DRI Class Action Seminar Continues

A highlight of the afternoon session was the panel involving "A Wide-Ranging Discussion of Class Actions from the Client’s Perspective."  Hosted by my partner Tim Congrove, doing his best Phil Donahue impersonation, the panel included experienced, articulate in-house counsel. Specifically, the panel brought to the stage Michael G. McQueeney , The Coca-Cola Company, Malini Moorthy , Pfizer Inc., and Laura E. Proctor , LP Building Products.  Each of these highly accomplished in house counsel manages a complex civil litigation docket that includes active proposed class actions, certified classes, settled classes, and/or other aggregate litigation.

The panelists shared class-related issues of importance to them and their companies, including tactics for defending multiple class actions across jurisdictions, addressing no-injury classes, and resolution strategies.  They talked a bit about what they expect from their outside counsel (thank goodness your humble blogger qualified on all accounts), and the important factors they consider in deciding to try a case where a class has been certified.

A particularly interesting part of the discussion was the panel's thoughts on tort reform, civil justice reform, and what to do about the many vacancies currently on the federal courts.

On the last point, Congress passed legislation authorizing additional judgeships in 1990. Since that time the district courts have experienced a 38 percent growth in caseload, but only a 4 percent growth in judgeships. In five especially busy federal districts, the Eastern District of California, the Eastern District of Texas, the Western District of Texas, the District of Arizona, and the District of Delaware, the judges face weighted caseloads that exceed 700 cases per judge. The Judicial Conference recommends a weighted caseload of 430 per judgeship. 

In August the ABA House of Delegates will vote on a proposed resolution supporting enactment of comprehensive legislation to authorize needed permanent and temporary federal judgeships, and urging the President to advance nominees for current vacancies for federal judicial positions promptly and the United States Senate to hear and vote on those nominations expeditiously.

 

DRI Class Action Seminar Underway

Your humble blogger is attending the DRI CLE seminar on class actions in our nation's capital, organized by my pal Jeff Holmstrand and my partner Tim Congrove, outstanding class action practitioners. 

The lead off speaker was Miguel Estrada, speaking on Comcast, which we have posted on before, as well as the aftermath

He offered some interesting personal observations about this important class action decision. Key take aways: individual damage questions can be a significant barrier to class certification under Rule 23(b)(3). A district court considering class certification must look at how damages will be tried and managed if a class is certified.  Is it a mere mathematical exercise, or are there factual issues that vary by class members? And the district court must conduct a rigorous analysis of the class plaintiff's proposed method for computing damages allegedly on a class-wide basis (which almost certainly will require a Daubert analysis in most cases).

Interesting observation: while it is unusual for a dissenting justice to read the dissent from the bench, in this case two justices did so.  One wonders whether that emphasis on the intensity of the dissent is inconsistent with the content of the dissent, which tried to argue that the decision could be limited to its facts, nothing big happened here, nothing to look at, keep moving...

Most lower courts are following and applying the Comcast decision.  E.g., Forrand, 2013 WL 1793951 (C.D. Cal.); TL Cannon, 2013 WL 1316452 (N.D.N.Y.).  see also the Martin case we posted on here.

One going the other way is Leyva in the 9th Circuit, 2013 WL 2306567, which performs gymnastics to read Comcast as stating only the proposition that a plaintiff must show the damages flow from the alleged illegal acts of the defendant.

 

 

Mass Tort Seminar Held in Philadelphia

Earlier this week I attended the Mass Tort Litigation Conference in my home base of Philadelphia; this is the annual conference chaired by former Judge Marina Corodemus, who was the Mass Torts Judge in NJ for several years.

Other faculty included Judge Lee Rosenthal, Judge Ed Kinkeade, and Judge David Katz; plaintiff's lawyers such as Sol Weiss and Chris Seeger; and various members of the defense mass tort bar. It was great to see old colleagues and meet some new folks.

