alex Berenson. Here's an excerpt: Eli Lilly has agreed to pay $62 million to 33 states to settle claims that it improperly...
Mark Geistfeld on Tort Law
Posted on October 08, 2008Professor Mark Geistfeld (NYU; picture left) has a new book, Tort Law: The Essentials (Aspen 2008). BGS
Procedural Justice in Nonclass Aggregation
Posted on October 07, 2008I've just posted my most recent paper, Procedural Justice in Nonclass Aggregation, on SSRN. Here's the abstract: Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions...
SCOTUS Hears Oral Argument in Altria Group v. Good
Posted on October 06, 2008The Supreme Court of the United States today heard oral argument in Altria Group v. Good, a preemption case concerning light cigarettes. Here's an excerpt from an article on cnn.com: After turning away those cases and dozens of others that...
More on the Altria v. Good Oral Argument
Posted on October 06, 2008An interesting analysis here on Scotusblog. The official transcript is available here. Some highlights of the Scotusblog analysis, by Lyle Denniston: The government sided with the plaintiffs on the implied preemption quesiton, but only on that question...
Impermissible Client Solicitation After Metrolink Crash in L.A.
Posted on October 05, 2008Article in the L.A. Times -- Lawyers swoop in after the Metrolink crash, looking for clients: State bar officials cite possible professional sanctions, but the aggressive attorneys note that time is limited and the stakes are expected to be very...
FDA Says Small Amount of Melamine Not Harmful to Adults
Posted on October 05, 2008Article on cnn.com -- FDA: Tiny amount of melamine not harmful to adults. Here's an excerpt: Eating a tiny bit of a melamine, the chemical responsible for a global food safety scare, is not harmful except when it's in baby...
Cadbury Recalls Candy Because of Melamine Contamination
Posted on October 05, 2008Article on cnn.com -- 'High level of melamine' in two Cadbury products. Here's an excerpt: Hong Kong authorities Sunday announced that two recalled candy products made by British confectioner Cadbury had high levels of melamine. The industrial chemical has recently...
Markel on Punitive Damages
Posted on October 03, 2008Dan Markel (Florida State) has two new articles that may be of interest: "How Should Punitive Damages Work?" and Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction. Here is the abstract of the first piece: What are punitive...
Higher Class Certification Standards in the Second Circuit
Posted on October 03, 2008Yesterday's New York Law Journal had an article detailing the higher threshold for class certification in the Second Circuit. Among the Second Circuit cases profiled were the 2006 In re IPO Securities Litigation decision and, more recently McLaughlin v...
Tom Cornford's Towards a Public Law of Tort
Posted on October 01, 2008Professor Tom Cornford (Oxford) has published Towards a Public Law of Tort (2008). Here's the description: Presenting a new approach to the problem of public authority liability, this volume provides a theoretical foundation in the form of principles of administrative...
Magdalena Tulibacka on Product Liability Law in Transition
Posted on October 01, 2008In 2009, Professor Magdalena Tulibacka (Oxford) will publish Product Liability Law in Transition: A Central European Perspective (Ashgate Publishing). Here's the description: This volume examines the evolution of Central European product liability regimes, with particular reference to the effect of...
Unilever Recalls Lipton Milk Tea After Finding Melamine
Posted on September 30, 2008Article on cnn.com -- Manufacturing giant recalls melamine tainted tea. Here's an excerpt: Unilever is recalling four batches of Lipton Milk Tea sold in Hong Kong and Macau after finding traces of the chemical melamine in the product, the company...
Suffolk Law School Conference on Successful Strategies for Jury Trials
Posted on September 30, 2008On Friday, October 24, 2008, Suffolk Law School will host a conference, Successful Strategies for Jury Trials. Speakers include Professors George Conk (Fordham), Valerie Hans (Cornell), Michael Rustad (Suffolk), Linda Sandstrom Simard (Suffolk), Gabriel Teninbaum (Suffolk), and Neil Vidmar (Duke)...
Drug and Device Law on Levine
Posted on September 23, 2008Beck and Hermann have posted a link to and summary of the defendant's reply brief in Wyeth v. Levine. Click here for the post. ADL
Daubert Hearings at the Certification Stage
Posted on September 23, 2008From the ABA Litigation Section news report, via Federal Civil Practice Bulletin: In what appears to be part of a trend across the country, a federal trial court in West Virginia has ordered a full, evidentiary Daubert hearing as part...
Duke Toxicology Conference
Posted on September 22, 2008Duke University is hosting a conference this Friday, Sept. 26, 2008, on The Toxico-Legal Interface: Use of Toxicological Science in Regulation and Litigation. Co-sponsored by Duke Law School and Duke's Integrated Toxicology and Environmental Health Program, the agenda includes a...
NTSB Team Investigating L.A. Metrolink Crash
Posted on September 21, 2008More on the Metrolink Train Crash from the L.A. Times -- NTSB team sorting out what happened in Metrolink crash, by Robert J. Lopez. Here's an excerpt: Engineer Robert M. Sanchez pulled Metrolink 111 out of the Chatsworth station and...
Class Actions in Australia and Finland
Posted on September 20, 2008Peter Spender of Australian National University has written an article titled "The Class Action as Sheriff: Private Law Enforcement and remedial Roulette," which discusses class actions in Australia, Canada, and the U.S. Mikko Valimaki, of Helsinki University of Technology, has...
Wyeth v. Levine Background
Posted on September 19, 2008Adam Liptak's article in the New York Times today describes the key people involved in Wyeth v. Levine, the pre-emption case that could change the face of mass torts. Here's a short excerpt: In the spring of 2000, suffering from...
New Tort Books from Cambridge University Press
Posted on September 17, 2008Cambridge University Press has published two tort books of interest: Toxic Torts: Science, Law and the Possibility of Justice, by Professor Carl F. Cranor (UC Riverside); and Tort Wars, by Joel Levin (Levin & Associates). BGS
Metrolink Train Crash in Los Angeles
Posted on September 15, 2008Los Angeles suffered one of the worst train crashes in American history on Friday, leading to approximately 25 dead and more than 100 injured. A Metrolink commuter train rammed head-on into a Union Pacific freight train. Initially, Metrolink blamed the...
Klass on State Tort Law
Posted on September 12, 2008Alexandra Klass (Minnesota) has just posted an article on SSRN titled "Tort Experiments in the Laboratories of Democracy." The abstract is below: This Article considers the broad range of tort experiments states have undertaken in recent years as well as...
Parisi and Cenini on Punitive Damages and Class Actions
Posted on September 12, 2008In an article aptly titled Punitive Damages and Class Actions, just posted on SSRN, Francesco Parisi (Minnesota) and Marta Cenini (Milan) take on the relationship between punitive damages and class actions. Here is the abstract: Punitive damages and class actions...
Missouri Residents Claim Manufacturing Waste Caused Tumors
Posted on September 12, 2008Today's BNA Class Action Litigation Report (p. 710) reports that residents in Clinton and Dekalb Counties in Missouri filed a class action (with two subclasses) claiming that Rockwool Industries, Inc., a fiber insulation manufacturer, dumped lead and arsenic as well...
Health Concerns Remain 7 Years After 9/11/2001
Posted on September 11, 2008It's been seven years since the attacks in 9/11/2001, and health concerns remain. Here's an excerpt from an article today from cnn.com -- 9/11 survivors troubled by asthma, PTSD, by Andrea Kane: A commission charged with examining the scope and...
Reynolds Cuts Jobs; Altria to Acquire UST
Posted on September 09, 2008Article in the Wall Street Journal -- Reynolds American to Cut 570 Jobs, by David Benoit. Here's an excerpt: Reynolds American Inc. will lay off 10% of its U.S. work force and refocus R.J. Reynolds Tobacco Co. as the company...
