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Nagareda on mass tort settlements and client consent



Vanderbilt lawprof Richard Nagareda, guestposting at TortsProf:

...In recent years, a new arrangement has emerged, to the point of spawning what is now an emerging scholarly literature about its operation and legitimacy. The 2007 settlement arrangement used to resolve mass tort litigation over the prescription pain reliever Vioxx exemplifies this new development. The Vioxx deal is striking in that it did not actually resolve a single extant Vioxx claim. The contracting parties were not the defendant manufacturer Merck & Co. and any individual Vioxx plaintiff. Rather, the contracting parties consisted of Merck and the small number of law firms within the mass tort plaintiffs' bar with significant inventories of Vioxx claims. ... For critics, the Vioxx deal exemplifies a deeply troubling trend toward the exalting of closure in mass torts to the detriment of legitimate consent.

The law firms agreed to "recommend" settlement to all their clients and, increasing the pressure, to withdraw representation from holdout clients to the extent permitted by legal ethics. Another step toward recognizing the lawyers as parties in interest to at least as great an extent, if not more so, than their clients?

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.