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June 29, 2005

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Tom

Nothing against Mr Lanier in Texas, but I really hope that the trial in Alabama gets rescheduled and the Beasley Firm gets their trial in first. I'm not sure that this guy has ever lost a trial like this and we all know how important this first trial can be. If Merck loses this first trial and loses big, I think we could see the start of an avalanche of cases being filed. Congratulations on the number of cases your firm has Evan, one third of all of the cases that have been filed is very impressive.

Evan

Tom: I guess we'll see. But from what I hear, Mark Lanier is an extremely competent lawyer. As for the cases filed, I'm trying to figure out if those numbers count the individual people who have filed cases or just the individual lawsuits. I'm assuming the former, though technically, one lawsuit can have multiple individual plaintiffs.

By the way, none of these cases are class actions. I know you know that, but many people remain confused about the distinction between a class action and an individual claim in a mass tort. Though there have been class actions filed--not by me--the case counts above involve claims on behalf of individuals in which the damage and causation part of the case must be litigated separately each time. The only overlap will be parts of the liability case, which will prevent Merck officials from having to be deposed hundreds of times.

Evan

Tom: I should also state that although my firm is responsible for all these cases, I'm working jointly with another firm and a couple of other individual lawyers--that's why it's a "team."

Mike

Well, there you go, Evan -- how about a post on the difference between mass torts and class actions?

Ted

Tom: I'm also kind of disappointed they didn't try the Alabama Vioxx case first, as that case is an excellent argument for the need for litigation reform.

It's worth noting that most of the class actions involve plaintiffs who specifically allege that they've suffered no personal injury from taking Vioxx. Michael Greve has written about this phenomenon.

Eh Nonymous

Evan, I would echo Mike's comments, and ask that you share some of your invaluable knowledge - if not here, then at least on your other blog, and post a reference here - in the terminology, legal technology (meaning rules and rulings, rather than bits and bytes), and epic mythology of what you do.

Also, re. Ted's last comment: Consumers who are injured-medically were taken out, leaving customers who allege legal injury, under laws that, according to Michael Greve (I have no reason to believe him, and almost as little reason _to_ believe him) include mechanisms like misrepresentation that do not require causation in the form of detrimental reliance.

Now, since I've always felt, since law school, that detrimental reliance as a prerequisite to suing a misrepresentor is a crock of shit. Ted can disagree with me here. I think people who lie, and people who recklessly speak what they think may be true, and people who negligently misrepresent, should all face real consequences. Not go out of business; not be jailed; not even have to make everything right again. Just suffer, for their lies, or their reckless disregard for the truth, or their negligence as to the truth. There should be a tort of lying in the stream of commerce. I would have thought misrepresentation in the common law of torts would do, but all this jackassery about detrimental reliance keeps popping up, and the law gets further and further away from punishing the wrong-doer and allowing some redress, however slight, for the person who suffers in consequence.

The trouble with using the need for causation - it's there! in the Constitution, maybe even, under Due Process - to require detrimental reliance, is that they're different. Proving causation is easy. Along the lines of: They lied, we died. They lied, we bought their stupid product. They lied, we bought their stock, etc. In each case, you must show causation and loss, but is that the same as detrimental reliance? What about the reasonable reliance requirement? What about knowledge of the victim? Can we put them on trial? Can we, can we?

"Double recoveries"- pah. "Excessive deterrence"- my ass. If a company is deterred from misrepresentations, that's a _good_ thing. If all companies are deterred by making an example of one extremely bad actor, that's a _good_ thing. If the law is kept so scrupulously "fair"- meaning that borderline cases of causation fall on the defendant's side - then we have classic under-deterrence, incentives to cheat, and incentives to push the line. Hire a good enough lawyer, and your lies won't hurt you- only the victims.

Oops, there's that word again. Hi Rufus!

Ted

If a company lied materially, then someone was surely damaged by the lie, in which case a company will suffer consequences for the lie and have to compensate the injured—so why do we need random lawsuits from people who haven't suffered any injury?

If the company's lie didn't hurt anyone, who cares? Should you be prosecuted for fraud for falsely signing your name "Eh," even though no one is harmed by the hiding behind a pseudonym? By your argument, you should, because excessive deterrence will deter forgers whose use of phony names might hurt people.

mythago

If the company's lie didn't hurt anyone, who cares?

If I deliberately fire a gun at you and miss, and the bullet sails off harmlessly into the ocean without your ever having noticed your peril, have I committed a crime?

Tom

Ted: I'm a little confused about your referrence to the Alabama Vioxx Trial as a perfect example for litigation reform. I can only assume that you mean that you believe Mrs Rogers is lying about her husband taking Vioxx and thus filing a fraudulent claim. Not only that, but the very well respected law firm that is handling her case has filed a frivolous lawsuit and somehow some sort of litigation reform would stop that from happening.
Is that really what you are claiming?

Ted

If I deliberately fire a gun at you and miss, and the bullet sails off harmlessly into the ocean without your ever having noticed your peril, have I committed a crime?