The program followed a hypothetical mass tort, involving an allegedly defective medical device, through government investigations, Daubert/Frye issues, MDL and other coordinations, through to settlements. Of course, Shook Hardy has tons of experience with all aspects of medical device litigation.

Anyway, among the interesting tidbits: beware of the growing use by plaintiffs of "medical ethicists" to condemn defendant's conduct as not only negligent but unethical and evil; and plaintiff's use of "mind-reading" experts who profess to divine the intent of the defendant corporation by reading between the lines of the emails and other discovered documents. We have posted on this before.

Plaintiff's counsel talked a bit about their mass tort intake process and the "screening" they use on potential new cases.  One interesting observation was the great level of concern expressed over the issue of product identification, and how it can be exacerbated by multiple defendant manufacturers, multiple versions or designs in play, and when the nature of the product somehow makes easy identification impossible.

The e-discovery panel (can't have a seminar without one) talked about the draft principles in discovery across borders, out for comment from Sedona Working Group 6.  Readers with thoughts should weigh in.

 

 

DRI Product Liability Conference Wraps Up Today

The DRI Product Liability Seminar winds up today, with scheduled highlights including a presentation on the implications of Nicastro and Goodyear on future product liability litigation.  Readers know this is a topic of great interest at MassTortDefense, which we have posted on before a couple times.

Yesterday's highlights included discussions of the Third Restatement, and in-house counsel had a separate session on blogging.  Not the kind we do here, but the issues relating to corporate employees or the marketing department getting engaged in blogging relating to product promotion, building brand goodwill, and responding to customer questions or issues raised in the blogosphere.

Your humble author attended the session focused on Chemical and Toxic Torts, which featured an interesting presentation from Scott Scarpelli, Esq., of The Dow Chemical Company.  This veteran in-house litigator shared his perspective on the most vexing causation questions that arise in chemical-based litigation.

 

DRI Product Liability Conference Underway

This week I am attending the DRI Product Liability seminar.  Yesterday's highlights included a keynote address by Hon. Anne Northup, Commissioner of the Consumer Product Safety Commission.  Her remarks covered "The Past, Present, and Future of the CPSC."  She brings an interesting perspective, having formerly been a member of Congress.  As a mother of 6 kids and grandmother of 8, she feels well qualified to understand the use and abuse of children's products in particular. She emphasized that consumers value choice, a vibrant market, innovation and competition-- things that over-regulation can suppress.  She pointed to the onerous third-party testing requirements and record-keeping burdens in many of the recent CPSC rules.  She was cautiously optimistic that the continuing tough economy has given the majority Democrats on the CPSC some pause, as well as pointing to H.R. 2715 in which Congress told the Commission to simplify the burden of certification regulations.

I spoke at the session of the Mass Torts & Class Actions subcommittee, chaired by Glenn Kerner, on the topic of Medical Monitoring.  I tried to give the group some strategies to think about; e.g., recent federal cases have confirmed that the clarified pleading requirements of Twombly/Iqbal do apply to medical monitoring claims. E.g., Hagy v. Equitable Production Co., 2011 WL 1627920 (S.D. W.Va. April 28, 2011). That court dismissed the medical monitoring claim because plaintiff failed to allege sufficient specific facts showing the substance was hazardous, plaintiffs’ risk of future injury was a proximate result of the exposure, monitoring was reasonably necessary due to the increased risk, or that effective monitoring procedures exist. See also Bourgeois v. Exxon Mobil Corp., 2011 WL 6130767 (E.D.La. Dec.8, 2011).  I also touched on Jonathan Hirsch, et al. v. CSX Transportation Inc., 656 F.3d 359 (6th Cir. 2011), and its treatment of the exposure and risk elements of a medical monitoring theory.

