Multidistrict Litigation

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

Plaintiff's lawyers in a bellwether trial over whether Eli Lilly and Company's Actos drug causes bladder cancer allege that a witness for defendant Eli Lilly has committed perjury and have asked for the court to issue a default judgment as a consequence.

The plaintiff's counsel also allege that the witness committed “contumacious” conduct, or conduct that is willfully disobedient to the court's authority.

Plaintiff's counsel allege that Ronald Hoven, former senior director for global marketing at Eli Lilly, committed perjury and disobedience to the court's authority because he “expressed a stunning lack of knowledge throughout his adverse witness examination by plaintiffs.” In contrast, Hoven submitted a declaration in a state-court lawsuit about Actos that he had personal knowledge about issues involving the drug, plaintiff's counsel said.

For example, the plaintiff's lawyers said in court papers that Hoven said he had no knowledge that there was a change to the Actos label to include a bladder-cancer warning even though it is a drug “for which he was previously a brand leader, about which thousands of lawsuits across the country have been filed, and for which he received a litigation hold.”

In another example, the plaintiff's lawyers said “Hoven denied having any knowledge of Upjohn backing out of the approval process of Actos due to safety, even though Upjohn's withdrawal was a direct windfall for Eli Lilly to step in and control the United States marketing aspect for Takeda from 1999 to 2006 in addition to being a long-term global partner that continues to reap the benefits from the sales of Actos.”

Takeda Pharmaceuticals North America, Inc., is a codefendant in the case of Allen v. Takeda Pharmaceuticals going through a trial in the U.S. District Court of the Western District of Louisiana.

In a third example, the plaintiff's counsel allege that Hoven committed perjury by denying involvement in Zyprexa, a drug on which Eli Lilly entered a corporate integrity agreement with the Department of Health and Human Services' Office of Inspect General for illegal marketing.

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

The Mississippi Supreme Court has ruled against a plaintiffs' attorney for the second time in a dispute with two former clients over who owes money for discovery undertaken on the behalf of all plaintiffs in the massive federal diet-drug litigation.

Herbert Lee Jr. represented 13 plaintiffs who settled their claims that they were injured by taking diet drugs for around $32 million, according a recent opinion by Justice David Chandler. Lee agreed that six percent of the “gross amount of recovery” of each of his clients would be paid for the discovery materials generated in the diet-drug multidistrict litigation in the Eastern District of Pennsylvania.

Lee, however, billed the $1.92 million MDL fee to the plaintiffs. The federal court ordered one-third of all “common benefit fees” refunded.

Plaintiffs Gloria Thompson, who was paid $7.4 million in her settlement, and Deborah Dixon, who was paid $3.1 million, sued Lee, arguing that he had failed to refund their portion of the MDL fee and that his attorney fee exceeded their contingency agreements by 5 percent. Lee retained 45 percent of the MDL refund and refunded each of his 13 clients 1/13th of the remaining 55 percent.

When the case got to the Mississippi Supreme Court for the first time, the court upheld the plaintiff's victory in the trial court on the MDL fee. The Supreme Court said that the federal court required the MDL fee to be paid by attorneys and that Lee “erroneously had billed the MDL fee to his clients.”

During trial on remand, the jury found that Lee breached his 40 percent contingency fee contracts with his clients by charging them 45 percent. Still, the panel returned a verdict for Lee, finding that the plaintiffs had ratified a 45-percent fee by signing their settlements free from intimidation, coercion or fraud. Still, the trial judge determined that Lee owed plaintiff Thompson $420,000 and plaintiff Dixon $180,000 for the MDL fee.

During Lee's second appeal to the Mississippi Supreme Court, the court rejected Lee's arguments that the plaintiffs “fabricated that the original contingency-fee agreements provided for a 40-percent fee,” not a 45-percent fee as he claims. The plaintiffs contended at trial that Lee forged retainer agreements providing for a 45 percent fee.

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.”