Vaccine Act Preempts Design Defects and Failure to Warn Claims
Posted on September 09, 2008Several plaintiffs across the country have initiated failure to warn and design defects cases against Aventis Pasteur Inc, Merck, and Wyeth. They allege that the childhood vaccines cause autism. Most recently, Judge New, of the Philidelphia Court of Common Pleas,...
Brickman Against Screening
Posted on September 09, 2008Lester Brickman (Cardozo) has just posted an article on SSRN entitled The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?" Here is the abstract: Lawyers obtain the "mass" for some mass tort litigations by conducting screenings to...
Judge Weinstein Unseals Zyprexa Documents
Posted on September 08, 2008Noting that "Lilly's legitimate interest in confidentiality does not outweigh the public interest in disclosure," Judge Jack B. Weinstein unsealed formerly confidential documents on links between Zyprexa, obesity, and high blood sugar. Both the New York Law Journal and the...
FDA Adds Warnings on Arthritis Drugs
Posted on September 05, 2008Article on cnn.com -- FDA warns on arthritis drugs: Government regulators order stronger warnings for four types of arthritis medication, saying they can increase risk of death by infection, by the Associated Press. BGS
"Infuse Bone Graft" Linked to Life-Threatening Complications
Posted on September 04, 2008The FDA has received 38 reports that Medtronic Inc.'s "Infuse Bone Graft," typically used to encourage bone growth in spinal surgeries, causes neck and throat swelling--life threatening injuries. The Wall Street Journal has a lengthy article by David Armstrong and...
Laura Dooley on National Juries for National Cases
Posted on September 03, 2008Professor Laura Dooley (Valparaiso; picture, left) has published her article, National , 83 N.Y.U. L. Rev. 411 (2008) Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation. Here's the abstract from SSRN: Procedural evolution in complex cases seems to...
Roger Williams Law Review Symposium Issue on Genuine Tort Reform
Posted on September 03, 2008The Roger Williams University Law Review has published its symposium issue on Genuine Tort Reform. Included are the following: Carl T. Bogus, Introduction: Genuine Tort Reform, 13 Roger Williams U. L. Rev. 1 (2008) Deborah Hensler, Jurors in the Material...
NEJM Says Too Early to Dismiss Cancer Concerns for Vytorin
Posted on September 03, 2008Article in the Wall Street Journal -- Medical Journal Raises Concern About Vytorin, by Alicia Mundy and Jared Favole. Here's an excerpt: The editors of the New England Journal of Medicine, in a rare move, said that it is too...
UK Changes Allow Investing in Law Firms
Posted on August 30, 2008Article in the Economist -- Legal Advice: Should you buy shares in a law firm?, which discusses recent changes in the UK allowing for non-partnership structures for law firms, and external investing by the public via, for example, initial public...
Vytorin Study Results on Potential Cancer Link to Be Released Next Week
Posted on August 28, 2008Article in Forbes -- Another Storm Brewing For Vytorin, by Matthew Herper. Here's an excerpt: When a study linking the widely used cholesterol drug Vytorin to cancer came out in July it caused a stir--for a few hours. It should...
FDA Says Salmonella Outbreak Over -- Blaming Jalapenos, Not Tomatoes
Posted on August 28, 2008Article in the Wall Street Journal -- Salmonella Outbreak Is Over, Federal Health Officials Say, by the Associated Press. Now I can stop worrying about what to add to my Subway sandwiches. BGS
Richard Epstein on Field Preemption of State Laws in Drug Cases
Posted on August 27, 2008Professor Richard Epstein (Chicago) has published The Case for Field Preemption of State Laws in Drug Cases on Northwestern University Law Review's Colloquy. Here's an excerpt: This brief Comment renews my defense of strong field preemption for FDA regulation...
Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts
Posted on August 26, 2008I've posted my manuscript, Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts, on Bepress. Here's the abstract: If there are no prior inconsistent verdicts, non-mutual offensive issue preclusion generally allows a finding by a single jury to...
Nagareda on Class Certification in the Age of Aggregate Proof
Posted on August 26, 2008Richard Nagareda has posted his article, Class Certification in the Age of Aggregate Proof, on SSRN. It will appear this spring in New York University Law Review. Here's the abstract: Few pre-trial motions in our civil justice system elicit as...
FDA May Set Rules for Food Allergy Warnings
Posted on August 25, 2008Article on cnn.com -- FDA to consider rules for food allergy warnings, by the Associated Press. BGS
New Scholarship on Using a Cost-Benefit Analysis in Certification
Posted on August 22, 2008Patrick Luff, a student at Michigan, has posted his piece, "Bad Bargains: The Mistake of Allowing Cost-Benefit Analyses in Class Action Certification Decisions," on SSRN. Here's the abstract: The class action is a bete noir, attacked by corporate counsel, politicians,...
Drug and Device Law on MDL
Posted on August 19, 2008In this post on the Drug and Device Law Blog, a guest blogger Pearson Bownas discusses a defense side point of view on when the MDL grants motions to transfer. An interesting post, and I'd be interested in hearing any...
Iraq Injuries Spur Putative Class Action
Posted on August 18, 2008According to the Fulton County Daily Report, a wrecker driver who was employed in Iraq with Houston-based Kellogg, Brown & Root claims that the company sent him without adequate training. Here's a brief excerpt of the story: On Tuesday, his...
Plaintiffs Rejecting Settlement Offers Fare Worse at Trial
Posted on August 15, 2008While not exclusively related to mass torts, the ABA reports on the results of a new study of civil suits from 2000-2005, which found that 61% of plaintiffs rejecting settlement offers fared worse at trial. Here's a link to the...
Gearing up for Wyeth v. Levine
Posted on August 13, 2008This morning's Wall Street Journal has a preview of the two sides and the politics involved in Wyeth v. Levine, which will be argued before the Supreme Court on November 3. Here's an excerpt of the piece by Alicia Mundy:...
International Human Rights Litigation in U.S. Courts
Posted on August 08, 2008Beth Stephens, Judith Chomsky, Jennifer Green, Paul Hoffman, and Michael Ratner have published the second edition of International Human Rights Litigations in U.S. Courts (2008). Jefrrey Davis has published his book, Justice Across Borders: The Struggle for Human Rights in...
WSJ Editorial on FASB Proposed Rule Requiring Disclosure of Estimate of Lawsuit Cost
Posted on August 07, 2008Editorial in the Wall Street Journal -- FASB's Lawyer Bonanza. Here's an excerpt: Under the proposed change, a company facing a lawsuit would have to list on its financial statement its best-guess estimate of what that litigation could end up...
Krueger and Serotta on Cy Pres Class Distributions
Posted on August 06, 2008Editorial in the Wall Street Journal -- Our Class-Action System Is Unconstitutional, by George Krueger and Judd Serotta (both of Blank Rome). The editorial criticizes the cy pres method of distribution of class proceeds. Here's an excerpt: In our view,...
WSJ Editorial on Milberg
Posted on August 05, 2008Editorial in the Wall Street Journal -- Justice and Milberg. Here's an excerpt: Poor Bernie Ebbers, the former WorldCom boss now serving a 25-year prison sentence. If he'd been a class-action lawyer, the former CEO might have ended up with...
Bauer on Secret Settlements
Posted on August 01, 2008Jon Bauer (Connecticut) has recently posted an important article on SSRN on the ethics of settlements that impede other parties' access to evidence entitled "Buying Witness Silence: Evidence Suppressing Settlements and Lawyers' Ethics." This issue is relevant to the civil...
Effron on Disaster Specific Mechanisms for Consolidation
Posted on August 01, 2008Robin Effron (Brooklyn Law) recently posted an article entitled "Disaster-Specific Mechanisms for Consolidation" on SSRN (and forthcoming in the Tulane L. Rev.). Here is the abstract: Within the past decade, two large scale catastrophes - the terrorist attacks of September...
