mass torts

Special master Louis Freeh found that an official involved in the administration of settled claims over the BP oil spill frequented a New Orleans bar that received $500,000 in oil-spill compensation and mishandled an email regarding the claim, the National Law Journal reports. While Freeh recommended procedural changes, BP wants witness statements and transcripts, NLJ reports. Freeh and plaintiffs lawyers oppose that request.

The Fifth Circuit has upheld the multibillion settlement of the claims of the residents and businesses impacted by BP's oil spill in the Gulf of Mexico, The Washington Post reports. BP had objected to the approval of the settlement by arguing "that U.S. District Judge Carl Barbier and court-appointed claims administrator Patrick Juneau have misinterpreted settlement terms in ways that would force the London-based oil giant to pay for billions of dollars in inflated or bogus claims by businesses," The Post further reports. BP argued that the class of claimants could have included people who didn't actually suffer any injury due to the oil spill.

The New York Times reports on plaintiffs who are frustrated with a proposed $2.5 billion settlement for an estimated 8,000 lawsuits involving the all-metal hip device known as the Articular Surface Replacement or A.S.R., including that lawyers are set to receive one-third of the settlement, or $800 million.

The Legal Intelligencer (my journalism alma mater) reports on the continuing trend of the reduction in mass torts in the Philadelphia court system. Court leaders, however, have seen a 5% uptick in filings by out-of-state plaintiffs suing over the pharmaceutical drugs they took.

One attorney told The Legal that more vigorous regulation by the Obama administration may have led to fewer tort lawsuits. "Obama has been more proactive in putting out more label changes, warning physicians about the side effects of prescription drugs. That takes away a lot of the failure-to-warn claims," plaintiffs attorney Sol Weiss said.
 

A federal appellate court, divided 2-1, has ordered the trial judge presiding over the settlement of Gulf of Mexico oil spill lawsuits to reconsider the formula used to calculate claimants' damages, The New York Times reports. "BP has repeatedly complained about the claims process, arguing that the program’s administrator, Patrick Juneau, was approving fabricated payments for business economic losses based on an unsound interpretation of an agreement the company reached with victims last year," The Times also reports.

The Philadelphia Inquirer reports that a Ninth Circuit opinion "is the latest in a debate about whether multiple lawsuits alleging harm to patients from the same pharmaceutical product should be heard in state courts or federal courts."

According to the opinion in Romo v. Teva Pharmaceuticals, at issue was whether it was appropriate to remove mass torts to federal court under the Class Action Fairness Act's provisions for federal removal of "mass actions" when the claims of a 100 or more plaintiffs involve common questions of law or fact that the plaintiffs propose to try jointly.

The district court remanded to state court involving plaintiffs who say they were injured by the ingestion of propoxyphene, "an ingredient found in the Darvocet and Darvon pain medications, as well as in the generic brand counterparts," the majority opinion said. The Ninth Circuit majority agreed with the district court the plaintiffs' petition for coordination wasn't a proposal to try the cases jointly, only for coordination of discovery and other pretrial matters.

In contrast on the same issue of first impression, the Seventh Circuit in In re Abbott Laboratories involved plaintiffs seeking consolidation through trial, the Ninth Circuit majority said.

The majority also said in a footnote that a three-judge panel doesn't have the authority to revisit circuit precedent decided in 2009 case of Tanoh v. Dow Chemical Corp. that there is a presumption against removal to federal court, that any uncertainty should be construed in favor of remand, and that the proposal to try claims jointly must come from the plaintiffs. The Chamber of Commerce and others argued as amici, the majority's opinion said, that "we should revisit Tanoh and that it has lost its precedential value, urging that plaintiffs should not be able to structure their complaints to avoid federal jurisdiction in light of the purposes of CAFA to curb class action and mass action abuses that have occurred in state courts," the footnote in the opinion said. But the majority also said it approves of Tanoh and that other circuits, including the Seventh Circuit in Abbott, have cited it.

In contrast, the dissent said that the majority "creates a circuit split, for practical purposes, with the Seventh Circuit's decison in Abbott."

"If plaintiffs are masters of their complaints and can plead in a way to avoid federal jurisdiction, they remain free to 'game' the system to some degree, including by joining less than one hundred plaintiffs in many suits in state court, so long as those cases are separate," the dissent said. "... That leads me to recognize that the issue here, stated more precisely, is whether when plaintiffs seek to coordinate under California law many state actions, and urge the state court that coordination is necessary to avoid inconsistent judgments, that is a proposal for joint trial within the meaning of CAFA."

The full Ninth Circuit opinion is here: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/24/1356310_opn&di...