Courts typically require that the prescribed monitoring regime is different from that normally recommended in the absence of exposure. One recent case exploring this notion which I pointed out  is In re Avandia Marketing, 2011 WL 4006639 (E.D.Pa. Sept. 7, 2011). In this class action involving the diabetes drug, the medical monitoring claim was denied because plaintiff failed to allege specific facts showing what medical monitoring would actually be needed because of exposure to the drug that would not already be recommended for some plaintiffs living with Type 2 Diabetes who did not take the drug.

Finally, I focused on Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011), in which Third Circuit said it would "question whether the kind of medical monitoring sought here can be certified under Rule 23(b)(2)." If the plaintiffs prevailed, class members' regimes of medical screenings and the corresponding cost would vary individual by individual. A single injunction or declaratory judgment would seem to not be able to provide relief to each member of the class proposed in this case. Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Wal-Mart, 131 S. Ct. at 2557.

Medical Monitoring Webinar Next Week

I wanted to remind readers know that I will be speaking in an upcoming Strafford live phone/web seminar entitled "Medical Monitoring in Products Liability Claims: Challenges for Plaintiffs and Defendants" scheduled for Tuesday, March 20, 1:00pm-2:30pm EDT.

We have posted on a number of medical monitoring issues before, and some observers think that the number of medical monitoring claims for future testing to provide for early detection of diseases based on alleged exposure to toxic substances is on the rise.

Courts in various jurisdictions hold different views on the recognition of medical monitoring claims, whether these claims are a cause of action or an issue of damages, and the elements of the theory.

My fellow panelists and I will provide practitioners with a review of defense and plaintiff counsels' perspectives regarding medical monitoring. My focus will be on medical monitoring class actions.

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly. I hope you'll join us.
 

You can register here.

 

Upcoming Webinar Worth Checking Out

I wanted to let readers know that I will be speaking in an upcoming Strafford live phone/web seminar entitled "Medical Monitoring in Products Liability Claims: Challenges for Plaintiffs and Defendants" scheduled for Tuesday, March 20, 1:00pm-2:30pm EDT.

We have posted on a number of medical monitoring issues before, and some observers think that the number of medical monitoring claims for future testing to provide for early detection of diseases based on alleged exposure to toxic substances is on the rise.

Courts in various jurisdictions hold different views on the recognition of medical monitoring claims, whether these claims are a cause of action or an issue of damages, and the elements of the theory.

My fellow panelists and I will provide practitioners with a review of defense and plaintiff counsels' perspectives regarding medical monitoring.  My focus will be on medical monitoring class actions.

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly.  I hope you'll join us.
 

You can register here

Products Liability Seminar Worth a Look

I am pleased to announce that I will be speaking at the upcoming DRI Product Liability Conference taking place April 11-13, 2012 in Las Vegas, Nevada.

I’ll be speaking on Wednesday afternoon, April 11th, as part of the session of the Mass Torts & Class Actions subcommittee.  The topic is Medical Monitoring. 

The conference will include many distinguished speakers, preeminent attorneys, and in-house counsel, discussing the current state of products liability law.  As if the excellent educational programs weren’t enough, this Products Liability conference provides a fantastic opportunity to network with hundreds of colleagues from across the country, both during the scheduled receptions and at informal evening social venues.

Brochure attached here. Registration here.

I look forward to seeing many of my faithful readers in Las Vegas.
 

Upcoming Mass Tort Seminar

We wanted to alert readers to the HarrisMartin’s Mass Tort Litigation Conference, chaired by Judge Marina Corodemus (Ret.). 

It is set for June 4, 2012 - in our home base of Philadelphia, PA, at the Ritz Carlton.

This year's focus is “A Post-Modernistic Deconstruction of a Mass Tort Medical Device Case.”  The agenda follows the anatomy of the mass tort, from shareholder suits, to government investigations; key science issues; MDL and class procedural questions; and a sprinkling of ethics and discovery, through to a panel on settlement.

The conference includes speakers from the judiciary, the government, industry, and the bar.

More info here.

