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Dispute Over Lien Administrator Resolved in Vaginal Mesh Suits

Submitted by Amaris Elliott-Engel on Tue, 03/04/2014 - 20:07

I'm blogging several times a day about products liability for Law.com and The National Law Journal. Occasionally I cross-post an excerpt of a blog I find interesting.

The federal judge presiding over 40,000 vaginal-mesh cases has appointed Garretson Resolution Group to resolve liens asserted in all six consolidated multidistrict litigation.

Medicare is mandated by federal law to seek repayment for treatment it has provided to allegedly injured patients.

Nonparty Humana Inc., on behalf of itself and other Part C Medicare Advantage organizations, had asked U.S. District Judge Joseph Goodwin to bar Garretson from negotiating the waiver of reports to federal regulators about settlements.

Were those required reports waived, it would be impossible for Humana and the other organizations to identify settlements and pursue secondary payments from pelvic mesh defendants, the company argued. Humana and the other organizations are private health insurers who receive money from the government to provide Medicare health-care plans.

Federal law makes Medicare the secondary payer for medical services provided to its beneficiaries if there is another party responsible—such as a defendant who committed the tort that caused the beneficiaries' need for medical treatment.

Humana, however, withdrew its request. The order entered by Goodwin and proposed by the plaintiffs was adjusted so that Garretson could not negotiate the waiver of reports to federal regulators about settlements. According to Goodwin's order, Garretson’s role is limited to, among other things, creating processes to ensure payment to the Centers for Medicare & Medicaid Services.

Asbestos MDL Judge Advises Against Case Consolidation

Submitted by Amaris Elliott-Engel on Fri, 02/21/2014 - 13:36

I'm blogging several times a day about products liability for Law.com. Each day I cross-post an excerpt of the day's blog I find most interesting.

Mass torts cases must not be aggregated, and plaintiffs must provide facts to support their claims through expert reports, in order to avoid having nonmeritorious cases clogging the court process, says the federal judge presiding over the federal Asbestos Multidistrict Litigation for 5.5 years.

Asbestos MDL-875 has been the largest MDL in terms of claims and cases, wrote U.S. District Judge Eduardo C. Robreno in an article published in the Widener Law Journal.

The consolidation of large number of cases not only raises due process issues by forcing parties to litigate or settle cases in groups, but incentivizes “the number of cases that can be filed, not the relative merit of the individual case,” Robreno said.

Asbestos litigation has grown to over 186,000 cases and more than 10 million claims. Only 2,979 cases are still in the MDL.During his tenure presiding over the MDL, Robreno reported he decided 528 summary judgment motions, 59 issues of substantive state law, 16 issues of federal substantive law and 16 issues of federal procedural law.

Consolidating cases also did not work to resolve the MDL, Robreno said, adding it was an open question whether a national MDL was necessary to resolve the claims.

One of the reasons aggregations of cases did not work to resolve the cases was that class certification was rejected by the Third Circuit and then the U.S. Supreme Court, Robreno said. The first asbestos MDL judge, Judge Charles R. Weiner, tried to settle the claims of 250,000 to 2 million individuals who had been exposed to asbestos. The settlement was rejected on appeal because of the “Supreme Court's concerns over the manageability of such a mixed and large class, as well as the inability of the class mechanisms to deal with the issue of future claimants,” Robreno said. Federal legislative fixes also failed.And when aggregation failed, the court and the parties did not return to the task of handling the cases on an individual basis, Robreno said. “This stage of litigation led some litigants to refer to MDL875 as a 'black hole,' where cases disappeared forever from the active dockets of the court,” he wrote.

While, “as a matter of judicial culture, remanding cases is viewed as an acknowledgment that the MDL judge has failed to resolve the case, by adjudication or settlement, during the MDL process,” Robreno said he turned away from that mindset and set a “rigorous schedule” for hearing summary judgment motions and issuing decisions.

Due to bankruptcies by the companies that made asbestos, litigation has shifted to bankruptcy courts and to the makers and suppliers of components that contained asbestos, including manufacturers or suppliers of brakes, turbines and packing. “In sum, the time between the filing of motions for summary judgment and the panel's issuing a remand order was 74 days,” he said.

More than 600 cases have been remanded to 59 districts. Most of those cases resolved without the need for a trial on the merits.

There also is an issue of fraud in asbestos fraud, Robreno said, with doctors acting as litigation consultants and making positive findings “often upwards of 50% and in some studies as high as 90%, suggesting that the readings may not be neutral or legitimate.”

Freeh Opposes BP's Demand for Claims Report Documents

Special master Louis Freeh found that an official involved in the administration of settled claims over the BP oil spill frequented a New Orleans bar that received $500,000 in oil-spill compensation and mishandled an email regarding the claim, the National Law Journal reports. While Freeh recommended procedural changes, BP wants witness statements and transcripts, NLJ reports. Freeh and plaintiffs lawyers oppose that request.

