The lawsuit brought by financier Amir Shenaq against mass-torts law firm AkinMears has made the rounds of the tort reform blogs (e.g., SETexas Record, Daniel Fisher at Forbes, and Paul Barrett at Bloomberg), so I figured some plaintiff-side commentary was in order. The details of the lawsuit confirm what I’ve been saying for years: “Mass torts is not an area in which you want to dabble and start throwing around discounts. It’s work, it’s risky, and it can be very, very expensive.”

 

In essence, a former hedge fund executive filed suit against the law firm claiming that he was hired to raise millions of dollars in funding so that the firm could acquire thousands of transvaginal mesh lawsuits. He alleges that he brought in the funding (through his connections in the finance world), but, once he did, the firm fired him.

 

Shenaq’s complaint was filed publicly then sealed by the court. As Forbes recounts, the Complaint alleges:

 

“AkinMears is not run like a traditional plaintiff’s law office, and the Firm’s lawyers do not do the types of things that regular trial lawyers do,” like meet clients, file pleadings and motions, attend depositions “or, heaven forbid, try a lawsuit,” Shenaq claims in his suit. “Despite the fact that AkinMears’ lawyers do not have to dirty their hands with the mundane chores that come with actually practicing law,” the firm charges a 40% contingency fee “which is then divided in some fashion among the participants in its ever-shifting syndicate.”

 

And, of course, there’s also an allegation about the plaintiff’s lawyers buying themselves an interest in a private jet. Continue Reading The Lucrative Mass Torts Scam That Wasn’t

The transvaginal mesh litigation has for some time been the largest medical mass tort ever, at least as measured by filings in the federal multi-district litigation (MDL), which is currently being handled in the Southern District of West Virginia. There are over 42,000 cases in the MDL — more than the combined total of cases ever filed in the Prempro MDL (9,761), the Yasmin and Yaz MDL (11,423), the Vioxx MDL (10,319), and the DePuy ASR Hip Implant MDL (8,900). (See this chart under “Total Actions.”) Add to that the over 6,000 mesh cases pending in New Jersey state court, and numerous cases filed in other state courts, and there are nearly 50,000 transvaginal mesh claims pending in courts across the country against six different manufacturers.

 

So what are the courts supposed to do with that many cases?

 

There’s no shortage of inventive (and often problematic) suggestions for how to resolve mass torts cases, ranging from ‘offensive collateral estoppel’ to ‘statistical sampling of verdicts.’ (Naturally, defense-oriented interests are quite fond of coming up with “solutions” that are merely veiled ways either to drag the litigation on forever or to put insurmountable pre-trial barriers in front of plaintiffs.) But the only tried-and-true method is the one I mentioned a year and a half ago in “How Judges Can Settle Mass Torts Cases:” “defendants and their insurance companies don’t willingly make reasonable settlement offers. The only thing that brings them to the table is the immediate threat of trial. If judges want to resolve these cases, they need to move them along to trial.”

 

But when you’re talking about 50,000 medical device cases, that’s easier said than done. The federal courts conduct fewer than 3,500 civil trials each year.

 

So where can we look for guidance? The closest analogy to the transvaginal mesh litigation is the Diet Drugs litigation, which had roughly 20,000 claims filed in the federal MDL and about 12,000 filed in Philadelphia’s Complex Litigation Center, making it about three-fifths the size of the transvaginal mesh litigation. But some of the lessons learned there might not help us here, because that litigation was comparatively less complicated: the litigation was against a single company (Wyeth), and it involved products that the company had at least implicitly admitted were defective by way of withdrawing them from the market. In the transvaginal mesh lawsuits, however, there are four different major defendants — Ethicon, C.R. Bard, Boston Scientific, and American Medical Systems each have thousands of cases filed against them — and, not only do the defendants adamantly maintain that their products are perfectly fine, but many of the products are still on the market. There’s thus a potential, perhaps even a likelihood, for this litigation to grow endlessly as only a handful of claims are resolved each year while hundreds, potentially thousands, of new claims accumulate each year.