 

Medical Monitoring Class Actions

Last week I spoke at a CLE seminar on "Chemical Products Liability & Environmental Litigation."  The seminar was ably co-chaired by Ted Ray from ExxonMobil and Eric Sarner from Praxair.

My topic was Medical Monitoring Class Actions, with an emphasis on the trend by plaintiffs to seek (b)(2) certification, describing the money damages they want defendants to pay for future medical testing as some sort of court-supervised program and thus injunctive/equitable in nature.

By popular demand (ok, a handful of requests), I am making some slides on the topic available here.  Hope readers of MassTortDefense find them a useful resource.

Seminar Worth Checking Out

A head's up for our readers about an upcoming seminar worth checking out. DRI’s Drug and Medical Device Committee will hold its 27th annual Seminar on May 5-6, 2011 at the Sheraton Hotel and Towers in Chicago, Illinois. 

 

The Seminar offers an outstanding program for practitioners and in-house counsel who practice pharmaceutical and medical device law.  The Seminar features nationally recognized attorneys, both in-house and outside counsel, who will speak on a variety of cutting edge topics relevant to the life sciences industry.  The program offers a variety of presentations including moderated panel discussions, individual presentations from leading practitioners and practical demonstrations of trial skills.  There is also a Young Lawyers Blockbuster session. 

 

In addition to the outstanding educational opportunities, the Seminar provides great networking opportunities to connect or reconnect with counsel and clients from around the country. Attendees may earn up to 12 hours of CLE, including 1 hour of ethics credit.

 

More information available here. 

 

Products Liability Conference Worth A Look

As you plan your CLE activities for 2011, consider DRI’s Product Liability Conference, to be held at the Hilton New Orleans Riverside, April 6–8, 2011.

This conference promises to provide you with insight from in-house counsel, government attorneys, and experienced practitioners regarding national trends and important recent decisions in the products area. The presentations will also provide creative practice tips and invaluable information that may assist you and your clients. This conference offers unmatched opportunities to keep abreast of current issues, earn CLE credits, and network.

Scheduled speakers include Cheryl A. Falvey, General Counsel for the U.S. Consumer Product Safety Commission, and Prof. Dane S. Ciolino, Loyola University New Orleans College of Law.

The sub-committee or "Specialized Litigation Group" (SLG) sessions will offer detailed analysis in 18 different practice areas. Your humble blogger is Chair of the Mass Torts & Class Actions SLG.  Our scheduled topics for our session include:

  • Update on Climate Change/Global Warming Litigation
  • Medicare Reporting Requirements for Settling Defendants in Class Actions and Mass Torts
  • Impact of Shady Grove on Class Actions and the Plaintiffs’ Bar Response

 

Upcoming Drug and Medical Device Seminar

DRI’s Drug and Medical Device Committee will hold its 26th annual Seminar on May 20-21, 2010, at the San Francisco Marriott, in San Francisco, California.

The Seminar is one of the best of its kind, highly useful to practitioners who represent pharmaceutical and/or medical device manufacturers. This year's Seminar will feature a number of nationally recognized attorneys, both in-house and outside counsel, who will address cutting-edge topics that are relevant to all who practice in this area, whether they are associates, lead trial counsel, or in-house counsel.

This year’s program will offer a mixture of presentations, such as trial skills demonstrations, panel discussions, and individual presentations from leaders in their practice areas. In addition to the outstanding program, there will be numerous networking opportunities, including the annual Young Lawyers Blockbuster. 

See the Seminar Brochure to register or to learn additional information. The advanced registration deadline is April 30, 2010.
 

Upcoming DRI Product Liability Seminar

Well, it may be too late to switch Northern Iowa for Kansas in your office pool (for amusement purposes only), but it is not too late to sign up to attend the 2010 DRI Product Liability Conference, "The Masters of Product Liability Litigation."

The conference will be held at the fabulous Venetian in Las Vegas on April 7-9, 2010. As always, this annual meeting offers premier educational and networking opportunities.

