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.



Federal Circuit to Rehear Judges' Pay Raise Issue

While our usual focus is mass torts, product liability, class actions, and complex commercial litigation, readers know we always keep an eye on issues affecting the judiciary.

Now comes word that the Federal Circuit has agreed to rehear en banc a panel decision to deny cost-of-living pay raises to a class of federal judges. Peter H. Beer,et al. v. U.S., No. 10-5012 (Fed. Cir. May 18, 2012).

Federal judges had filed a class action challenging the government's conduct in blocking duly passed and scheduled pay raises for judges, arguing this violated the Constitution's Compensation Clause, which holds that judges' pay “shall not be diminished during their continuance in office.” The judges argued that denying the planned salary increases in essence amounted to an unconstitutional decrease.

Earlier this year, a panel of the appeals court affirmed the dismissal of the proposed class action, relying in part on a prior case in which the court said Congress hadn't violated the Constitution's bar on judicial pay decreases by stopping automatic raises required by the Ethics Reform Act of 1989.

Plaintiffs sought rehearing, and a number of amici weighed in; for example the brief filed by the ABA noted that while partners at law firms have had average salaries rise 75% in real terms from 1969 to 2006, federal judges' pay actually fell in real terms. They are underpaid and overworked.

The court requested the parties to file new briefs addressing whether the Compensation Clause of Article III of the Constitution prohibit Congress from withholding the periodic salary adjustments for Article III judges provided for in the Ethics Reform Act of 1989, and whether the 2001 amendment to the act makes a difference.




FJC Releases Report on Juror Use of Social Media

Here at MassTortDefense we have observed the many ways in which the evolution and spiking popularity of social media has affected the practice of law.  We are blogging, obviously, can be followed on twitter (@MassTortDefense), and have a presence on Linkedin. On the day Facebook has filed for an historic IPO, it may be a good time to look at the issue of the use of social media by jurors in the courtroom.

The Federal Judicial Center released a report on the topic last week.  At the request of the Committee on Court Administration and Case Management, the Federal Judicial Center conducted a survey of district courts to assess the frequency with which jurors use social media to communicate during trials and deliberations, and to identify effective strategies for curbing this behavior. The results, based on the responses of 508 responding judges, indicate that detected
social media use by jurors is so far infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom. The most common strategy is incorporating social media use into jury instructions—either the model jury instructions provided by CACM or judges’ own personal jury instructions. Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom.

Only 30 judges reported instances of detected social media use by jurors during trials or deliberations. But almost half the judges said they had no good way of knowing whether jurors were using social media.  Nearly 94 percent of the judges who responded to the survey have specifically barred all case-connected use of social media. Judges admit that it is difficult to police jurors, and therefore use of social media is difficult to detect.

Of the types of social media used by jurors, Facebook was ranked as the most common, with instant messaging second.  Twitter lagged behind in this survey.  In most instances, the social media use was in the form of posts about the progress of the case. But the judges reported a handful of attempts by jurors to  “friend” one or more participants in the case. And three reported jurors who revealed aspects of the deliberation process.



Senate Judiciary Committee Approves "Sunshine" Bill That Clouds Up Settlements

Here at MassTortDefense we know that while not the "sexy" part of litigation, the nuts and bolts of settlement agreements are crucial to clients.  That is why it caught our eye that the U.S. Senate Judiciary Committee last week approved a bill that would require courts to consider so-called public health and safety concerns before approving the sealing of certain legal agreements and settlements in product liability suits.

The committee voted 12-6 to pass S. 623, the so-called Sunshine in Litigation Act. The bill would  prohibit a federal court, in any civil action in which the pleadings state facts relevant to the "protection of public health or safety," from entering an order restricting the disclosure of information obtained through discovery, or from approving a settlement agreement that would restrict such disclosure, or restricting access to court records, unless in connection with that order the court has first made certain findings of fact.  Specifically, the bill requires the court to find that: (1) the order would not restrict the disclosure of information relevant to the protection of public health or safety; or (2) the public interest in the disclosure of past, present, or potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information, and the requested protective order is no broader than necessary to protect the confidentiality interest asserted.

The bill similarly would prohibit the court from enforcing any provision of a settlement agreement that prohibits a party from disclosing that a settlement was reached or the terms of the settlement, other than the amount paid, or from discussing the civil action, or evidence produced in it, that involves matters relevant to the protection of public health or safety -- unless, again, the court finds that the public interest in the disclosure of past, present, or potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information or records in question, and the requested order is no broader than necessary to protect the confidentiality interest asserted.

Surprisingly Republican Senators. Orrin Hatch, R-Utah, and Chuck Grassley, R.-Iowa, joined all 10 Democrat committee members in support. But the bill seems ill-conceived and even unnecessary. As pointed out by the American College of Trial Lawyers' Federal Rules of Civil Procedure Committee, the bill would establish an undesirable precedent by circumventing the procedure set out in the Rules Enabling Act that Congress established for amending the Federal Rules of Civil Procedure. These kind of ad hoc legislative initiatives that address specific parts of the Federal Rules contradict the careful, open, deliberative, rigorous ways that the rules have been amended from time to time.

