FROM THE BENCH AND IN THE TRENCHES: JUDGE, PLAINTIFF, AND DEFENDANT PERSPECTIVES ON PRODUCTS LIABILITY: MASS TORTS JUDGE MARINA CORODEMUS (RET.) WEDNESDAY, SEPTEMBER 24, 2014 2:00 - 3:00 P.M. EDT Medmarc.com JUDGE MARINA CORODEMUS (RET.) [email protected] Judge Marina Corodemus is the Director of the ADR Practice of Corodemus & Corodemus, a dedicated Alternative Dispute Resolution Firm that serves an national clientele in the areas of Mediation, arbitration and Special Master. 732-603-0005. She is the former Mass Court Judge in New Jersey. Judge Corodemus now serves as Special Master in two of the largest MDL Mass tort cases in Federal Court and the largest environmental cases in any State Court. 9/24/2014 2 ELLEN RELKIN ESQUIRE-PLAINTIFF Ellen Relkin is, Of Counsel to the firm Weitz & Luxemberg, in their New York City office. Ms. Relkin, whose practice focuses on pharmaceutical and medical device product liability and toxic tort matters, has represented plaintiffs injured by the metal on metal hip implants including the DePuy ASR, the Stryker Rejuvenate, Biomet Magnum, as well as the birth control patch Ortho Evra, the oral contraceptive Yaz, Hydroxycut dietary supplement products, among other defective medical products. She currently serves as co-chair of the plaintiffs National steering Of Counsel Weitz & Luxenberg, P.C. committee for DePuy Hip law suits and lead counsel [email protected] for the New Jersey Stryker Rejuvenate litigation. She (212) 558-5715 has been the strategist and author of many prominent mass tort litigation teams. Ms. Relkin is a certified trial attorney in the State of New Jersey. 9/24/2014 3 PAUL J. (P.J.) COSGROVE P.J. represents medical device and pharmaceutical manufacturers in pattern litigation or mass torts (particularly “multidistrict litigation”), and in “oneoff” product liability suits, serving as national coordinating and trial counsel in both large, complex matters, and individual cases. Partner, [email protected] 513.698.5034 9/24/2014 4 WHAT IS A MASS TORT? WHO CARES?  A mass tort is a civil action involving numerous plaintiffs against one or a few corporate defendants in state or federal court. Law firms sometimes use mass media to reach possible plaintiffs.  The three main categories of mass torts include:  Mass disaster torts  Mass toxic torts  Product liability torts  In U.S. federal courts, mass tort claims are often consolidated as multidistrict litigation. In some cases, mass torts are addressed through class action.  Wikipedia 9/24/2014 5 HOW DOES A CASE BECOME MASS TORT?  FEDERAL LEVEL:  28 USC 1407 The Judicial Panel on Multidistrict Litigation (“the Panel”)  State Courts:  New Jersey: Supreme Court formally promulgated Rule 4:38A to provide for the centralized management of mass torts in New Jersey. This rule provides that:  The Supreme Court may designate a case or category of cases as a mass tort to receive centralized management in  accordance with criteria and procedures promulgated by the administrative Director of the Courts upon  approval by the Court. Promulgation of the criteria and procedures will include posting in the Mass Tort Information Center on the Judiciary’s Internet website  (www.judiciary.state.nj. us). 9/24/2014 6 ARE ALL MASS TORTS CLAS S ACTIONS?  Is the reverse true? 9/24/2014 7 PLAINTIFFS’ CONSIDERATIONS IN MT? Selecting litigations -reviewing the medical and scientific literature -assessing warning labels and what was known about the risks -considering alternative causes for the injuries Defining the plaintiff and case criteria -case screening challenges -magnitude of injury -impact of internet on clients hiring multiple counsel Selecting forum/venue(s) - Should the cases be coordinated? -Are there multiple feasible venues and if so, utilize multiple fronts 9/24/2014 8 DEFENSE CONSIDERATIONS? 1. 1. Stop a Mass Tort Before It Starts 2. 2. Make Plaintiffs Prove a Prima Facie Case 3. 3. Science Matters 4. 4. Think Outside New Jersey 5. 5. Candor and Collegiality Count 6. 6. Pick Your Battles Wisely 7. 7. Preserve, Preserve, Preserve 8. 8. Think Globally 9. 9. Act Locally: Get and Use Local Counsel 10. 