July 2008 Issue of Skadden's Class Action Chronicle
Posted on July 31, 2008Skadden has posted the July 2008 issue of Class Action Chronicle, which includes several interesting, brief comments by Skadden lawyers, including Communicating Ethically with Class Members, by David Clancy; an interview with Raoul Kennedy on defending class action trials; and...
Anti-Tobacco Activist Dr. Richmond Dies at 91
Posted on July 30, 2008Bruce Weber of the New York Times reports that Dr. Jules B. Richmond, known for founding Project Head Start and campaigning against the tobacco industry, died Sunday. Here's an excerpt: In his 80s, [Dr. Richmond] testified in two trials involving...
Ninth Circuit Overturns Sua Sponte Class Certification
Posted on July 29, 2008Last week the Ninth Circuit overturned a district court judge's sua sponte class certification in Bonlender v. American Honda Motor Co., Inc., 2008 WL 2873264 (9th Cir. July 22, 2008). Apparently the district court failed to make any Rule 23(a)...
Part II of Catherine Sharkey on FDA Preemption of State Law Products Liability Claims
Posted on July 27, 2008Part II of Professor Catherine Sharkey's essay, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, has been posted on Northwestern Colloquy. BGS
Catherine Sharkey on FDA Preemption of State Law Products Liability Claims
Posted on July 21, 2008Professor Catherine Sharkey (NYU) has published part I of her essay, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, on Northwestern Colloquy, an extension of the Northwestern University Law Review. Here's an excerpt: When such policy...
Kevin Clermont on Litigation Realities
Posted on July 19, 2008Professor Kevin Clermont (Cornell) has posted his forthcoming article, Litigation Realities Redux, on NELLCO/Bepress. Here's the abstract: Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial,...
FDA Focuses on Hot Peppers in Salmonella Investigation, Lifts Tomato Warning
Posted on July 18, 2008Article in the Wall Street Journal -- Hot Peppers Are Focus Of Salmonella Probe, by Jane Zhang. Here's an excerpt: The Food and Drug Administration declared tomatoes safe to eat, saying it is focusing on hot peppers in its hunt...
Climate Change and the Tort Paradigm
Posted on July 18, 2008Can notions of corrective justice or distributive justice inform discussions of global warming? Is tort law helpful as a paradigm in which to resolve global warming concerns? Professors Eric Posner (Chicago; picture left) and Cass Sunstein (Harvard; picture right) probe...
Russell Jackson on Lead Paint Litigation
Posted on July 16, 2008J. Russell Jackson (Skadden, Arps) has published Products Liability: Lead Paint Litigation in the National Law Journal. The article discusses the state of lead paint litigation after the Rhode Island Supreme Court's recent reversal of lead-paint nuisance claims...
Increase in Use of Drug-Coated Stents, Despite Past Safety Concerns
Posted on July 16, 2008Article in the Wall Street Journal -- Use of Coated Stents on the Rise, by Keith J. Winstein. Here's an excerpt: Drug-coated heart stents, whose U.S. sales were hard hit over safety concerns in the past two years, appear to...
Mark Herrman on Alison Bass's Book, Side Effects
Posted on July 16, 2008Book review in the Wall Street Journal -- The Plaintiff Was Unhappy, by Mark Herrman (of Jones Day and the Drug & Device Blog). Herrman is critical of the new book, Side Effects: A Prosecutor, a Whistleblower, and a Bestselling...
Kia Class Action Appealed to Pennsylvania Supreme Court
Posted on July 16, 2008As reported by the Legal Intelligencer, the Pennsylvania Supreme Court has agreed to hear the following four issues from the Kia class action in Samuel-Bassett v. Kia Motors America, Inc.: whether the fact-specific claim that the class representative's brake express...
California Supreme Court to Review Punitive Damages Award in Ford Rollover Case
Posted on July 14, 2008Article in Bloomberg.com -- Ford Gets California Review of $82.6 Million Rollover Verdict, by Edvard Pettersson. (H/t to AmLaw Litigation Daily.) Here's an excerpt: Ford Motor Co., the second-biggest U.S.-based automaker, will get a review from California's highest court of...
New Mexico High Court Upholds Multi-State Class Action
Posted on July 11, 2008The New Mexico Supreme Court issued an opinion recently upholding a 13 state consumer class action against Allstate alleging breach of contract. The Court found that the state laws in the 13 states were sufficiently similar to New Mexico law...
Update on Kentucky Fen-Phen Lawyers' Trial
Posted on July 11, 2008The Wall Street Journal Law Blog reports that Judge William Bertelsman declared a mistrial in the Kentucky lawyers' fen-phen case after the jury reported that they were "hopelessly deadlocked." Here's an excerpt: Cunningham, Gallion and a third defendant, Melbourne Mills,...
Judge Overturns Punitive Damage Award in Prempro Case
Posted on July 10, 2008Arkansas district judge Bill Wilson overturned an Arkansas jury's punitive damage award of $27 million to Donna Scroggin. The award included $2.75 million in compensatory damages. Judge Wilson based his decision on discarding plaintiff's expert evidence from Dr...
Canadian Class Action Law
Posted on July 07, 2008John Beisner, Allison Orr Larsen, and Karl Thompson, all of O'Melveny & Myers, have published an article, Canadian Class Action Law: A Flawed Model for European Class Actions, in the most recent Federalist Society Engage. BGS
Bhopal 25 Years Later
Posted on July 07, 2008An article entitled "Decades Later, Toxic Sludge Torments Bhopal" in the New York Times today by Somini Sengupta, discusses the continuing aftermath of the Union Carbide Bhopal disaster. The failure to clean up the mess left by the disaster is...
MTLB named a Top 100 Law Blog
Posted on July 03, 2008Well, congratulations to us. The Mass Tort Litigation Blog was named a "Top 100 Law and Lawyer Blog" by the Criminal Justice Degrees Guide, along with fourteen other law professor blogs including Lessig, Volokh, Bainbridge, Madisonian, Tax Prof, and other...
State Court Rulings Undercut Consumer Arbitration Clauses That Waive Class Actions
Posted on July 03, 2008Article in the Wall Street Journal -- Recent Rulings Bolster the Case For Class Actions, by Nathan Koppel. Here's an excerpt: Widespread efforts by companies to prevent consumers from pursuing class-action suits against them are increasingly getting quashed by state...
Ted Frank on Exxon v. Baker
Posted on July 03, 2008Ted Frank, director of the AEI Legal Center for the Public Interest, discusses the recent punitive-damages Supreme Court decision, Exxon v. Baker, as part of a Federalist Society SCOTUScast. BGS
Lead Pain Reversal in RI
Posted on July 02, 2008The Supreme Court of Rhode Island reversed in State of Rhode Island v. Lead Industries Association. The opinion below had imposed liability on lead paint manufacturers under a public nuisance theory. The RI Supreme Court rejected that theory of liability...
Continuing Salmonella Investigation Moves Beyond Tomatoes
Posted on July 02, 2008Article in the Wall Street Journal -- Salmonella Probe Looks Beyond Tomatoes, by Jane Zhang and Julie Jargon. Here's an excerpt: With the number of salmonella victims still climbing, federal regulators are widening their investigation to include other fresh produce...
Melbourn Mills Cleared in Kentucky Fen-Phen Settlement
Posted on July 02, 2008Yesterday a federal jury acquitted Melbourne Mills, one of the three attorneys accused of defrauding clients in the Kentucky fen-phen settlement. The Associated Press story can be found here. ECB
Sebok on the Exxon Punitive Damages Case
Posted on July 02, 2008Anthony Sebok (Cardozo) has an excellent Findlaw colum (click here) on Exxon v. Baker. There are lots of interesting points in this column. Sebok's discussion of the history -- and of the importance of the theory of punitive damages in...