In addition to the general sessions, the various sub-committees, including the Mass Torts & Class Action group chaired by your humble blogger, will host breakout workshops focusing on topics particular to their practice areas.

Our breakout will include insights from two experienced in-house counsel, Matt Flesher, Assistant General Counsel of Cessna Aircraft Company, and Andy Rudd, General Counsel for the Home and Family Group of Newell Rubbermaid, a group that includes Graco Children’s Products, Calphalon Corporation, Goody Products, Levolor window coverings, and Rubbermaid consumer products. 

If interested, please check out the info here.

Product Liability Seminar Offers Topical Mass Tort Session

We have posted before about the 2010 DRI Product Liability Conference in Las Vegas in April, as an event worth checking out.

Let me add that one of the attractive feature of the conference is that, in addition to the exceptional program put together for the main stage, there are many great Specialized Litigation Group (subcommittee) programs planned, including the highly-relevant-to-readers Mass Torts & Class Actions SLG.

At the Mass Torts & Class Actions SLG breakout session on Thursday, April 8th (likely to be more daring than Criss Angel, more talented than Terry Fator, more energetic than a Blue Man Group) includes:

Legislative and Regulatory Update: Impact of New Administration and New Statutes, Rollback on Preemption and Effort to Rollback Twombley
Jeffrey A. Holmstrand, McDermott & Bonenberger PLLC, Wheeling, West Virginia
Anthony Sammons, Dinsmore & Shohl LLP, Lexington, Kentucky

Emerging Class Action Issues: Impact of the ALI Project on Aggregation and Update on Problematic Causes of Action (Public Nuisance, Consumer Fraud Act and Medical Monitoring)
Richard A. Oetheimer, Goodwin Procter LLP, Boston, Massachusetts
John Parker Sweeney, Womble Carlyle Sandridge & Rice PLLC, Baltimore, Maryland

Emerging Mass Tort Issues: Examination of Daubert/ Frye Issues, Update on Green-Product Issues and Use of Risk Assessment Concepts
Robert C. James, TERRA Inc., Tallahassee, Florida
David C. Uitti, Dechert LLP, Princeton, New Jersey

Best Practices on Managing Mass Torts: Exploring the Virtual Law Firm, Cost Controls, Alternative Fee Arrangements and Early Case Dispositions
Moderator Kip T. Bollin, Thompson Hine LLP, Cleveland, Ohio
 

You can still register.

Product Liability Conference Worth Investigating

This year’s DRI Product Liability Conference is worth checking out. It's entitled "The Masters of Products: The Stars Come Out to Shine."  The conference will take place April 7-9, 2010 at The Venetian in beautiful Las Vegas, Nevada. In addition to all that Vegas has to offer, the seminar promises a jackpot of 18.5 hours of outstanding CLE, including 2 hours of ethics credit.

The main program features presentations by judges, academics, and government officials, including Hon. Inez Moore Tenenbaum, Chair of the U.S. Consumer Product Safety Commission; Prof. Steven Gensler, Professor at the University of Oklahoma College of Law; Honorable Lee H. Rosenthal, United States District Court, Southern District of Texas; in-house counsel experienced in managing global product liability litigation, the trial of difficult cases including wrongful death and class actions, the use of demonstrative evidence and other trial tactics in product liability litigation, the new CPSIA and the reporting database, and the art of storytelling as a trial lawyer.

Break-out sessions are held by each of the 18 Specialized Litigation Groups (SLGs), (your humble author is Chair of the Mass Tort and Class Action SLG), so you can hone your skills in specific areas. And of course, the program will be attended by in-house and outside counsel from around the country, with ample opportunities to meet, greet and network. You won't want what you learn in Vegas to stay in Vegas.

You can get more info here.

