Mass Tort Defense : Mass Tort Defense Lawyer & Attorney : Sean P. Wajert : Dechert Law Firm : Products Liability, Class Actions, Pharmaceutical Litigation

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.
 

• Email This
• Print
• Comments
• Trackbacks

DRI (the Defense Research Institute) last week submitted an amicus brief urging the Supreme Court to review a federal appeals court decision that threatens to undermine the gatekeeper role of the trial courts on expert testimony. United States Steel Corp. v. Milward v. Acuity Specialty Products Group Inc., No. 11-316 ( U.S., amicus petition filed 10/12/2011).

Most of our readers know that DRI is an international organization that includes more than 23,000 attorneys involved in the defense of civil litigation.  DRI has long been a voice in the ongoing effort to make the civil justice system more fair, efficient, and—where national issues are involved—consistent. (Your humble blogger is a member.)

In this case, the plaintiff alleged that he contracted a rare form of cancer, acute promyelocytic leukemia (APL), through exposure to benzene or benzene contaminants. The plaintiff’s expert acknowledged that science has not determined what causes or can cause APL, but opined that, based on his own "judgment," the "weight of evidence" supported a conclusion that APL could be caused by benzene exposure. After a four-day hearing, the district court excluded the expert testimony as unreliable under Daubert, and Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)(district courts need to exclude proof that is connected to the data only by the ipse dixit of an expert), finding that it amounted to no more than a plausible hypothesis. The U.S. Court of Appeals for the First Circuit reversed and reinstated the case, holding that it was an abuse discretion to exclude this evidence as to possible causation.

The First Circuit in this case appeared to think that district courts not only may but must admit speculative expert testimony that rests on nothing more than the expert’s subjective judgment that an untested hypothesis is supported by the “weight of the evidence.”  That decision conflicts with Supreme Court guidance and with the decisions of other circuits holding that expert testimony is admissible only when it rests on a reliable scientific foundation, and that a district court is not required to accept an expert’s ipse dixit but must instead carefully examine the methods and data underlying the expert’s opinion to ensure that the expert has reliably applied valid scientific principles. Without such an inquiry, the “gatekeeper” function the Federal Rules of Evidence envision for the district court judge becomes meaningless.

DRI correctly points out that the weight-of-the-evidence methodology the court of appeals endorsed does not satisfy the criteria Daubert adopted for assessing the reliability of expert testimony. It is neither testable nor falsifiable; it is not governed by any objective standards; and it has not been generally accepted by the scientific community as a means to assess medical causation absent an observed association between the substance and disease at issue. The fact that some regulatory agencies use an arguably similar, lower bar, methodology to assess risks to public health based on the available data does not mean that it yields “scientific knowledge” admissible under the very different standards governing a court proceeding.

Moreover, the district court’s essential gate-keeping role is particularly important on the issue of medical causation. That issue is often dispositive in toxic tort and product liability cases, which can involve enormous stakes not only for the parties, but also for the national economy. The lay jurors who decide these complicated issues are likely to be greatly influenced by testimony that appears to be scientific in nature coming from a witness whom the court has admitted as an "expert." The decision by the First Circuit undermines the critical screening function district courts perform to prevent juries from being misled by speculation masquerading as scientific knowledge.

• Email This
• Print
• Comments
• Trackbacks

This year's United States Supreme Court term promises to be a blockbuster for class action law. By the end of June, the Court will have released three important opinions in the class action arena, including Wal-Mart v. Dukes, Smith v. Bayer Corporation, and AT&T Mobility v. Concepcion -- just out in a 5-4 decision that holds that the FAA preempts state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives, requiring the individual cases involved to be arbitrated as opposed to a class-wide arbitration.

DRI has put together a timely class action seminar for July 21-22 in Washington, D.C.

The seminar will bring together counsel of record from these Supreme Court cases, along with federal appellate judges and renowned class action specialists to address these and other cutting-edge issues of class action law. If you practice in the fields of complex litigation, mass torts or class actions, you will want to check out this outstanding seminar.

More info here.

• Email This
• Print
• Comments
• Trackbacks

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. 

• Email This
• Print
• Comments
• Trackbacks

I am attending the DRI Product Liability Conference in New Orleans this week (as I know a number of readers are). Your humble blogger serves as Chair of the Mass Torts and Class Action sub-committee.

At the keynote address, Cheryl Falvey, Esq., General Counsel of the Consumer Product Safety Commission, spoke about an issue we have posted on before, the new incident report database.
With the usual disclaimer that she was not speaking for the CPSC officially, she shared a number of personal insights.

The new database went on line last month, and the first consumer reports were posted last week. It can be viewed through the Commission site with a link to SaferProducts.gov. There is a search function for products or manufacturers names, and it lists any recalls and reports, which can be filtered by date.

She indicated that, like Congress and the bar, the Commission is extremely divided on the new database. She stressed that, per the statutory requirement, there is a disclaimer on the site that: CPSC does not guarantee the accuracy, completeness, or adequacy of the contents of the Publicly Available Consumer Product Safety Information Database on SaferProducts.gov, particularly with respect to information submitted by people outside of CPSC. She admitted, however, that some lawyers may well seek to use the database to argue manufacturers were on notice of something regarding the product.

She noted that anonymous reports to the CPSC are not automatically published, but of course as to the public, every report on the website appears anonymous.

The CPSC believes it is mandated to publish reports of risks of harm as well as actual harm.