 

That scenario raises the question: is the transvaginal mesh litigation headed towards the same “black hole” in which the over 180,000 cases in the asbestos MDL sat for nearly thirty years? If so, how do we get out?  Continue Reading Why The Transvaginal Mesh Litigation Won’t Become A “Black Hole” Like Asbestos

The American Tort Reform Association’s Annual Report on “Judicial Hellholes” is out again.

Whoops, I mixed up my link — that’s a link to reasonable commentary by the Center for Justice & Democracy. The actual misleading, faux-scientific report is here. My take is similar to The Pop Tort’s ode to the judicial hellholes list:

Your courageous “Judicial Hellholes” report at long last draws attention to the many injustices corporations have to face day in and day out.  You have finally given a voice to the “mom and pop” tobacco companies, gasoline conglomerates, and insurance providers.

Philadelphia apparently takes #1 on the list primarily because it is one of the few major urban court systems without a substantial backlog in the disposition of cases, which the ATRA characterizes as “plac[ing] expediency over fairness.”

Justice delayed is justice denied, and if the ATRA stands for anything, it’s denying justice. That’s why the ATRA is so mad at Judge Sandra Mazer Moss and President Judge Pamela Pryor Dembe, mad enough to mention them by name: they keep the people’s courts moving forward in a timely, efficient manner.

According to the ATRA, conducting court in a just, speedy and efficient manner is not only wrong, but so wrong that it makes you the worst court system in the country. Better to let cases fester for years so that the plaintiffs’ continuing damages, and the costs and time of the plaintiffs’ lawyers on the case, make it impossible to continue, forcing them to take a smaller settlement.

It’s not worth addressing each of the remaining scattershot complaints. Here’s a sample: the ATRA claims “Verdicts over $1 million are up. The Pennsylvania courts report that the number of jury verdicts and judicial rulings of more than $1 million tripled in the Philadelphia Court of Common Pleas in the first half of 2010 compared to the same period in 2009.”

Read the link provided by the ATRA.

I dare you. Double-dog dare you.

It is indeed a report from the Pennsylvania Supreme Court, and it begins:

Chief Justice of Pennsylvania Ronald D. Castille today announced the release of state court system data on medical malpractice case filings and verdicts for 2009 that show a further decline in the number of lawsuits filed against health care providers statewide for a fifth consecutive year.

In addition to reporting a continuing decline in case filings and verdicts, it has nothing to do with 2010. It is limited to medical malpractice cases. It says that, in Philadelphia, in 2009, there were 33 jury verdicts for the defense, 3 verdicts for $500,000 or less, no verdicts between $500,000 and $1 million, and six verdicts between $1 million and $5 million.

For reference, most physicians in Pennsylvania have over $1 million insurance coverage, most of it subsidized by the state through the MCARE Fund. Thus, for all of 2009, there were six medical malpractice verdicts in Philadelphia that even approached insurance policy limits (and, as I mentioned before, even a verdict well in excess of insurance rarely means the plaintiff recovers more than the available insurance). If any of those cases also involved a hospital, then the verdict was nowhere near insurance policy limits.

Some hellhole.

But that’s enough fun for now; there’s a much more sinister side of this propaganda that can’t go without note.

Consider how the ATRA answers its own rhetorical question: What makes a jurisdiction a judicial hellhole?

While most judges honor their commitment to be unbiased arbiters in the pursuit of truth and justice, Judicial Hellholes judges do not. Instead, these few jurists may favor local plaintiffs’ lawyers and their clients over defendant corporations. Some, in remarkable moments of candor, have admitted their biases. More often, judges may, with the best of intentions, make rulings for the sake of expediency or efficiency that have the effect of depriving a party of its right to a proper defense.

What Judicial Hellholes have in common is that they systematically fail to adhere to core judicial tenets or principles of the law. They have strayed from the mission of providing legitimate victims a forum in which to seek just compensation from those whose wrongful acts caused their injuries.

That is, Philadelphia judges are “biased” to the point of “systematically fail[ing] to adhere to core judicial tenets or principles of the law.”