Drug Companies Lament Stricter FDA Scrutiny
Posted on June 30, 2008An article in this morning's Wall Street Journal by Avery Johnson and Ron Winslow details the flip-side of increased FDA scrutiny: fewer new drugs in the pipeline. Drug companies such as Eli Lilly & Co, Japan's Daiichi Sankyo Co. and...
What's So Weird About the Exxon Decision?
Posted on June 26, 2008I just finished reading the decision in Exxon v. Baker and have a few preliminary thoughts. As most of our readers are aware from Byron's post, the decision reconsidered the punitive damages in the case arising out of the Exxon...
SCOTUS Reduces Exxon Oil Spill Punitive Damages to Match Compensatory Damages
Posted on June 25, 2008Article on cnn.com -- High court reduces Exxon oil spill damages. Here's an excerpt: The Supreme Court has reduced a $2.5 billion punitive damages award against energy giant Exxon for its role in an infamous 1989 maritime oil spill. The...
Scruggs To Receive Sentence
Posted on June 23, 2008Article in the Wall Street Journal -- Sentencing Doesn't End Scruggs's Legal Woes, by Ashby Jones. Here's an excerpt: Richard "Dickie" Scruggs, the high-profile plaintiffs lawyer who pleaded guilty in March to conspiring to bribe a Mississippi judge, will likely...
Viewing the Battle Over Tort Reform
Posted on June 23, 2008Interesting, expansive article in the New York Times -- To the Trenches: The Tort War Is Raging On, by Jonathan Glater. Thanks to Evan Anziska for emailing it to me. Here's an excerpt: In a Washington ballroom bedecked with flags...
Neurologist Requested Additional Warnings for Neurontin
Posted on June 20, 2008A U.S. District Court in Boston and New York state court held joint hearings on whether lawsuits against Pfizer, Inc. based on Neurontin could continue. Plaintiffs allege that the drug lead to suicides. Here's an excerpt of Jeremy Singer-Vine's Wall....
Scheuerman on the Relationship Between Punitive Damages & Class Actions
Posted on June 20, 2008Susan Scheuerman (Charleston) just posted an article entitled "Two World Collide: How the Supreme Court's Recent Punitive Damages Jurisprudence Affects Class Actions" on SSRN. Here is the abstract: This article examines the intersection between two controversial areas of the law...
Widener Law Journal's Crimtorts Symposium Issue
Posted on June 18, 2008The Widener Law Journal has published its issues in connection with its February 2008 symposium, Crimtorts. Torts Prof Blog has links to all the articles, which include the following: Christopher J. Robinette, Introduction Kenneth W. Simons, The Crime/Tort Distinction: Legal...
Milberg Update
Posted on June 18, 2008There are several recent articles on the Milberg fallout. The first is an article in the American Lawyer by Alison Frankel on William Taylor III, Milberg LLP's counsel on its recent deal. Here's an excerpt: In the end, says the...
Miller on Preliminary Judgments
Posted on June 17, 2008Geoffrey Miller (NYU) just posted an article called "Preliminary Judgments" on bepress. Here is the abstract: This article proposes the preliminary judgment as a means for facilitating the settlement of legal disputes. A preliminary judgment is simply a tentative judicial...
After preemption, where do mass tort lawyers go?
Posted on June 16, 2008For mass tort plaintiffs' lawyers, the scariest legal issue of the moment is preemption. If FDA approval of a warning or product preempts state law tort claims, lots of otherwise viable mass torts disappear. Preemption has figured prominently on this...
Taylor v. Sturgell
Posted on June 12, 2008Today the Supreme Court decided Taylor v. Sturgell, the FOIA virtual representation case. The unanimous opinion by Justice Ginsburg unequivocally rejects virtual representation as a basis for nonparty preclusion, as Alexi Lahav noted earlier. As far as I'm concerned, the...
New Details on the Kentucky Fen-Phen Settlement
Posted on June 12, 2008Beth Musgrave of the Kentucky Herald-Leader has the latest report on Kentucky fen-phen attorneys William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr., who are accused of taking more than $65 million from their clients in the diet drug settlement...
Procedure in the Supreme Court
Posted on June 12, 2008The Supreme Court issued its opinion in Republic of the Philippines v. Pimentel (06-1204), a Rule 19 case (failure to join a necessary party) arising out of a human rights mass tort action against Marcos. The opinion can be found...
Pet Owners Seek Class Action Over Food Additives
Posted on June 10, 2008The Daily Business Review reports that animal owners are seeking class certification over a new type of pet food class action that resembles a false-advertising claim. They claim that certain advertisements make false claims about the contents of pet food,...
Supreme Court grants cert in Williams v. Philip Morris (again)
Posted on June 09, 2008The Supreme Court today granted certiorari to hear another appeal concerning punitive damages in Williams v. Philip Morris, this time to decide whether the Oregon courts complied with the U.S. Supreme Court's earlier ruling in the case. Here's a link...
Two Perspectives on Bill Lerach
Posted on June 09, 2008Conde Nast's Portfolio.com's July issue features a story by Bill Lerach titled "I Am Gulity." New York Times writer Joe Nocera offers a less flattering perspective in his story, "Serving Time, but Lacking Remorse." Both are interesting reads. ECB
FDA Warning Letters Decline
Posted on June 07, 2008Article in the Wall Street Journal -- FDA Warning Letters to Companies Decline Sharply, by Jared Favole. Here's an excerpt: The number of Food and Drug Administration warning letters sent to companies dropped by half in the past 10 years,...
New Emprical Study on Summary Judgment
Posted on June 06, 2008An article entitled "Summary Judgment Cases Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts," by Theodore Eisenberg & Charlotte Lanvers, just posted on SSRN (available here) reaches some interesting conclusions about summary...
NJ Supreme Court decides Sinclair v. Merck
Posted on June 04, 2008The New Jersey Supreme Court issued its decision in Sinclair v. Merck, a medical monitoring class action filed against Merck on behalf of Vioxx users who had not filed personal injury claims. The opinion is available here. The court rejected...
Antiobesity Drug Linked to Deaths in U.K.
Posted on June 04, 2008Today's Wall Street Journal reports that Acompli has been linked to several deaths in the United Kingdom. The U.S. FDA rejected Acompli for sale in the United States last year. Here's an excerpt from the Journal's report: A spokesman for...
Mel Weiss Receives 30-Month Sentence
Posted on June 03, 2008Article in the Wall Street Journal -- Weiss Gets 30-Month Sentence, by Rhonda L. Rundle and Nathan Koppel. Here's an excerpt: The career of one of the nation's most entrepreneurial, controversial, philanthropic and rich lawyers came to a close Monday,...
Milberg LLP Nears Settlement Deal
Posted on June 02, 2008Today's Wall Street Journal reports that prosecutors are close to reaching a $75 million deal with Milberg LLP, although both sides declined to comment. Here's an excerpt: If the amount under discussion in the Milberg talks holds, the government will...
Florida Asbestos Cases Revived
Posted on June 01, 2008The Fourth District Court of Appeal in Florida revived thousands of Florida asbestos suits last week by ruling that the Florida Asbestos and Silica Compensation Fairness Act couldn't be applied retroactively. Here's an excerpt of the Daily Business Review's story:...
Judge Grants Initial Approval to Pet Food Class Settlement
Posted on June 01, 2008Article in the Associated Press -- Recalled pet food settlement gets initial approval, by Geoff Mulvihill. Here's an excerpt: A judge granted initial approval Friday to a settlement in which companies that manufactured or sold contaminated pet food would compensate...
WSJ on Vioxx Appellate Rulings
Posted on May 31, 2008Editorial in the Wall Street Journal -- Vindicating Vioxx. Here's an excerpt: Texas and New Jersey may have different political cultures, but appeals courts in both states this week delivered a one-two punch to the liability suits against Merck for...