It depends. Assuming mens rea and no affirmative defenses, yes. But selling goods and services is a socially productive activity, while the economically optimal number of shots fired with malicious intent is zero, so there's a legitimate worry about overdeterrence in the first instance, and less so in the second.

Evan

All these bullets sailing in the comments! This has become a dangerous place, to the extent it wasn't already.

Ted writes:

It's worth noting that most of the class actions involve plaintiffs who specifically allege that they've suffered no personal injury from taking Vioxx.

I can think of two such possibilities in pharmaceutical litigation like the Vioxx case: (a) a lawsuit on behalf of a class of the users of a drug to recover the costs of the drug even though they weren't personally harmed or (b) a lawsuit on behalf of users of a drug who aren't harmed yet as a result of their use but who seek the relief of "medical monitoring" to cover their costs in being checked by doctors for signs of a disease as time progresses.

Ted, are you speaking of (a) or (b)? The article you cite to seems to address (a), but I don't think there are too many Vioxx class actions like this (although I don't know for sure) because Merck, I think, has already agreed to reimburse for the cost of the drug, at least the unused portions. Most Vioxx class actions without personal injuries probably seek medical monitoring. This remedy certainly makes sense in a case in which a disease process can be latent before the disease appears. In the diet-drug litigation, for example, the class action settlement included a medical monitoring component for people experiencing heart damage. If the science of the Vioxx case does not support this type of relief as the science develops, then those cases may not get very far, but I do not see the harm in making the argument.

As for that article about consumer class actions that you cite to, doesn't the objection the author is making really concern consumer fraud laws as opposed to the class-action remedy? Most consumer fraud statutes around the country do not require reliance on the part of consumers, irrespective of whether it's an individual case or a class action. The rationale, I guess, is that companies and individuals should be deterred from engaging in deceptive practices with respect to consumers; this deterrence effect is heightened by not requiring the consumer to show reliance, even though the consumer may have relied. The standard, in other words, is typically looser than what's required to be proved in a case of common law fraud. You can argue about whether that's a good choice to make, but I don't think class actions, pharmaceutical litigation, or Vioxx are really very pertinent to the debate. If I've misunderstood your meaning, however, please let me know.

mythago

But selling goods and services is a socially productive activity

The question isn't whether it's OK to sell goods and services. It's whether it's OK for a company to lie materially about its products. Arguing "no harm done" works just as well for the case where your bullet missed as where your lies did.

Overdeterrence is an actual issue--which is why shooting at people is a criminal offense and lying about your products, in most cases, isn't.

Evan

I deleted the comment that was here, since it did not have anything to do with the topic of the post and was meant primarily (in my opinion) to speak ill of another lawyer who was identified by name and who is not a public figure.

If the author of the comment objects to my deletion, he should please e-mail me.

Eh Nonymous

Ted: You make an interesting and valuable point about my anonymity. However, I am not engaged in the sale of goods or services _in the online persona involved_. If I were in business as ehnonymous, ltd., then my fraudulent self-description might be material to, well, anything.

But surely even you'd agree that lying in conjunction with the marketing and sale of drugs isn't like me remaining anonymous while we banter online? In my real job, I am nonymous. But a trademark lawyer would probably agree that free blawgs, free comments, and free speech are very much not about commerce, and so nobody can really rely on anything- or be harmed by it.

StrangeLawyer

It is interesting ... 800 cases. Presuming $200K to try each case, why won't Merck put you in a box and make you try 5 cases?

What happens when you lose 3?

Beasley Allen has 2000 cases. Do they have 50Million to try them all?

Ted

Evan: I don't think there are too many Vioxx class actions like this

There are several purported nation-wide and state-wide classes of plaintiffs seeking refunds for the price paid for prescriptions of the drug that were actually used; the classes explicitly exclude those who have suffered personal injury. It's the same type of bogus lawsuit that was rejected by Judge Easterbrook in Firestone and countless judges elsewhere in various pharmaceutical and products cases but endorsed by the idiosyncratic jurisprudence of Madison County.

Eh: All you're arguing is that your conduct hasn't harmed anyone. You haven't explained why a plaintiff who hasn't been harmed by an incorrect statement in the marketing of a drug is any different.

Mythago, a company can inadvertently commit "consumer fraud" without ill intent while engaging in socially productive activity. Remember, most consumer fraud statutes do not require a showing of intent. So the relevant comparison is "firing a gun at someone" vs. "selling goods and services."

Evan

Ted: My prediction is that all those Vioxx class actions that you mention (and thanks for correcting my misunderstanding about the number of such cases) will all go away by virtue of a single ruling by the MDL judge; or, in the event that the theory is successful, will all morph into a single nationwide class in the federal court. I understand, however, that you still disagree with the theory. As for your reference to Madison County, I know that's something else you disagree with. For the record, 99.9% of my own Vioxx litigation will take place in venues other than Madison County--although I admit to trying to keep more cases than that there.

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