Our abiding skepticism about multidistrict litigations (MDLs) is redeemed — a little — by the recent decision in In re CPAP, 2024 U.S. Dist. LEXIS 25528 (W.D.Pa. Feb. 14, 2024). The Lexis printout of the opinion is not nearly as long as it looks. More than half the pages merely list the attorneys. Lots
Discovery is not a one-way street. Most plaintiffs concede that much. But they push hard to make defendants travel down a super-highway while traffic from plaintiffs bumps along an unpaved country lane. The truth is that it will never be an even playing field in drug and device litigation, or any corporate litigation. Defendants are…
Abuse of substantive law as a weapon to force settlement occurs so frequently in multidistrict litigation (“MDL”), that we’ve given it a name – “the MDL treatment.” The linchpin of the MDL treatment is that plaintiffs are allowed to take way more liberties with state law than the Erie doctrine allows. Readers can recall from our prior posts that both the Supreme Court and Third Circuit (to take the relevant example), view expansive federal court “predictions” of state law – and state tort law in particular – usurp the prerogatives of the states and are an abuse of power. Continue Reading CPAP MDL Overinflates Plaintiffs’ Claims
In 1919, J. Edgar Hoover described Communism as a “conspiracy so vast” that it was impossible for the populace to comprehend it. The Palmer Raids and the first Red Scare soon followed.
That phrase echoed in our minds when we first read In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2023 WL 1818922 (D.N.J. Feb. 8, 2023). The Valsartan opinion was similarly mind-boggling in its scope. It certified not one, not two − but four class actions: one for economic loss, one for third-party payors (“TPPs”), and two for medical monitoring (“remedy” and “independent claim”). Id. at *3. Compare that to the state of class action precedent in product liability litigation not too long ago when we made this statement in 2007:
As far as we know, there has not been a single contested class action in product liability, personal injury litigation that’s been affirmed anywhere in the federal system in the decade since the Supreme Court put the kibosh on such things with its Ortiz and AmChem decisions. That’s not limited to just pharmaceuticals, that’s every kind of product that’s made.
Four in a single MDL order? These class certifications glommed together no less than 111 consumer and TPP subclasses. Valsartan, 2023 WL 1818922, at *24. These class certifications combined 428 different pharmaceutical products, produced and marketed by 28 separate defendants, with claims governed by the laws of 52 separate jurisdictions. There’s no way on earth that common issues could predominate over individual ones, or that this morass could possibly be tried to a jury.Continue Reading An Abuse of Discretion So Vast…. Our Long-Delayed Critique of the Valsartan MDL Class Action Certifications
As we mentioned in our recent American Law Institute (“ALI”) medical monitoring post, the other side is engaged in an ongoing attempt to ram recognition of a new tort for recovery of medical monitoring expenses by plaintiffs with no present injury (“no-injury medical monitoring” for short) through the ALI. One aspect of Bexis’ activity in opposition to that was to conduct detailed 50-state analysis of no-injury medical monitoring, once we determined that the ALI reporter’s material was both biased and incomplete. We stand behind our research and have nothing to hide. Thus, there’s no reason for us not to make this same information available to our blog readers, so that’s what we’re doing here. For long-time subscribers to the blog, please consider what follows to be an update to, and replacement of, our 2009 50-state survey on medical monitoring – ironically also prompted by ALI-related activity.
For several years, we have blogged about the controversy over whether the American Law Institute (“ALI”) should put its Restatement Third of Torts imprimatur on no-injury medical monitoring. Here’s the latest update, as that effort nears culmination. As reported by the ALI, on Monday May 22, at the Institute’s 100th Anniversary annual meeting:Continue Reading Always Liability Increases (ALI)? Not Yet with Medical Monitoring.
One of the most fundamental limitations on tort liability – all tort liability – is that a plaintiff must suffer an injury before s/he can bring a lawsuit. As Judge (later Justice) Benjamin Cardozo, held “[p]roof of negligence in the air, so to speak, will not do.” Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 99 (1928) (citation omitted). Or, as Professors William Prosser and Page Keeton, put it in their treatise:Continue Reading Live Free, or at Least Have a Present Injury
That’s the main lesson of the emerging fiasco that is the ALI’s benignly named “Concluding Provisions” project for the Restatement Third of Torts. While this title suggests that the Institute is merely engaged in routine “mop up” work, nothing could be further from the truth. Any number of significant tort-related topics were not addressed by…
Still more Zantac MDL dismissal orders.
Today’s installment grants dismissal of the plaintiffs’ medical monitoring claims, and also sheds some light on the questionable factual basis of everything being asserted in this MDL. As we’ve pointed out in our prior posts (such as this one), plaintiffs allege that the active ingredient in this drug…