Monday, August 11, 2008

Pining For Lone Pine

We posted last week about the Lone Pine order entered in the Celebrex litigation, and we received a few responses to that post.

Then we saw the letter from six drug companies to FASB, about which we posted on Friday.

The combination of those two things got us to thinking.

And if we've bothered to think about something, then we're sure as heck going to publish a post about it.

Here goes:

Why, we were asking ourselves, is it uniquely appropriate for judges to enter Lone Pine orders in mass torts?

Let us count the ways.

First, mass torts are characterized by indiscriminate solicitation of clients. (Don't just take our word for it. Take -- well -- our word for it: We said the same thing last year, so it must be true.)

When lawyers are soliciting widely for clients who have merely been "exposed" to a product, the lawyers are unusually likely to pick up some chaff along with the wheat. Lawyers will sign up clients who didn't even take the defendant's product, and who certainly weren't injured by it.

Second, because of the volume of cases involved, there's often little or no personal contact between plaintiffs' counsel and clients in mass torts. For a description of how a plaintiff's firm processes mass torts, read what George Fleming told an ABA Task Force on the subject:

"Plaintiffs' lawyers need many cases for mass torts to be profitable, but handling large numbers of clients is expensive. Plaintiffs' lawyer George Fleming made a presentation to the Task Force about how his practice is organized to be able to communicate with thousands of clients and conduct discovery efficiently in all their cases. He has 36,000 square feet of office space, 250 employees, 100 staff lawyers, receptionists who can answer the phone in three languages, and a computer system that is comparable to the one that Southwest Airlines uses to manage its reservations. He has 100 workstations equipped to enable a staff lawyer to conduct telephonic depositions. His practice requires 22,000 square feet of off-site storage and a staff of ten just to manage the flow of paper. To send one standard letter to each of his clients in one mass tort case he handled cost his firm $20,000 in printing and postage. It does not make sense to have just a few clients, but managing thousands of clients is expensive."

"Contingent fees in Mass Tort Litigation," Task Force on Contingent Fees of the American Bar Association's Tort Trial & Insurance Practice Section 112-13 (2004)

Third, when you combine widespread client solicitation with an absence of contact between client and counsel, there's very little assurance that a claim is legitimate. The system lacks even the usual (small) safeguard that a lawyer and client have sat down together to discuss the viability of a claim.

And mass torts, because of their massive nature, typically involve injuries that are found widely in the general population, such as heart attacks, strokes, and the like. Huge litigation doesn't typically involve "signature diseases," such as mesothelioma and angiosarcoma of the liver. Legitimate evidence of causation may therefore be hard to find.

Many cases filed in mass tort litigation thus lack merit. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1224, 1226 n.4 (9th Cir. 2006) (describing how court dismissed more than 850 claims when plaintiffs failed to respond to questionnaires seeking basic information underlying claims). Other cases filed in mass torts are simply fraudulent. See, e.g., In re Diet Drugs Prods. Liab. Litig., 381 F. Supp. 2d 421, 423 (E.D. Pa. 2005) (imposing sanctions when plaintiff alleged that she ingested drug seven years before it was on the market, from a prescription written by a fictitious physician and filled at a fictitious pharmacy).

Fourth, in mass torts, the cost of discovery is multiplied by the huge volume of claims.

Even in a one-off case, it's offensive to force a defendant to obtain written responses to discovery, collect medical records, depose plaintiffs and health care providers, retain experts, depose opposing experts, wait for discovery to close, and research and draft a motion for summary judgment to cause a court to dismiss a claim that was meritless or fraudulent from the start.

But multiply that offense times hundreds -- or thousands, or tens of thousands -- in mass torts, and the injustice becomes transparent. Courts should not force defendants to spend millions of dollars in discovery to weed out the vast number of meritless claims likely present in a mass tort context. Judge Rothstein's frustration in the PPA litigation was almost palpable when she said, "[T]he time has come to figure out which of these cases are real and which of them aren't." PPA, 460 F.3d at 1226. Since, in the end, one defendant in the PPA litigation paid money to fewer than 20 percent of the plaintiffs who filed claims against it, there's an awful lot of chaff in them thar wheat. Courts should winnow out meritless claims quickly.

Fifth, mass torts and multidistrict litigation are "a special breed of complex litigation where the whole is bigger than the sum of its parts. The district court needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line." PPA, 460 F.3d at 1232. There can't be any doubt that the trial courts' broad discretion to control mass torts includes the power to enter Lone Pine orders to put the plaintiffs to some level of proof early on in the proceedings.

Finally, precedent: Many courts overseeing mass torts have entered Lone Pine orders, so the courts' power to do so (and the logic of entering those orders) is grounded in ample case law. See, e.g., In re Rezulin Prods. Liab. Litig., MDL No. 1348, No. 00 Civ. 2843 (LAK), 2005 WL 1105067 (S.D.N.Y. May 9, 2005) (entering Lone Pine order); In re Baycol Prods. Liab. Litig., MDL No. 1431 (MJD/JGL), 2004 WL 626866, at *1 (D. Minn. Mar. 18, 2004) (entering initial Lone Pine order, which was later amended); In re: N.Y. Rezulin Prods. Liab. Litig., Master Index No. 752,000/00, Order (N.Y. Sup. Ct. N.Y. Co. July 7, 2004) (entering Lone Pine order in New York state court coordinated Rezulin proceeding); In re Baycol Litig., November Term, 2001, No. 0001, Order (Ct. Com. Pl. Phila. Co. Dec. 12, 2003) (entering Lone Pine order in Pennsylvania state court coordinated Baycol proceeding).

And that's not all! The MDL court entered a Lone Pine order in the Neurontin litigation, though we can't lay our hands on it at the moment; we've read a report (that link is to Product Liability Law 360 on August 8, 2008, in case you need a subscription to open it) about a Lone Pine order being entered in connection with the Vioxx settlement (now at 557 F. Supp. 741); and now you have the Lone Pine order entered in Celebrex, about which we posted last week.

That ought to be plenty to make the point to any judge: Mass tort judges should pine for Lone Pine.

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