Moreover, the bill would would unduly restrict the discretion of trial judges to regulate civil litigation and would impose substantial new fact-finding burdens on the courts, without a demonstrated need for those changes.  There is no compelling evidence that protective orders governing discovery or confidentiality provisions in settlement agreements are frequently abused. Nor is there evidence that federal courts do not currently have the power to regulate those agreements. 

Moreover, as written, the bill would lead to more confusion, not less, regarding what information has to be released, and when.  As pointed out by Steve Zack, President of the ABA, the language is is vague and indefinite, threatening to sweep up many cases having little to do with true public health or safety.  And it certainly would  require the parties and courts to spend extensive time and resources litigating whether and how the statute applies.  The politicians seem to forget  that protective orders are critical to both plaintiffs and defendants, including by helping to safeguard against dissemination of highly personal sensitive information or trade secrets.  

Perhaps Congress should spend less time on restricting judicial discretion and more on seeing that federal judges are paid a market-competitive wage.  A district court judge on the bench since 1993 failed to receive a total of $283,100 in statutorily authorized but then-denied pay. Appellate court judges have lost even more.

$700 Billion for "Stimulus" - Apparently None Left For Judiciary

We've had our disagreements with the ABA, in particular with inappropriate policy positions the Association has taken on issues that have divided their membership. (MassTortDefense has high hopes for the leadership of incoming President Steve Zack, an outstanding lawyer from Florida.)

But here is one position we heartily endorse.  The American Bar Association is urging the Supreme Court to take a suit brought by a group of current and former federal judges who are seeking cost-of-living salary raises.  Beer, et al. v. United States, No. 09-1395 (U.S. S.Ct.).  The judges are seeking back pay and declaratory relief because they never received the cost-of-living salary increases that they are entitled to under the Ethics Reform Act of 1989.

The American Bar Association last week filed an amicus brief urging the Supreme Court to rule in Beer vs. U.S. on whether Congressional denial of cost-of-living salary adjustments for federal judges compromises judicial independence, violating the Constitution. Although the Ethics Reform Act of 1989 was intended to establish automatic annual COLAs for federal judges, Congress has refused to authorize these “non-discretionary” raises six times, notes the ABA brief. While inflation-adjusted wages for the average American worker have risen 19.5 percent since 1969, salaries for federal district judges have dropped by 27 percent over the same period. Judicial pay is now so low as to seriously compromise the independence that life tenure was intended to ensure and may becoming insufficient to attract and retain well-qualified jurists from diverse economic and societal backgrounds, argues the ABA. In many cases, former judicial law clerks earn more in salary and bonuses in their first year in private practice than the federal judges for whom they clerked.

While judges know about this pay scale when they answer the call of public service, they certainly could not anticipate that Congress would steadily erode that pay in real terms by repeatedly
failing over the years to provide even cost-of-living increases.

House Holds Hearing on Recusal Standards

Although not strictly a mass tort issue, a number of our readers have followed with great interest the judicial recusal issues raised by Caperton v. A.T. Massey.

Last week, the House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing "Examining the State of Judicial Recusals after Caperton v. A.T. Massey."

Several legal experts debated a proposal to amend federal law to give litigants a peremptory judicial challenge. The Hon. Margaret McKeown of the 9th Circuit, who also chairs the Committee on Codes of Conduct for the U.S. Judicial Conference, suggested that there are already a number of protections in place to make sure judges are impartial.  She cited 28 U.S.C. §§144 and 455(a), as well as  judicial ethics rules. Dean Gehy of the Indiana Law School, however, opined that there are several problems with the current federal disqualification regime. He suggested amending Section 144 to provide a peremptory challenge instead of requiring an affidavit claiming personal bias, and revising Section 455 to require a different judge to hear contested disqualification motions.

Richard Flamm, author of a nationwide treatise on Judicial Disqualification: Recusal and Disqualification of Judges, described the existing federal disqualification framework as "deeply flawed" and fraught with serious pitfalls both for litigants and unwary counsel.  He gave the committee a history lesson, tracing judicial ethics to the Babylonian Talmud, and to the Roman Code of Justinian. He cited to state analogs, concluding that in states that have enacted peremptory challenge statutes, the right to challenge a judge on a peremptory basis is widely considered to be a useful and valuable one, and one that assuages the concerns of a great number of litigants and attorneys.

On the other hand, Professor Eugene Volokh, of UCLA, who also worked on the Massey case, raised the danger of strategic judge-shopping, and urged Congress to tread cautiously and not act unless there appears be a serious problem.

Professor Hellman, from the University of Pittsburgh, suggested two measures that he thought would enhance transparency and help judges to avoid even the appearance of impropriety. First, judges should be encouraged to post “conflict lists,” including financial holdings, on their courts’
websites. Second, litigants should be given one opportunity to secure reassignment of a civil case to another judge, the so-called right of “peremptory challenge.”