Texas and New Jersey Courts Overturn Vioxx Verdicts
Posted on May 30, 2008Article in the Houston Chronicle -- Court tosses Vioxx award: Houston panel rules plaintiff will get none of the $26 million, by Mary Flood. Here's an excerpt in which I'm quoted: A Houston appellate court Thursday overturned a $26 million...
ABA Mass Torts Litigation Committee Spring 2008 Newsletter
Posted on May 29, 2008The ABA's Mass Torts Litigation Committee has posted its Spring 2008 Newsletter, which includes the following articles: Foreign Torts and the Commerce Clause: Territorial Limitations On State Power To Impose Punitive Damages, by William E. Thomson (Gibson Dunn) Public Nuisance...
Pfizer Begins Public Relations Campaign to Counter Chantix Concerns
Posted on May 29, 2008Article in the Wall Street Journal -- Pfizer Seeks to Counter Chantix Concerns, by Alicia Mundy and Avery Johnson. Here's an excerpt: Pfizer Inc. is preparing an advertising and public-relations campaign to counter concerns about its antismoking drug Chantix, once...
Pfizer to Hire Amy Schulman as Next General Counsel
Posted on May 29, 2008Amy Schulman, who heads the mass tort/class action practice at DLA Piper, will be the next general counsel at Pfizer. Ms. Schulman lead the Celebrex and Bextra litigations for Pfizer (see WSJ blog and article), and was also the subject...
Mel Weiss Files Sentencing Memo
Posted on May 28, 2008Article in AmLaw Daily -- Defending Mel Weiss, by Ben Hallman. Here's an excerpt: Mother Teresa, move aside. Melvyn Weiss, a plaintiffs lawyer who made millions of dollars by suing corporate America--and who recently pleaded guilty to a racketeering conspiracy...
$24 Million Pet-Food Settlement
Posted on May 26, 2008Article in the L.A. Times -- Pet food companies OK $24-million settlement, by the Associated Press. Here's an excerpt: Companies that were sued over contaminated pet food linked to the deaths of perhaps thousands of dogs and cats have agreed...
FDA to Expand Post-Approval Review of Drugs
Posted on May 23, 2008Gardiner Harris of the New York Times reports today in an article entitled "FDA to Expand Scrutiny of Risks From Drugs After They're Approved for Sale" that the FDA has a new program called the "Sentinel Initiative" that will monitor...
Institute for Safe Medicine Practices Releases New Chantix Report
Posted on May 22, 2008The Institute for Safe Medicine Practices, a non-profit group organized to improve drug safety and review the FDA's adverse-event reports, recently released a study on Chantix. The report indicated a greater spectrum of side effects, including heart trouble, seizures, and...
Fen-Phen Kentucky Lawyers on Trial
Posted on May 22, 2008There have been several reports lately about the mishandling of Fen-Phen settlement funds in Kentucky. Here are two excerpts. The first is from the Wall Street Journal Law Blog: There are many bizarre aspects of the story behind the three...
FAA Bans Chantix Use By Pilots and Air Traffic Controllers
Posted on May 21, 2008Article on cnnmoney.com -- FAA bans Pfizer anti-smoking drug. Our initial Chantix blog post in November 2006 has so far lead to 178 comments, most of them describing physical and mental problems occurring in people using Chantix. Here's an excerpt...
Merck to Settle Vioxx Advertising Claims by AGs for $58 Million & Ban on Medical Ghostwriting
Posted on May 21, 2008Article in the Wall Street Journal -- Merck Will Pay $58 Million To Settle Vioxx Ad Claims, by Kevin Kingsbury. Here's an excerpt: Merck & Co. agreed to pay $58 million to settle claims by 28 states and the District...
10 Best Law Review Articles on Mass Torts
Posted on May 21, 2008Since law professors love lists and hierarchies, I thought it might be fun to consider the best articles on the subject of this blog: mass tort litigation. I have excluded from the list below (1) any participants in this blog...
Video of Widener Law School Symposium on Crimtorts
Posted on May 20, 2008Widener Law School has posted the videos of the panels for its Crimtorts symposium last February (see prior posts on the symposium here and here). BGS
Timothy Lytton on Clergy Sexual Abuse Litigation
Posted on May 15, 2008Hot off the presses, here's Timothy Lytton's new book on the Catholic Church sex abuse litigation -- Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008). The book builds on Lytton's related...
Recovering the Social Value of Jurisdictional Redundancy
Posted on May 15, 2008I just posted a piece that I wrote for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation on bepress (download here) and SSRN (download here). The piece should appear on both these links shortly. Here is the...
David Marcus on Nagareda
Posted on May 15, 2008David Marcus of the University of Arizona has written an extensive book review of Richard Nagareda's Mass Torts in a World of Settlement. The review, entitled Some Realism about Mass Torts, will appear in the University of Chicago Law Review....
Texas Court Overturns Vioxx Ruling
Posted on May 14, 2008As reported in the New York Times by the Associated Press. The plaintiff in Garza v. Merck initially won $32 million, which was reduced to $7.75 million. The AP reports that "the Texas Fourth Court of Appeals overturned the verdict,...
Clermont on Litigation Realities
Posted on May 14, 2008While not specific to mass torts, Kevin Clermont has posted his latest empirical work, Litigation Realities Redux, which is broadly applicable to the litigation process. Here's the abstract: Both summarizing recent empirical work and presenting new observations on each of...
No, the Minnesota Bridge Compensation Deal is not a Mini-9/11 Fund
Posted on May 09, 2008Yesterday, Gov. Tim Pawlenty signed a $38 million settlement for victims of the I-35W bridge collapse. Here's the AP story in USA Today. Interestingly, state legislator Phyllis Kahn, who co-authored the compensation bill, was quoted in this article in the...
Saraceno on the Downsides of Group Litigation
Posted on May 09, 2008Help has arrived if you are looking for counterarguments to the standard (and to my mind, convincing) argument that collective litigation usually aids plaintiffs by providing economies of scale, permitting investment based on aggregate stakes, and creating settlement leverage...
Brown on Asbestos Bankruptcies
Posted on May 09, 2008S. Todd Brown of Temple University has posted a new paper on SSRN, Section 525(g) Without Compromise: Voting Rights and the Asbestos Bankruptcy Paradox, forthcoming in the Columbia Business Law Review, arguing that the voting structure for approving asbestos bankruptcy...
Oil Companies Settle Groundwater Contamination Suit
Posted on May 08, 2008The New York Times reported yesterday that some of the oil companies involved in a groundwater contamination suit that spanned across 17 states, including New York and California, have agreed to settle for $423 million. Over a hundred public water...
Bone on the Normative Foundations of Litigation Reform
Posted on May 07, 2008I just ran across a (relatively recent) article by Robert Bone entitled "Securing the Normative Foundations of Litigation Reform," 86 B.U. L. Rev. 115 (2006) and available on SSRN. Here is the abstract: Federal court adjudication has changed in major...
Elizabeth Thornburg on "Judicial Hellholes"
Posted on May 07, 2008Professor Elizabeth Thornburg (SMU) has posted an article to SSRN -- Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia, W. Va. L. Rev. (forthcoming 2008). Here's the abstract: The American Tort Reform Association (ATRA) was founded...
Farber on Torts and Catastrophe
Posted on May 07, 2008Daniel Farber (Berkeley Law) has just posted an article on SSRN entitled "Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks." The abstract follows: Tort cases generally deal with routine risks - the....
Indian Protests Over Bhopal Disaster
Posted on May 06, 2008The Bhopal gas-leak disaster in India remains perhaps the most devastating single-incident mass tort in terms of loss of human life. As this article from the Associated Press shows, nearly 25 years later, the effects are still being felt. Here's...
Parness on Judicial Settlement Conferences
Posted on May 06, 2008In the vein of scholarship propounding greater bureaucratization of the courts comes this article - "Improving Judicial Settlement Conferences" - from Jeffrey Parness (Northern Ill.) (and available on SSRN) suggesting more formalization and guidelines for judicial settlement conferences...
