One panel at the Tulane MDL Symposium consisted of the triumverate of Judges Mark Davidson, Carol Higbee, and Janis Jack.
Judge Davidson handles the Texas statewide asbestos proceedings; his was an interesting talk, but this blog doesn’t worry too much about asbestos. We learned two things of broader interest that we’ll share.
First, the chair of the Texas MDL Panel says that he will appoint a judge to oversee a Texas statewide proceeding only if Southwest Airlines flies into the judge’s county. (Texas is a big state, and the Panel wants to be sure that litigants can get to court relatively easily.) Since Southwest flies into only 11 of Texas’ counties, there are far fewer potential transferee judges in Texas than you might have thought.
Second, the Texas statewide coordination procedure, like the federal MDL process, requires that, at the end of pretrial proceedings, cases be transferred back for trial in the county in which they were filed. Unlike in the federal system, however, the transferee judge makes all — as in all — pretrial rulings in Texas cases. The transferee judge decides motions in limine, the admissibility of evidence, and which video clips will be shown to the jury. Evidence not presented to the transferee judge is inadmissible at a later trial without the written consent of the transferee judge.
We also heard from Judge Carol Higbee, one of the three judges who handle New Jersey statewide coordinated proceedings that don’t involve asbestos. Judge Higbee has been no friend of preemption in her written opinions, and she put an exclamation point on her views during her talk: “I don’t care if you’re a plaintiff or a defendant. If you’re an American, the idea [of letting the FDA alone regulate drug safety] is pretty scary.”
Finally, Judge Jack. Judge Jack told the story of the silica litigation that is by now familiar to all lawyers involved in mass torts. As of 1999, existing scientific data suggested that one would anticipate roughly eight new silicosis cases per year in Mississippi. One would expect about 1200 new silicosis cases per year throughout the entire United States. In 2002, however, 10,642 new silicosis claims were filed in Mississippi. In 2003 and 2004, an additional 7,228 and 2,609 claims were filed. In the aggregate from 2002 through 2004, the new silicosis claims filed in Mississippi were over five times greater than the total number of silicosis cases one would have expected during that period throughout the entire United States.
If the Mississippi claims were legitimate, this was a silicosis epidemic of epic proportions. And yet no public health authority — OSHA, the CDC, NIOSH, the AMA, or anyone else — had noticed. Something was rotten in the State of Mississippi.
Judge Jack conducted a hearing during which several physicians who had diagnosed the plaintiffs with silicosis withdrew their diagnoses. She sanctioned the culpable players and largely put the silica litigation to rest.
[We have intentionally deleted the remainder of this post.
If you type enough words, eventually you’ll say something that you regret.
We did. We do.
Now it’s gone.]