Why attack the judges personally, without any actual evidence of corruption or bias? Why not just criticize Philadelphia’s policies?

Because the ATRA doesn’t want to debate the merits. They don’t care about the law. They want to undermine public confidence in the judicial system — particularly the judges who run it — so that you citizens, voters, and jurors will think the whole system is unfair, and will bring those misunderstandings with you into the ballot box and the jury deliberation room.

Which is just what insurance companies and big businesses paid the ATRA to do.

Read more about our legal services at our Philadelphia personal injury lawyer page.

At The American Lawyer:

A federal judge in Manhattan has taken the extraordinary step of granting Chevron’s motion to depose a counsel for its adversaries in the massive toxic tort litigation over oil contamination in Lago Agrio, Ecuador.

Kaplan based his ruling on evidence Chevron produced from outtakes of the documentary "Crude," which chronicles the Lago Agrio case. He called the outtakes "extraordinarily revealing."

"The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs’ own consultants; and wrote some or all of the expert’s final report that was submitted to the Lago Agrio court and the Prosecutor General’s Office, supposedly as the neutral and independent product of the expert," Kaplan wrote.

Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.

Lawyers are trained from the day they arrive at law school to consider attorney-client privilege to be sacrosanct, and my initial reaction to this news was indeed surprise and outrage that a court would set that principle aside to benefit an oil company that spent years contaminating the drinking water of politically powerless people.

But the bigger picture needs to be considered. I’ve written before, back in discussing Mohawk Industries v. Carpenter (which considered whether attorney-client privilege issues are entitled to an interlocutory appeal) that attorney-client privilege is often overrated:

In one sense, the question we’re really asking is one of balance. Everyone would like to have every issue decided against them made immediately appealable. But we can’t do that; as the former judges’ brief notes, the courts are overworked as is, and, as the plaintiff’s brief notes, there are dozens of serious issues — like those affecting constitutional rights and criminal convictions — which are not immediately appealable.

Where does attorney-client privilege (involving discussions regarding a separate case) fit on the totem pole?

A little more than a year later, the Supreme Court decided that attorney-client privilege is important, but not that important: 

The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system. See, e.g., Richardson-Merrell, 472 U. S., at 426 (holding an order disqualifying counsel in a civil case did not qualify for immediate appeal under the collateral order doctrine); Flanagan v. United States, 465 U. S. 259, 260 (1984) (reaching the same result in a criminal case, notwithstanding the Sixth Amendment rights at stake). In Digital Equipment, we rejected an assertion that collateral order review was necessary to promote “the public policy favoring voluntary resolution of disputes.” 511 U. S., at 881. “It defies common sense,” we explained, “to maintain that parties’ readiness to settle will be significantly dampened (or the corresponding public interest impaired) by a rule that a district court’s decision to let allegedly barred litigation go forward may be challenged as a matter of favor.” Ibid.

We reach a similar conclusion here. In our estimation, postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege. Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.

(Emphasis added.) A similar dynamic is at play in the Lago Agrio case. The plaintiff’s lawyer’s attorney-client privilege must be weighed against the fact that two former Chevron lawyers are facing criminal charges in Ecuador, and the fact that the evidence in possession of the plaintiff’s lawyer is apparently unavailable elsewhere.

Moreover, the order is apparently limited to the pertinent issues, and doesn’t permit a fishing expedition into the attorney’s impressions of the case or contacts with his clients:

If Southern District of New York Judge Lewis A. Kaplan’s ruling Wednesday in In re Application of Chevron Corp., 10 MC 00002, stands, Chevron’s counsel from Gibson, Dunn & Crutcher and counsel for two former Chevron lawyers facing criminal charges in Ecuador will be able to ask lead plaintiffs attorney Steven Donziger questions, under oath, about his alleged attempts to influence a supposedly neutral expert appointed by the Ecuadorean court to offer a global damages assessment. The judge also has ordered Donziger to produce documents related to his interactions with the expert.

