Mass Torts

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It’s been two years since the First District California Court of Appeals issued its ill-founded decision in Bristol-Myers Squibb Co. v. Superior Court, 175 Cal. Rptr. 3d 412 (Cal. App. 2014), which used specific personal jurisdiction to accomplish what the United States Supreme Court had, only six months earlier, condemned as “grasping” and “exorbitant” when attempted through general personal jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  We immediately blogged about that decision in our “Hotel California” post – describing the California court’s rationale in considerable detail.

Fortunately, the California Supreme Court promptly granted an appeal, which we duly noted here, of the following two questions: “(1) whether after Daimler AG v. Bauman, 571 U.S. ––––, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), general jurisdiction exists; and (2) whether specific jurisdiction exists.” Bristol-Myers Squibb Co. v. S.C., 337 P.3d 1158 (Cal. 2014).

Thereafter “prompt” dropped out of the lexicon.

But today the wait is over.  The California high court has answered the two questions “no” and “yes.”  This latter ruling – a 4-3 decision − is almost certain to be appealed to the United States Supreme Court, as it creates a form of “specific” jurisdiction in mass tort cases that is every bit as “grasping” and “exorbitant” as that rejected as a Due Process violation in Bauman.  See Bristol-Myers Squibb Co. v. Superior Court (Anderson), S221038, slip op. (Cal. Aug. 29, 2016) (hereafter Anderson). Anderson involved mass tort litigation in California against a defendant that was neither headquartered nor incorporated in California, nor had any peculiar ties to the state.  The plaintiffs in question were also nonresidents of California, so the jurisdictional questions boiled down to whether California can constitutionally provide a forum for non-resident plaintiffs to sue a non-resident defendants.

This is quite apart from the practical question of why, given the severe funding crisis everyone recognizes as facing the California judiciary, California taxpayers should be burdened by thousands (or more) of suits by non-residents against non-residents.Continue Reading Breaking News – California High Court Expands “Specific” Personal Jurisdiction To Recreate “Exorbitant” Personal Jurisdiction Rejected by Daimler v. Bauman

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We appreciate being on Joe Hollingsworth’s mailing list – we really do.  Much of the Aredia/Zometa stuff he sends us is manifestly blogworthy.  That, and all things being equal, we’d rather discuss a defense win than a defense loss.  Joe doesn’t send us his bad ones (although certain plaintiff lawyers do pass…

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We’ve seen a couple of interesting cases lately involving global mass tort settlements and subsequent plaintiffs’ attempts to avoid them.  A few days ago we read Juris v. Inamed Corp., ___ F.3d ___, 2012 WL 2681445 (11th Cir. July 6, 2012) (slip op. here), where a plaintiff tried to get around the…

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Ediscovery is dreadfully expensive.  Plaintiffs are dedicated to keeping it that way, as they know that anything that drives up a defendant’s litigation costs (and mass tort ediscovery falls disproportionately on defendants) increases the settlement value of even meritless cases – and any mass tort has lots of meritless cases.

All too often judges, not…

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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…

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About 18 months ago we posted a 50-state survey on state law regarding informal defense interviews with treating physicians of plaintiffs in personal injury cases. Under “New Jersey,” we noted that the state’s supreme court had specifically approved the practice in Stempler v. Speidell, 495 A.2d 857, 864-65 (1985). However, we went on to note:

However, parts of New Jersey have become “judicial hellholes,” and in some mass torts, New Jersey trial courts have systematically ignored Stempler, and refused to allow informal interviews at all.  E.g., Smith v. American Home Products Corp., 855 A.2d 608, 625 (N.J. Super. 2003).

Well, if anything that was an understatement – and it’s only gotten worse.

To put things in context, first let’s review Stempler.  It was a medmal, wrongful death case.  A dispute arose over the language of some authorizations for release of information by the plaintiff’s (technically, the plaintiff’s decedent, since it was a death case) treating doctors.  The defendant doctor’s counsel wanted informal interviews, but the plaintiff’s counsel crossed out that language and inserted other language that prohibited such interviews.  The trial court granted the defendant’s motion to compel the interviews.  After that, the New Jersey intermediate appellate court didn’t accept the interlocutory (for you non-lawyers, that means a request to appeal a non-final order that’s not otherwise appealable), but the New Jersey Supreme Court did. See generally Stempler, 495 A.2d at 858.

Despite being in a pro-plaintiff phase in any number of other ways (medical monitoring, expert witnesses, consumer fraud, DTC exception, you name it) the New Jersey Supreme Court unanimously affirmed the right of defendants in personal injury cases to seek informal interviews with doctors who had treated the plaintiff, if such treaters were willing, and as long as notification was provided to opposing counsel.  See 495 A.2d at 864-65.Continue Reading Stempler And The Ongoing Usurpation Of The New Jersey Supreme Court

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Ask a defense lawyer whether it makes sense to conduct a direct examination of his (fact) witness at the end of a deposition taken by plaintiff’s counsel.

A few rare lawyers will say that they’ll do limited “clean-up work” at the end of the deposition, so that any obvious errors are corrected on the record…

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We tried to think of a great issue to explore today – and struck out. So instead we’ll discuss this and that – various things that we’re aware of, but that we haven’t gotten around to mentioning.

Pigs Get Fat, Mississippi Got Slaughtered

The top of the agenda, of course, is a review of Judge…

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Professor Howard Erichson, of Fordham Law School, has posted on SSRN (here) and discussed at the Mass Tort Litigation Blog (here) his new paper, “The Trouble With All-Or-Nothing Settlements.” Erichson’s thesis is that defendants’ demands for global peace in mass torts create ethical tensions.
The abstract describes the seven tensions:
“First,…

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Here’s more news from the academy that you might find to be useful:

First, Professors Kevin Clermont (Cornell) and Stephen Yeazell (UCLA) level both barrels at two of our favorite cases, Bell Atlantic v. Twombly and Iqbal v. Ashcroft. The “point of th[eir] Article is that wherever you stand on pleading — even if…

Drug & Device Resources

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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