 

 

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Daubert Webinar Worth Checking Out

Readers are invited to consider the upcoming webinar, "Daubert Standards for Expert Witness Testimony: Effective Strategies for Bringing and Defending Daubert Challenges."  Your humble blogger will be a co-presenter. 

This is a live 90-minute webinar program with interactive Q&A, set for Thursday, February 25, 2010, at 1:00 p.m. Eastern Time / 12:00 p.m. Central Time / 11:00 a.m. Mountain Time / and 10:00 a.m. Pacific Time.  You can check it out or register.

 

Readers know that Daubert motions are one of the most critical pre-trial aspects of a case involving expert witness testimony because exclusion of a plaintiff's expert can effectively end a lawsuit. A  strong Daubert challenge can also have an impact on settlement. 

This seminar will discuss effective strategies for Daubert motions, and I will talk about when you might want to NOT file one.

Products Liability Seminar Worth Checking Out

Early notice of a seminar that should be of great interest to many readers. 

DRI's Product Liability Conference will be held on April 7-9, 2010 at the Venetian, in Las Vegas, Nevada.

The "Masters of Products" is the theme for the 2010 DRI Product Liability Conference. Product liability superstars will light up the main stage, while rising stars lead breakout sessions in 18 separate disciplines to span timely product liability topics from big-picture issues to the finer points of products practice.

Specialized Litigation Group (SLG) breakout sessions are spread over the three days, offering detailed analysis directly relevant to your product liability practice areas and interests. [Your humble blogger is Chair of the Mass Torts & Class Actions SL group.]

The brochure is here.

And you can register here.


 

DRI Product Liability Conference Next Week

Next week, your faithful blogger will be on the road in San Diego for the annual conference of DRI's product liability committee.

It's not too late for you to sign up too.  The focus this year is on "green" issues. This program will highlight emerging issues in product liability law associated with increasing environmental awareness and health concerns. The "green" movement will impact a product liability practice and this seminar presents opportunities to learn to help clients navigate the new terrain. As environmental concerns mount and consumers and companies seek to minimize their impact on the planet, new opportunities and risks arise for product manufacturers. Manufacturers are inventing new products using cutting-edge technologies. Consumers are becoming nervous about the use of traditional chemicals in products, but also question newer approaches. The government is involving itself by threatening to more heavily regulate a variety of areas, including product labeling.

Details
Product Liability Conference
Hilton San Diego Bayfront One Park Blvd. San Diego, CA 92101
4/14/2009 - 4/17/2009

SIGN UP HERE

Topics include:
􀁴 Litigation arising from the use of phthalates and nano materials
􀁴 New claims emerging from the use of “green” building materials
􀁴 Preemption in the area of product liability
􀁴 How to meet new sustainability standards
􀁴 What new “green” regulatory standards are being considered in Europe and America
􀁴 New rules enacted by the Consumer Products Safety Commission

(Your MassTortDefense blogger is vice-chair of DRI's Mass Torts & Class Actions SLG)

 

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Medical Monitoring Webinar

Your faithful blogger is in NY today speaking at the ACI Drug and Medical Device CLE Seminar.

On this topic of CLE seminars, however, a note that I will be co-presenter at the upcoming webinar, Defending Medical Monitoring Claims— Recent Developments and Best Practices. The webinar is presented by DRI’s Product Liability Committee and its Mass Torts & Class Actions Subcommittee. Co-presenter Jeff Holmstrand, Esquire.

This webinar is designed to help attorneys representing companies in the pharmaceutical, medical device, chemical, and consumer product industries understand what to expect when facing a claim for medical monitoring. In addition to a discussion of important developments and trends in medical monitoring law—including recent cases and an update on the ALI Restatement section related to monitoring—this course will explore some critical actions that clients and their counsel can take to maximize their chances of defeating class certification and prevailing on the merits of medical monitoring claims at trial.

DATE AND TIME

Tuesday, December 16, 2008
3:00 p.m. – 4:30 p.m. Eastern

Register.