Compensation Deal for Minnesota Bridge Collapse Victims
Posted on May 05, 2008The Minnesota state legislature appears on the verge of approving a $38 million compensation package to settle the claims of victims of the 2007 collapse of the I-35 bridge over the Mississippi River in Minneapolis, according to this AP story...
Ninth Circuit Opinion on Anti-Injunction Act
Posted on May 04, 2008The Ninth Circuit issued an opinion last week on the All Writs Act exception to the Anti-Injunction Act. In Negrete v. Allianz Life Insurance Co. of North America, 2008 WL 1868993, the district court certified a nationwide RICO class a...
Pfizer Settlements for Bextra and Celebrex
Posted on May 04, 2008Article in the Wall Street Journal -- Pfizer Settles Lawsuits Over Two Painkillers, by Nathan Koppel and Heather Won Tesoriero. What's interesting is Pfizer's approach to settlement: negotiating settlements with plaintiff's firms that have a large inventory of plaintiffs, rather...
The Hon. Sam C. Pointer, Jr. (1934-2008)
Posted on April 30, 2008Judge Sam Pointer passed away on March 15. In his thirty years as a federal judge in Alabama, he made his mark in both civil rights and complex litigation. Readers of this blog may know him best for his work...
Conference on Mass Litigation
Posted on April 30, 2008ALI-ABA is running a conference on mass litigation in Charleston, South Carolina, from May 29-31, 2008 with a strong faculty of judges, practitioners, and academics. Some agenda items of interest to mass tort lawyers include sessions on Negotiating Mass Litigation...
Second Circuit Rejects New York Gun Lawsuit
Posted on April 30, 2008The Second Circuit today decided City of New York v. Beretta USA Corp. in favor of the defendant gun suppliers. Here's an excerpt from the N.Y. Times article: A federal appeals court dismissed New York City?s blanket lawsuit against the...
Verdict Upheld Against Port Authority in 1993 WTC Bombings
Posted on April 29, 2008John Sullivan, writing for the New York Times, reports that the NY Court of Appeals has upheld the verdict. He writes: ?The evidence placed before the jury entitled it to conclude that the defendant?s negligence was, if not gross, dramatically...
Sebok's Book Review of Nagareda's Mass Torts in a World of Settlement
Posted on April 26, 2008Professor Anthony Sebok (Brooklyn, pictured left) has published his book review, What Do We Talk About When We Talk About Mass Torts?, 106 Mich. L. Rev. 1213 (2008) Download sebok.pdf , which reviews Professor Richard Nagareda's recent book, Mass Torts...
Congress, FDA & Foreign Inspections
Posted on April 26, 2008Article in the Wall Street Journal -- Congress, FDA Debate Foreign Inspections, by Alicia Mundy. Here's an excerpt: Democrats in Congress and the Food and Drug Administration are in a standoff over giving the agency $70 million to bolster foreign...
Accutane Verdict of $10.6 Million
Posted on April 23, 2008A New Jersey jury hit Roche with a $10.6 million verdict in favor of a Utah woman who claimed that the acne medication Accutane caused her inflammatory bowel disease. The jury, finding that Roche provided inadequate labeling, awarded plaintiff Kamie....
Moss on Electronic Discovery: Separating the Wheat from the Chaff
Posted on April 23, 2008Scott Moss (Colorado) has just posted an economic analysis on electronic discovery on SSRN entitled: "Litigation Discovery Cannot be Optimal but Could be Better: The Economics of Improving Discovery Timing in the Digital Age." (Duke Law Review, forthcoming 2008)...
DePaul Symposium Issue on Challenges to the Attorney-Client Relationship
Posted on April 23, 2008The DePaul Law Review has published its issue based on its symposium, Challenges to the Attorney-Client Relationship: Threats to Sound Advice? Among the interesting articles are the following: Nancy J. Moore, The American Law Institute's Draft Proposal to Bypass the...
WSJ on Tobacco Regulation by FDA
Posted on April 22, 2008Editorial in the Wall Street Journal -- Cynicism and Big Tobacco. Here's an excerpt: Congress wants to give regulators more authority over the tobacco industry ? so what else is new? The surprise is that currently there are no plans...
Toxic Plastics
Posted on April 22, 2008Concerns about bisphenol-a, or BPA,a chemical used to make hard plastics (such as reusable water bottles, some baby bottles, food containers, liners for canned foods) are growing. Chemicals from these plastics, especially when heated, leach into food and human bodies...
The Chief on Law & Policy
Posted on April 22, 2008Chief Justice John Roberts served as a moot court judge at Columbia last week. One of the issues in the case was whether an issue class action could be certified. The Chief Justice's questions to the students (as reported by...
Richard Nagareda on Taylor v. Sturgell
Posted on April 21, 2008Richard Nagareda (Vanderbilt) has recorded a SCOTUScast on Taylor v. Sturgell, the nonparty preclusion case argued before the United States Supreme Court last week. Howard Erichson commented on the case last week in a post on this blog. BGS
Grisham's Latest
Posted on April 19, 2008What do mass tort scholars do in their down time? ... Well, read a mass tort novel, of course. John Grisham's latest book, The Appeal, involves a toxic tort of groundwater pollution that injures many in a Mississippi town --...
Is mass tort litigation a depressed market?
Posted on April 18, 2008In an interview with the Houston Chronicle, Texas legal recruiter Susan Pye answered questions about today's legal job market. When asked what areas are hot, she mentioned energy law and transactional work. She was not so sanguine, however, about mass...
Drug Companies Push for Easier Off-Label Rules
Posted on April 18, 2008This morning's Wall Street Journal reports that several major drug companies are pushing the FDA to relax its requirements for off-label drug use. Here's an excerpt: Ten major drug companies, including Pfizer Inc.; Bayer Corp., the U.S. unit of Bayer...
Federal Judicial Center Releases its Latest Report on CAFA
Posted on April 17, 2008Emery Lee and Tom Willging, of the Federal Judicial Center, have released their latest report on CAFA?s Impact on the Federal Courts. Here?s a link to the report. Here is an excerpt of their most important findings (p. 1-2): There...
Class Action Watch Issue
Posted on April 17, 2008The Federalist Society has posted the March 2008 issue of Class Action Watch. Articles include the following: Cy Pres Settlements by Theodore H. Frank (AEI) The Supreme Court Rejects "Scheme Liability" in Securities Class Actions by Larry Obhof (Kirkland &...
Taylor v. Sturgell Oral Argument
Posted on April 16, 2008The Supreme Court heard oral argument today in Taylor v. Sturgell, a fascinating case involving nonparty preclusion. Having read the transcript of the oral argument, I'd be surprised if the Court affirmed, but I would not be surprised if the...
Fen-Phen Attorneys' Fee Award
Posted on April 16, 2008It looks as though payday has finally arrived for fen-phen attorneys. After nearly a decade of litigation, Judge Harvey Bartle III awarded plaintiffs? lawyers from over 70 law firms $412 million for their efforts in litigating the Diet Drugs Product....
Moves: Erichson and Burch
Posted on April 16, 2008Two of your mass tort bloggers have accepted offers to join new law faculties next year. Howard Erichson is moving from Seton Hall to Fordham Law School. Beth Burch is moving from Samford (Cumberland) to Florida State University College of...
Vioxx and Medical Ghostwriters
Posted on April 15, 2008The New York Times today reported on a JAMA article about medical ghostwriting, raising questions about the integrity of pharmaceutical research studies published in medical journals. Here's how the Times account begins: The drug maker Merck drafted dozens of research...
Special Compensation for Victims of Terrorist Attacks?