The Commission, she says, investigates only about 10% of the reports received; they do not have the budget and resources to investigate every report, let alone investigate reports before they are published. The CPSC is thus "not adjudicating" the product complaints, just posting them.
 

• Email This
• Print
• Comments
• Trackbacks

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

• Email This
• Print
• Comments
• Trackbacks

Your humble blogger spent part of last week at the DRI Annual Meeting in SanDiego, CA.  (I serve as Chair of the Mass Tort and Class Action Subcommittee of the Product Liability Committee.)

DRI is the international organization of attorneys defending the interests of business and individuals in civil litigation. DRI provides numerous educational and informational resources to DRI members and offers many opportunities for liaison among defense trial lawyers. DRI's goals include: To teach and educate and to improve the skills of the defense law practitioner; to strive for improvement in the civil justice system; to be a counterpoint to the plaintiff's bar and seek balance in the justice system in the minds of potential jurors and on all fields where disputes are resolved; and to assist members in dealing with the economic realities of the defense law practice, including the competitive legal marketplace.

The first day keynote speaker was former Navy SEAL Marcus Luttrell.

He received his Basic Underwater Demolition/SEAL (BUD/S) training in Coronado, California, just down the road from the site of the DRI conference.  He participated in multiple missions in Iraq and Afghanistan.  In 2005, Luttrell and his SEAL Team 10 were assigned to a mission to kill or capture Ahmad Shah, a high-ranking Taliban terrorist leader responsible for multiple killings and atrocities.

Luttrell shared with the defense bar lawyers his harrowing mission, beginning with when his team was accidentally stumbled upon by local goat herders.  They let the herders go as non-combatants, but apparently the herders immediately  told the local Taliban about the team. Within a short time, the four SEALs were engaged in a vicious fire-fight against a force of 100-150 enemy fighters. The SEAL team engaged the Taliban for several hours in a running fire-fight through the hills and valleys of Afghanistan, killing more than half of them.  All of the SEALs continued to fight after being wounded multiple times. Eventually, all of the other team members were killed. Luttrell barely survived after being blown out of a gap in the boulders by an RPG, and rolling down the mountain away from the bulk of the forces.

A helicopter trying to rescue the SEALs was also shot down when it reached the hill on which the battle was raging.

Badly wounded in multiple places, Luttrell managed to crawl seven miles to evade capture, during which he killed several more Taliban.  Eventually, he was  given shelter in a village, whose elders follow the belief that an injured stranger needing shelter must be given it.

Luttrell recounts his ordeal in the New York Times bestseller Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of SEAL Team 10.

He told DRI that he doesn't view his appearances as being about "motivational speeches."  But it was clear that the dominant theme was applicable to anyone facing bad odds or tough times or difficult  challenges: don't give up, don't give in; you don't know what you are capable of until you try.

• Email This
• Print
• Comments
• Trackbacks

Readers recognize how the discovery landscape has changed, and not necessarily for the better, with the amendments to the Federal Rules of Civil Procedure regarding electronic discovery. We are also coming up on the two-year anniversary of Federal Rule of Evidence 502, intended to address concerns about the disclosure of information protected by the attorney-client privilege or work product doctrine, including inadvertent disclosures.

An interesting upcoming DRI webcast in June will discuss how Rule 502 has impacted discovery strategy, document review, and document disclosures, with a focus on the production of documents in the electronic age. The speakers will also discuss how courts have addressed the new rule, how those cases impact your mass tort and complex litigation practice, and how to advise your clients on these issues.

Check out the brochure.

• Email This
• Print
• Comments
• Trackbacks

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.  And the cocktail reception co-hosted by your humble blogger's team at Dechert LLP.

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

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

For those readers of MassTortDefense who confront issues of punitive damages in their practice, a recently released book is worth a look:  DRI's Punitive Damages: A State-by-State Compendium (2009).

The book is a new compendium of the law of all fifty states, the District of Columbia and all Canadian provinces regarding punitive damages. This publication also contains a number of articles focused on recent trends in this area of the law. The book outlines each state’s law and procedure regarding punitive damages. Topics include: Leading cases and statutes in each state; the level of conduct required to trigger an award of punitive damages; product liability causes of action for which punitive damages are recoverable; special rules applicable to particular types of products, classes of products, or defendants; pleading requirements; bifurcation/
phasing procedures; limits of permissible discovery; state-specific defenses; and post-trial procedures.

Your humble blogger served as Co-Managing Editor/Atlantic Region Editor (but no royalties are involved!)

• Email This
• Print
• Comments
• Trackbacks

No substantive post today, as your faithful blogger is out of town for a DRI meeting, wearing another hat as the chair of the Mass Torts and Class Action group of DRI's Products Liability Committee.

DRI is the international organization of attorneys defending the interests of business and individuals in civil litigation. DRI provides numerous educational and informational resources to DRI members and offers many opportunities for liaison among defense trial lawyers. DRI's goals include: To teach and educate and to improve the skills of the defense law practitioner;  to strive for improvement in the civil justice system; to be a counterpoint to the plaintiff's bar and seek balance in the justice system in the minds of potential jurors and on all fields where disputes are resolved; and to assist members in dealing with the economic realities of the defense law practice, including the competitive legal marketplace.

Later this year DRI will hold its annual meeting in Chicago, October 7-11.  This Annual Meeting will celebrate DRI’s 50th anniversary and Lincoln’s 200th birthday.

You can join DRI  here, and register for the annual meeting conference here.

• Email This
• Print
• Comments
• Trackbacks

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)

• Email This
• Print
• Comments
• Trackbacks