“Fore!” That’s a word shouted as a warning on golf courses when it appears that a ball might strike a hapless spectator or other golfers. Somebody should have shouted that at us before we included in last Monday’s post a bit of harmless (so we thought) defamation of the number 4. In particular, we quoted
We believe in personal responsibility. That’s one reason why we’re even more offended about the Mirapex litigation than about most other pharma/medical device lawsuits. These plaintiffs try to blame a drug for their own atrocious conduct. Thus we’re pleased to note that in Scelta v. Boehringer Ingelheim Pharmaceuticals, Inc., slip op. (8th Cir. Dec.
We would all go down together!! We can’t help being reminded of the chorus of Goodnight Saigon when we think about consolidated trials in mass tort cases. Given the availability of bellwether plaintiff procedures, like we blogged about yesterday, there’s no valid reason for consolidating trials of more than one plaintiff in a tort case not involving a common accident. “[A] few test trials . . . may produce more settlements than would a lengthy and complicated trial of consolidated cases.” In re Northern Dist. of California, Dalkon Shield IUD Litigation, 693 F.2d 847, 854 (9th Cir. 1982).
No reason at all – except to prejudice the defendants.
We know it – that’s why we fight any attempt to consolidate cases for trial tooth and nail. The other side knows – that’s why they propose consolidation for trial as a “time saving” measure any chance they get, even though it’s never been shown to save any time and only creates a host of appellate issues. The courts know it – that’s why consolidation of tort cases for trial mostly seems to happen in jurisdictions with pro-plaintiff reputations, such as West Virginia (notorious for the largest consolidations), South Florida, Atlantic County, NJ, and, yes, Philadelphia, Pennsylvania.
Consolidation takes us all down together. It invites juries to decide cases on improper bases – that all these people wouldn’t be suing unless something was wrong. It confuses juries with masses of plaintiff-specific facts and invites averaged verdicts (more about that to come). It makes proper application of the state of the art defense impossible due to different plaintiffs using products at different times. For the same reason it makes exclusion of subsequent remedial measures impossible as well, since what’s “subsequent” to one plaintiff isn’t subsequent to another. And in cases where punitive damages are sought, consolidation of multiple plaintiffs into one trial is, in our view, a per se violation of Philip Morris USA v. Williams, 549 U.S. 346 (2007). More on that, too.
Consolidation’s been on our brain a bit, you might say.
That’s why we’re beyond pleased by the recent decision in Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., ___ So.3d ___, 2010 WL 4870149 (Fla. App. Dec. 1, 2010), reversing a consolidation-tainted verdict from South Florida. Agrofollajes involved a bunch of Costa Rican fern growers who, attracted by the lush South Florida litigation climate, brought claims that Du Pont’s Benlate fungicide (a once widely-used product that’s unfortunately become a Bendectin-style “tortogen”/“litigen”) damaged their ferns. The claims of 27 different businesses – good ones, bad ones, tall ones, short ones, fat ones, skinny ones – were all consolidated into one big three-ringed circus of a trial.Continue Reading Goodnight Saigon, San Jose, and Yerevan
One inescapable fact of life in mass tort litigation is the bellwether trial. In almost every mass tort, at least in federal court, the judge tries to select a representative cross section of the actions that have been filed in order to get a handle on the validity, and thus the value, of the cases
The American Tort Reform Association released its annual judicial hellholes ranking, and Philadelphia is ranked as #1. The primary reason cited for this ranking was the performance of the Philadelphia Court of Common Pleas Complex Litigation Center, which handles mass torts and other big, complex cases.
In Philadelphia, where attytood is everything, we usually revel
The FDA Law Blog…. That’s right, we blew it. Mensing wasn’t reconferenced, rather certiorari was actually granted – contrary to the advice of the solicitor general, and without any circuit split. We relied on SCOTUSblog as holy writ and it turns out it was wrong (they’ve updated, too).
Anyway, the Supreme Court has agreed
It’s called “class action” litigation, but there’s no class. Why? Because of the individual issue of reliance/causation. While the court hasn’t ruled on class certification, the court just dismissed the claims of all but two of the supposed “class” plaintiffs for failure to prove causation as a matter of law. Seems that – surprise of
Those of you following preemption in generic drug cases will be interested to note that the Mensing case, where the Court asked the SG for the government’s views on the subject, was relisted for the Court’s 21/15 conference, after having originally been considered last Friday. How do we know? Well, if SCOTUSBlog says it,
Routine dismissals of pharma cases based on the statute of limitations don’t get on our radar screen. They’re too state and fact specific. But the statute-based dismissal in Lewandowski v. Bayer, 2010 U.S. Dist. Lexis 128951 (S.D. Fla. Nov. 15, 2010), a case arising in the Trasylol MDL, has several features that take it out