BP Loses Appeal of Oil Spill Settlement

The Fifth Circuit has upheld the multibillion settlement of the claims of the residents and businesses impacted by BP's oil spill in the Gulf of Mexico, The Washington Post reports. BP had objected to the approval of the settlement by arguing "that U.S. District Judge Carl Barbier and court-appointed claims administrator Patrick Juneau have misinterpreted settlement terms in ways that would force the London-based oil giant to pay for billions of dollars in inflated or bogus claims by businesses," The Post further reports. BP argued that the class of claimants could have included people who didn't actually suffer any injury due to the oil spill.

Patients Frustrated With Hip Implant Mass Tort Settlement

The New York Times reports on plaintiffs who are frustrated with a proposed $2.5 billion settlement for an estimated 8,000 lawsuits involving the all-metal hip device known as the Articular Surface Replacement or A.S.R., including that lawyers are set to receive one-third of the settlement, or $800 million.

Philadelphia's Lull in Mass Torts Continues (But Out-of-State Drug Plaintiffs Tick Up 5%)

The Legal Intelligencer (my journalism alma mater) reports on the continuing trend of the reduction in mass torts in the Philadelphia court system. Court leaders, however, have seen a 5% uptick in filings by out-of-state plaintiffs suing over the pharmaceutical drugs they took.

One attorney told The Legal that more vigorous regulation by the Obama administration may have led to fewer tort lawsuits. "Obama has been more proactive in putting out more label changes, warning physicians about the side effects of prescription drugs. That takes away a lot of the failure-to-warn claims," plaintiffs attorney Sol Weiss said.
 

BP Wins Court Victory Over Gulf Oil Spill Claims Administration

A federal appellate court, divided 2-1, has ordered the trial judge presiding over the settlement of Gulf of Mexico oil spill lawsuits to reconsider the formula used to calculate claimants' damages, The New York Times reports. "BP has repeatedly complained about the claims process, arguing that the program’s administrator, Patrick Juneau, was approving fabricated payments for business economic losses based on an unsound interpretation of an agreement the company reached with victims last year," The Times also reports.

Circuit Split Set Up Over Mass-Torts First Impression Issue?

The Philadelphia Inquirer reports that a Ninth Circuit opinion "is the latest in a debate about whether multiple lawsuits alleging harm to patients from the same pharmaceutical product should be heard in state courts or federal courts."

According to the opinion in Romo v. Teva Pharmaceuticals, at issue was whether it was appropriate to remove mass torts to federal court under the Class Action Fairness Act's provisions for federal removal of "mass actions" when the claims of a 100 or more plaintiffs involve common questions of law or fact that the plaintiffs propose to try jointly.

The district court remanded to state court involving plaintiffs who say they were injured by the ingestion of propoxyphene, "an ingredient found in the Darvocet and Darvon pain medications, as well as in the generic brand counterparts," the majority opinion said. The Ninth Circuit majority agreed with the district court the plaintiffs' petition for coordination wasn't a proposal to try the cases jointly, only for coordination of discovery and other pretrial matters.

In contrast on the same issue of first impression, the Seventh Circuit in In re Abbott Laboratories involved plaintiffs seeking consolidation through trial, the Ninth Circuit majority said.

The majority also said in a footnote that a three-judge panel doesn't have the authority to revisit circuit precedent decided in 2009 case of Tanoh v. Dow Chemical Corp. that there is a presumption against removal to federal court, that any uncertainty should be construed in favor of remand, and that the proposal to try claims jointly must come from the plaintiffs. The Chamber of Commerce and others argued as amici, the majority's opinion said, that "we should revisit Tanoh and that it has lost its precedential value, urging that plaintiffs should not be able to structure their complaints to avoid federal jurisdiction in light of the purposes of CAFA to curb class action and mass action abuses that have occurred in state courts," the footnote in the opinion said. But the majority also said it approves of Tanoh and that other circuits, including the Seventh Circuit in Abbott, have cited it.

In contrast, the dissent said that the majority "creates a circuit split, for practical purposes, with the Seventh Circuit's decison in Abbott."

"If plaintiffs are masters of their complaints and can plead in a way to avoid federal jurisdiction, they remain free to 'game' the system to some degree, including by joining less than one hundred plaintiffs in many suits in state court, so long as those cases are separate," the dissent said. "... That leads me to recognize that the issue here, stated more precisely, is whether when plaintiffs seek to coordinate under California law many state actions, and urge the state court that coordination is necessary to avoid inconsistent judgments, that is a proposal for joint trial within the meaning of CAFA."

The full Ninth Circuit opinion is here: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/24/1356310_opn&di...
 


 

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