10. Play Nice  Top 10 Tips for Defending Mass Torts in NJ  By James J. Ferrelli and Alyson B. Walker  June 2011 LJN's Product Liability Law & Strategy 9/24/2014 9 THE DEFENSE RESPONSE  Coordinate Cases in One Federal (MDL) Court With Independent Judges  Force State Court Actions Into One or Two “Home” Courts Where Coordination Also Is Possible  Insist on Coordinated Discovery and Properly Phased Trials REMOVAL TO FEDERAL COURT 28 U.S.C. SEC. 1446(B)  A lawsuit may be removed within 30 days after the “initial pleading’ that establishes complete diversity “except that a case may not be removed on the basis of [diversity] jurisdiction more than 1 year after commencement of the action.”  “Fraudulent Joinder (pharmacies, sales reps, other manufacturers and distributors) physicians. CASE MANAGEMENT IN MASS TORT LITIGATION IN RE ENGLE CASES, ___ F.3D ___, 2014 WL 4435893, *10 (11TH CIR. SEPT 10, 2014)  “the Special Master compiled data on the 1,724 questionnaires that counsel submitted on time. A number of problems cropped up; for example, 521 personal injury plaintiffs had been dead at the time of filing—some for quite a long time; 66 wrongful death actions were brought on behalf of “survivors” of a smoker who was still alive; 64 wrongful death cases involved deceased smokers with no survivors; and 39 wrongful death cases involved smokers who died more than two years before the Engle class action was filed (as noted, Florida's wrongful death statute has a two-year limitations period,) [ ]). [ ] These problems and others led the Special Master to conclude that even “the current universe of 1,700 cases [in which questionnaires were returned] is still inflated to an unknown extent by (1) less than enthusiastic or capable plaintiffs and (2) weak, even nonviable, claims.” Id. at 4.   “For today's purposes, we only focus on two of these problems: the predeceased personal injury plaintiffs and the decedent-smokers who died more than two years before Engle was filed. It is worth noting before we proceed that the questionnaire process culled hundreds more cases from the District Court's docket, including over 1,000 in which no questionnaire was ever submitted, even after the court twice allowed plaintiffs' counsel to submit late questionnaires. 9/24/2014 13 AUTHORITY FOR LONE PINE ORDERS?  No federal rule expressly authorizes use of Lone Pine orders  The “Lone Pine” decision was an unpublished trial court decision from NJ involving an unusual toxic tort claim and thousands of plaintiffs  NJ Appellate courts have declined to follow “Lone Pine” since expert reports are to follow fact discovery  Federal judges enter Lone Pine orders based on wide discretion to manage discovery under Rule 16 and supporting case law FED. R. CIV. P. 16(C)(2)(L)  The Court may consider and take appropriate action on the following matters: adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems. REQUIREMENTS OF LONE PINE ORDERS  Basic facts usually provided in fact sheet or discovery responses detailing exposure and alleged injuries  Documentation supporting such allegations Physician certification of drug usage and injury Records documenting exposure  Expert reports describing theories of general/specific causation  Statements regarding specific issues or defenses, such as statute of limitations TIMING  Before discovery?  Strudley (Colo.2d Jud. Dist. Ct.)  Acuna (5th Circuit)  Or after (some) discovery?  Vioxx (E.D. Louisiana)  Fosamox (S.D. New York)  In relation to settlement? COUNTERARGUMENTS  Cuts off plaintiff’s right to discovery and is contrary to the rules of        civil procedure Only appropriate in rare situations Misunderstood and improperly used term and tool Interferes with protections of rules governing summary judgment Overly burdensome Shifts burden May be appropriate only for cases that reject settlement Not needed as ordinary discovery tools can obtain the needed information BELLWETHER TRIALS GOOD OR BAD?  