Posted on April 11, 2008Robert Rabin (Stanford Law) and Stephen Sugarman (Boalt Hall) have just posted an intriguing article entitled "The Case for Specially Compensating the Victims of Terrorist Attacks: An Assessment" on SSRN. The paper was published in the Hofstra Law Review in...
Third Circuit's Recent Preemption Ruling
Posted on April 09, 2008In a recent case over Paxil and Zoloft, the Third Circuit held that plaintiffs? failure to warn claims (about the risks of suicide) were preempted. The FDA explicitly refused to order the warnings. Consequently, Judge Solviter concluded that the FDA....
RAND on Electronic Discovery
Posted on April 08, 2008RAND's Institute for Civil Justice has released a report on electronic discovery: James M. Dertouzos et al., The Legal and Economic Implications of Electronic Discovery (2008). Here's a description: Pretrial discovery ? the exchange of relevant information between litigants ?...
Second Circuit Dismisses Light Cigarette Class Action
Posted on April 03, 2008The Second Circuit dismissed an $800 billion light cigarettes class action against tobacco companies today. Although Judge Weinstein approved the class in September of 2006, the Second Circuit held found that individual issues, such as why smokers chose light cigarettes,...
Brooklyn Law School Symposium -- The Products Liability Restatement: Was it a Success?
Posted on April 03, 2008On November 13 and 14, 2008, Brooklyn Law School will host a symposium entitled, The Products Liability Restatement: Was it a Success? Presenters from academia include: Professors Richard Ausness (Kentucky), Anita Bernstein (Brooklyn), Margaret Berger (Brooklyn), Ellen Bublick (Arizona), Edward...
Nagareda on the Globalization of Aggregation
Posted on April 03, 2008Richard Nagareda (Vanderbilt) has just posted a promising article on SSRN entitled "Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism." Here is the abstract: This article analyzes the emerging phenomenon of trans-Atlantic civil litigation on an aggregate...
Charleston Law Review Symposium Issue on Punitive Damages After Philip Morris v. Williams
Posted on April 01, 2008Last September, Charleston Law School hosted a symposium entitled, Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams. (See prior posts here and here.) The resulting symposium issue of the Charleston Law Review has just been...
Alemanno on the Precautionary Principle and the ECJ
Posted on April 01, 2008A very interesting article recently posted on SSRN by Alberto Alemanno entitled: The Shaping of the Precautionary Principle by European Courts: From Scientific Uncertainty to Legal Certainty. Here is the abstract: The aim of this study is to illustrate the...
No Immunity for NYC in 9/11 Claims
Posted on April 01, 2008BNA Law Week reports that on March 26 the Second Circuit held that New York City and its contractors are not automatically entitled to derivative Stafford Act immunity for state law claims brought by various persons (police, firefighters, etc.) who...
Regulating the Global Economy: Foreign Pharmaceuticals
Posted on April 01, 2008An article by Walt Bogdanich in the New York Times on March 30 describes the difficulties of regulating the content of drug imports, with special reference to the heparin scandal. The article can be found here. The article explains: "Anti-counterfeiting...
Foreign Courts Wary of Punitive Damages
Posted on March 31, 2008The New York Times has an interesting story on Italians? view of punitive damages. Apparently they are "so offensive to Italian notions of justice" that Italy refuses to enforce judgements containing punitive damages. Here?s an excerpt of the full article,...
Cardiologists Question Continued Use of Vytorin and Zetia
Posted on March 31, 2008This morning?s Wall Street Journal reports that a panel at the American College of Cardiology Study questioned heavy use of Vytorin and Zetia in fighting cardiovascular disease. Merck and Schering-Plough countered by saying "they believe Vytorin failed to show a...
Hadfield on the September 11 Fund and Litigation
Posted on March 28, 2008Gillian Hadfield (USC) has posted what promises to be a fascinating qualitative analysis on the decision of victims of the terror attacks of September 11, 2001 to litigate or obtain compensation through the September 11 Fund. The Article, called "Framing...
Mnookin on Idealizing Science and Demonizing Experts
Posted on March 28, 2008Jennifer Mnookin (UCLA) has just posted an article on SSRN entitled "Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence," 52 Villanova L. Rev. (2007). The Article provides some much needed perspective on the role of science in...
ABA Teleconference on Communicating with Class Members
Posted on March 28, 2008On May 20, the ABA Class Action and Derivative Suits Committee will host a teleconference CLE program on communicating with class members. I?ll be on the panel along with Lisa Rodriguez and Chris Murphy. Here?s the pertinent information from the...
FDA Proposes Guidelines for Drug-Coated Stents
Posted on March 27, 2008Article in the Wall Street Journal -- FDA Proposes Stent Guidelines, by Jennifer Levitz. Here's an excerpt: The Food and Drug Administration proposed tougher clinical-trial guidelines for drug-coated stents in response to concerns about blood clotting in the artery-opening devices...
FDA Drug Approval Near Deadline Linked to Safety Problems
Posted on March 27, 2008Article in the Wall Street Journal -- Late Drug Approval Linked To Safety Issues, by Keith J. Winstein. Here's an excerpt: Although every unsafe drug is different, most of them have something in common: last-minute approvals by the Food and...
Transparency in the Court System
Posted on March 27, 2008Lynn LoPucki (UCLA) has recently posted an article entitled "Court Transparency" on SSRN. This article discusses an issue that will be increasingly important, the availability of filings and other court data maintained electronically to the general public and to scholars...
Plaintiffs' Attorneys Mass Tort Conference
Posted on March 26, 2008Mass Tort plaintiffs? attorneys are hosting a conference in Las Vegas on April 10-11 titled "Mass Torts Made Perfect." Topics include Vioxx, Paxil, preemption, Ortho Evra, Heparin, Fosamax, and Accutane. Speakers include a number of prominent plaintiffs? attorneys as well...
GM Receives Preliminary Settlement Approval in Nationwide Auto-Repair Litigation
Posted on March 26, 2008The Recorder reports that Alameda County Superior Court Judge Robert Freedman has preliminarily approved a 49-state class action settlement between General Motors and plaintiffs over auto repairs. The settlement is worth approximately $150 million to car owners even though it...
Lilly Settles with the State of Alaska over Zyprexa Claims
Posted on March 26, 2008Rather than proceed with trial, Eli Lilly has entered into a $15 million settlement with the State of Alaska in the State?s Medicaid lawsuit over Zyprexa. The State?s suit involved claims that it had to pay for treatment of Zyprexa-related...
Pfizer Denied Discovery of JAMA Confidential Peer-Reviewer Comments in Celebrex and Bextra Litigation
Posted on March 25, 2008As the Wall Street Journal reports -- see Pfizer Is Denied Access to JAMA Files, by Thomas M. Burton -- a magistrate judge in federal district court in Chicago has denied Pfizer's request to obtain confidential JAMA peer-reviewer comments in...
Pthalates in Toys
Posted on March 25, 2008The PBS show NOW aired a segment about pthalates which are a chemical found in many toys and other soft plastic goods made of PVC plastic. You can access the show here. The EU has banned these substances in toys...
Punitive Damages and the World
Posted on March 25, 2008Interesting article by Adam Liptak in tomorrow's New York Times -- Foreign Courts Wary of U.S. Punitive Damages -- as part of the series on the American legal system in comparative perspective. The main point of the story is the...
Heparin Recall Because of Potentially Dangerous Contaminant
Posted on March 24, 2008Article in the Wall Street Journal -- Another Company Recalls Blood Thinner Heparin, by the Associated Press. Here's an excerpt: A manufacturer of the blood thinner heparin initiated a nationwide recall Friday because some products may contain a potentially dangerous...
Behrens, Sebok on Nagareda's Mass Torts in a World of Settlement
Posted on March 24, 2008Mark Behrens of Shook, Hardy & Bacon has a short book review of Professor Richard Nagareda's Mass Torts in a World of Settlement in the Federalist Society's February issue of Engage. Prior posts on Professor Nagareda's book are here (see...