My only hope is that this isn’t a one-shot, defendants-win, plaintiffs-lose deal. If these rules will be applied equally — and thereby permitting plaintiff’s lawyers to depose defendant’s lawyers when the circumstances warrant — then we’ll all benefit.

Indeed, plaintiffs would likely benefit from a relaxed view of attorney-client privilege; after all, multinational corporations usually have a lot more to hide than injured plaintiffs do.

Hindsight is 20–20, or so defense lawyers like to say when their clients are caught poisoning thousands, sometimes millions, of people.

Such will almost certainly be the case once the class-action litigation over BPA finally heats up. The latest product to be found guilty of leeching the toxic pseudo-hormone into unknowing customers is ordinary point-of-sale receipts:

Cash register and other receipts may expose consumers to substantial amounts of bisphenol A, a hormone-mimicking chemical that has been linked with a host of potential health risks, according to a trio of recent studies.

On July 28, Warner and his colleagues at the Warner Babcock Institute for Green Chemistry in Wilmington, Mass., formally published their first data based on 10 receipts recently collected in the Boston area. Six contained 1.09 to 1.70 percent BPA by mass. Another two contained 0.30 to 0.83 percent BPA; the final pair had no measurable amounts. Their findings appear online in Green Chemistry Letters and Reviews.

A Swiss study published online July 11 in Analytical and Bioanalytical Chemistry assayed 13 European sales receipts. Eleven contained BPA in quantities ranging from 0.8 to 1.7 percent of the paper’s mass.

And that BPA rubbed off easily, notes study coauthor Koni Grob, an analytical chemist with the Official Food Control Authority of the Canton of Zurich. Just holding receipt paper deposited substantial BPA onto dry fingers.

Thankfully, it’s a minor problem:

Indeed, Grob says, “I think it’s a scandal that you can have people touching thermal paper all day long,” since the concentration of BPA in its surface coating could approach 10 percent pure BPA.

Frederick vom Saal of the University of Missouri in Columbia, who performed the BPA assays for a recent study by the Washington, D.C–based nonprofit Environmental Working Group, agrees with Grob.

“I won’t touch receipts now,” vom Saal says.

Or not.

So what are we supposed to do now, go about our daily lives wearing disposable latex gloves? Frankly, I wouldn’t mind that during cold and flu season, but something tells me cashiers are a bit suspicious of customers who don’t leave behind any fingerprints.

Hindsight, as they say, is 20–20. All of this research connecting BPA on receipts only came out last month, right?

Appleton Papers of Appleton, Wis., switched to one of them — bisphenol sulfonate — in 2006, notes Kent Willetts, a company vice president. As a steady stream of toxicity reports and research papers began pointing to potential health threats posed by BPA, “We decided that’s not a chemical we want to use.” EPA’s new partnership program lists the sulfonate as a potentially acceptable substitute, he notes.

Apparently not. Apparently some of the receipt manufacturers — for convenience, let’s call them the responsible manufacturers — recognized the danger more than four years ago, and so chose to make their receipts with a less toxic and less dangerous substitute.

And what was everyone else — for convenience, we’ll call them the irresponsible manufacturers — doing?

Attendees suggested using fear tactics (e.g. “Do you want to have access to baby food anymore?”) as well as giving control back to consumers (e.g. you have a choice between the more expensive product that is frozen or fresh or foods packaged in cans) as ways to dissuade people from choosing BPA-free packaging.

The committee doubts social media outlets, such as Facebook or Twitter, will work for positive BPA outreach. The committee wants to focus on quality instead of quantity in disseminating messages (e.g. a young kid or pregnant mother providing a positive quote about BPA, a testimonial from an outside expert, providing positive video, advice from third party experts, and relevant messaging on the GMA website). Members noted traditional media outreach has become too expensive (they have already spent hundreds of thousands of dollars) and the media is starting to ignore their side. The committee doubts obtaining a scientific spokesperson is attainable. Their “holy grail” spokesperson would be a “pregnant young mother who would be willing to speak around the country about the benefits of BPA.”

I see.

And they wonder why people want to sue them.