Developments in Selection and Trial of Bellwether Cases Paul D. Rheingold Rheingold, Valet, Rheingold, McCartney & Giuffra LLP New York, New York  A common solution for the problem of trying a mass of cases arising out of the same disaster is first to try a selected group of plaintiffs. This approach has been called many things, including a test case, representative plaintiff trial, and a bellwether case. Plaintiffs selected will have cases that will aid in deciding issues for the long run in the litigation. The early outcome may, at a minimum, help the judge and the parties learn more about the realities of liability and damages for all cases. The outcome can also be planned to have a binding effect upon cases yet to be tried through the operation of collateral estoppel or using verdicts for plaintiffs for aggregation. 9/24/2014 19 BELLWETHER WHAT?  The "bellwether" concept (so named for the lead sheep in a flock which wore the bell) suggests a lead case, one plaintiff as a stand-in for all. The "representative" term more often refers to a group of plaintiffs whose claims are typical of the variety of plaintiffs in the group, e.g., those who may differ because of the type of injuries, or their mode of exposure, or some legal defenses. The "test case" falls somewhere in between. § 10:46 Law and powers in use of test cases Research References West's Key Number Digest, Federal Civil Procedure rs=1951 It is generally believed that the courts have the rights arising out of inherent powers of case management to select representative cases to be tried in lieu of trying all plaintiffs‘ cases at one time. This would be so under a class action, a consolidation or other means of congregations of cases. In an asbestos case, the Fifth Circuit found, however, that a court would be overstepping its power in the use of representative plaintiffs if the outcome of that litigation were used to decide the liability for an entire class of asbestos  10- 9/24/2014 20 CHOICE OF LAW? MINE IS BETTER THAN YOURS  How does a court decide which law to apply?  How is that done?  Why is it Important? 9/24/2014 21 EXPERT TESTIMONY  DAUBERT  FRYE  DAUBERT LITE 9/24/2014 22 E-DISCOVERY IN MASS TORTS  Takeda Part One: Prelude To Disaster? — Takeda Can’t Narrow Its Broadly-Written Litigation Hold  By Michael C. Landis on April 14, 2014  Posted in Legal Decisions & Court Rules  An opinion from Judge Rebecca Doherty in In re Actos (Pioglitazone) Products Liability Litigation, MDL No. 11-2299, provides valuable lessons on the consequences of drafting overly-broad litigation hold notices, as well as the importance of providing evidence from knowledgeable witnesses in defense of document retention procedures.  In a Rule 37 and spoliation motion, the plaintiffs alleged that defendants, Takeda Pharmaceuticals U.S.A., Inc. and several of its affiliates in the United States, Japan, and Europe (collectively “Takeda”), purposefully deleted the files of 46 former employees, including several high-level officers. The plaintiffs sought a default judgment or, in the alternative, a combination of sanctions that included an adverse inference jury instruction, cost-shifting, and a fine. 9/24/2014 23 SANCTIONS FOR WHAT COURT CONSIDERED SPOLIATION OF ESI  In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995 (W.D. La. Jan. 30, 2014) (“Actos”) 9/24/2014 24 SPECIAL MASTER LIEN RESOLUTION CLAIMS  Role of:  SPECIAL MASTER  LIEN RESOLUTION CLAIMS MANAGER 9/24/2014 25 KANSAS SUPREME COURT ADOPTING THE DEFINITION OF “AGGREGATE SETTLEMENT” FOUND IN THE ALI PRINCIPLES  A non-class action aggregate settlement is a settlement of the claims of two or more individual claimants in which the resolution of the claims is interdependent. Key features of interdependency are a condition that a specific percentage of claimants must accept the settlement and an allocation among the claimants of a maximum aggregate settlement fund under which each claimant cannot accept or reject his or her share of the settlement without affecting the other claimants' settlement shares. TILZER, v. DAVIS, 288 Kan. 477, 204 P. 3rd 617. (Kansas Supreme Court 2009>) 9/24/2014 26 ETHICS IN MASS TORTS  CLIENT PLAINTIFF  CLIENT DEFENDANT  PLAINTIFF ATTORNEY  DEFENSE ATTORNEY 9/24/2014 27 MASS TORTS GO GLOBAL 9/24/2014 28 QUESTIONS? 9/24/2014 29