Interview with Richard Nagareda on Mass Torts in a World of Settlement
Posted on March 24, 2008This blog has featured Richard Nagareda (Vanderbilt)'s new book Mass Torts in a World of Settlement in a previous post. Here is an interview of Nagareda sent to me by Rodger Citron (Touro) that may interest our readers: Vanderbilt Law...
Van Houtte & Yi on Mass Claims Relating to Wartime Property Loss
Posted on March 24, 2008Hans van Houtte (Katholieke Universiteit Leuven) and Iasson Yi have recently posted "Due Process in International Mass Claims" on SSRN. The article is published in 1 Erasmus Law Review (2008). The paper catalogs recent settlements of litigation arising out of...
Brickman on Fraudulent Claims
Posted on March 24, 2008Lester Brickman (Cardozo) recently updated an article on fraudulent claims in the asbestos context on SSRN. The title is "Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies." The article was published in the Cardozo Law...
Spiriva Respiratory Drug May Have Stroke Risk
Posted on March 24, 2008Article from the March 18 Wall Street Journal -- Boehringer Inhaler Might Pose Higher Stroke Risk, FDA Says, by Jennifer Corbett Dooren. Here's an excerpt: The Food and Drug Administration said Tuesday it is opening a safety review of Boehringer...
Stanford's Global Class Action Clearinghouse Website
Posted on March 20, 2008As a follow-up to the Globalization of Class Actions Conference in Oxford last December, Stanford has launched the Global Class Actions Clearinghouse Website. As Deborah Hensler writes, "[W]e hope [this website] will also become a repository for statutes, rules and...
Philadelphia Asbestos Verdict - $25.2 million
Posted on March 20, 2008The Legal Intelligencer reports that after a reverse-bifurcated trial, a Philadelphia jury awarded $25.2 million in compensatory and punitive damages to compensate for malignant mesothelioma deaths. Plaintiffs in the three cases requested Kentucky law; two settled after the compensatory damage...
Sunshine in Litigation Act
Posted on March 17, 2008According to the New York Times, the Senate Judiciary Committee has approved a bipartisan Sunshine in Litigation Act bill "that would require federal judges to consider public health and safety before granting protective orders, sealing court records, or approving a...
Drug Import Safety and the FDA
Posted on March 17, 2008A New York Times Article by Gardiner Harris published today highlights the problems in FDA monitoring of imported drugs due largely to lack of funding. The article is available here. The bottom line is this: The Institute of Medicine, the...
W.R. Grace Foots the Bill for Montana Asbestos Clean-up
Posted on March 12, 2008Susan Gallagher of the Associated Press reports that W.R. Grace & Co. agreed to pay $250 million toward asbestos clean-up in Libby, Montana. The full story is available online; here?s a brief excerpt: More than 215 asbestos-related deaths in Libby...
FDA's Controversial Role
Posted on March 12, 2008Today?s Wall Street Journal has another piece on potential further restrictions on anemia drugs sold by Amgen, Inc. and Johnson & Johnson (see Byron?s post for the earlier article). This piece highlights the FDA?s controversial nature. Here?s an excerpt: Last...
Zyprexa Hearings Broadcasted
Posted on March 12, 2008A short order by Judge Weinstein in the Zyprexa MDL on March 11, 2008, permitted cameras and recording equipment during the upcoming March 20 hearing. Here?s a brief excerpt of Judge Weinstein?s order: Video broadcasts assist in opening the courts...
Conference: Justice and the Role of Class Actions
Posted on March 12, 2008Cardozo Law School in New York is hosting a conference on Friday, March 28 entitled "Justice and the Role of Class Actions." The organizers describe the conference as follows: For too long, coverage of class action litigation has understated or...
Parties in Pet Food Litigation Near Settlement
Posted on March 09, 2008New Jersey Law Journal reports that parties are close to settling the multi-district litigation against Menu Foods for injuries resulting from its contaminated pet food. Here?s an excerpt: On Feb. 19, the U.S. Judicial Panel on Multidistrict Litigation consolidated suits...
Government Report Says U.S. Soldiers in Iraq Sickened at Bases With Questionable Water Supplied By Contractor
Posted on March 09, 2008Article on cnn.com -- Troops sickened at Iraq bases using KBR water, by the Associated Press. The story evokes memories of the Agent Orange class action litigation involving Vietnam Veterans suing for illnesses allegedly caused by exposure to the Agent...
FDA Adds Additional Black-Box Warnings to Anemia Drugs
Posted on March 09, 2008Article in the Wall Street Journal -- FDA Adds More Black-Box Warnings To Anemia Drugs From Amgen, J&J, by the Associated Press. Here's an excerpt: Drug maker Amgen Inc. says regulators have added new warnings about risks of death and...
The Law of Unintended Concequences: Warner Lambert v. Kent
Posted on March 06, 2008The folks over at Drug and Device Law Blog make an excellent observation about the 4-4 decision in Warner-Lambert v. Kent. Here's the idea: Pharmaceutical litigation often results in masses of cases being filed. When there are many cases that...
New Malingerer Pyschological Test Used and Challenged in Personal-Injury Cases
Posted on March 05, 2008Article in the Wall Street Journal -- Malingerer Test Roils Personal-Injury Law: 'Fake Bad Scale' Bars Real Victims, Its Critics Contend, by David Armstrong. Here's an excerpt: A test designed to expose fakers is roiling the field of personal-injury law,...
Wither Agent Orange
Posted on March 04, 2008BNA reports that the Second Circuit is driving the nails in the coffin of the Agent Orange litigation. It held on February 22 that the government contractor defense precludes claims by U.S. military veterans who allege injuries from exposure to...
Second Edition of Mullenix's Mass Tort Litigation Casebook
Posted on March 04, 2008Professor Linda Mullenix (Texas) is publishing a second edition of her seminal casebook, Mass Tort Litigation: Cases and Materials. The first edition was published in 1996, and a supplement followed in 2000. That's quite a while for such a fast-moving...
Vioxx Settlement Update
Posted on March 04, 2008Today?s Wall Street Journal reports that enough claimants have agreed to Merck?s Vioxx settlement proposal to keep the deal alive. Eighty-five percent of eligible claimants had to enroll by Friday and more than ninety-three percent have joined thus far...
ABA Mass Torts Litigation Committee Winter 2008 Newsletter
Posted on March 04, 2008The ABA Mass Torts Litigation Committee has posted its Winter 2008 newsletter, which includes the following articles: Let Data Speak Equally to All: The Increasing Importance of Raw Data in Litigation and a Proposal for Principles Governing the Production, Protection,...
Warner Lambert - Opinion Below Affirmed Without Opinion
Posted on March 03, 2008The no decision decision: BNA reports that an equally divided court affirmed the ruling of the Second Circuit, which had held that the FDCA does not preempt product liability claims under Michigan law against drug manufacturers that allegedly defrauded the...
Heparin Recalled
Posted on March 03, 2008Baxter International, the manufacturer of heparin, issued an urgent nationwide voluntary recall of its blood-thinner, Heparin. According to the New York Times, there were problems with a Chinese plant that supplied an active ingredient. Here?s a link to the FDA?s...
Ted Frank Commentary on Exxon Valdez Oral Argument in U.S. Supreme Court
Posted on February 29, 2008FDA Proposes Guildelines That Would Allow Industry to Provide Information on Off-Label Uses
Posted on February 16, 2008Lerach Sentenced to Two Years Prison for Alleged Kickbacks to Class Representatives
Posted on February 12, 2008FDA Says Connection Between Chantix & Serious Psychiatric Problems "Increasingly Likely"
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As of right now i am currently residing in a federal halfway house and wish to pursue a 28 U.S.C.1331 civil action lawsuit which initially began in 2003 to the present date.if the litigation is still continuing,can i sti
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