April 16, 2008

Reviver statutes and church-abuse suits

Ted has an important article in National Review Online today on the ill-considered campaign to revive old claims against the Roman Catholic Church and other defendants. The idea of reopening lapsed statutes of limitation has also been pursued extensively in the context of asbestos, lead paint and other product liability, as Ted notes at greater length in his recent AEI Liability Outlook piece.

April 7, 2008

"Resurrect Rule 11"

In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It's time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society's Engage.

April 4, 2008

Zombie Litigation

My latest Liability Outlook examines the problems of retroactive lawmaking and litigation, especially reviver statutes, and even Obama fans will find something to like:

The controversy over whether and how to seat the Michigan and Florida delegations at the Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by "reviving" claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration's antiterror surveillance program, works to protect settled expectations.

Among matters discussed: litigation against Catholic priests and the Michigan legislature's proposed retroactive repeal of pharmaceutical tort reform in H.R. 4045. Walter has previously discussed the subject.

March 25, 2008

California's AB 1891 and the curate's egg

Once a familiar expression, the "curate's egg" meant an egg that would not be rejected because it was good (unspoiled) in parts -- curates being perhaps seen as desperate enough to accept such a thing. The phrase also describes many lawsuits, which are not meritless in their entirety but include some meritless elements. According to the Civil Justice Association of California, section 128.5 of the state's Code of Civil Procedure currently allows judges to impose sanctions only if an entire lawsuit is without merit -- and since many of the suits in question are curates' eggs, good in part, targets are left with no effective remedy for their (perhaps predominant) baseless elements. Hence the introduction of Assembly Bill 1891 (Niello), which allows judges more latitude to impose sanctions for partially baseless actions. Cal Law's Legal Pad gives the measure little chance in the Democratic-dominated Assembly -- and yet, according to a legislative calendar, it is getting a hearing today.

February 25, 2008

Litigating Backwards

The Supreme Court has just declined to hear a challenge to procedures being applied in West Virginia to 700 lawsuits against the tobacco companies. The tobacco companies objected to the West Virginia courts' strange practice of considering punitive damages before any individual smoker has demonstrated liability or a compensable injury.

Continue reading   Litigating Backwards

February 23, 2008

Forum-shopping in the Eastern District of Texas: In re Volkswagen of America

It's not just patent cases that plaintiffs forum-shop into Marshall, Texas. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed here Nov. 27:

Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas ("Dallas Division"). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.

The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, "5th Circuit Restricts Trial Courts' Discretion in Venue Motions", Texas Lawyer, Nov. 5; John Council, "5th Circuit Case Could Reduce Product Liability Caseload in Texas' Eastern District", Texas Lawyer, Aug. 7). Michael C. Smith, the plaintiffs' attorney in the case, announces on his blog that last week the Fifth Circuit vacated the decision and granted an en banc rehearing, which will decide how much deference a forum-shopping decision will get in the Fifth Circuit when a defendant shows good cause for transfer under 28 U.S.C. § 1404(a). (h/t A.S.)

February 10, 2008

O'Connell papers on early offers

Prof. Jeffrey O'Connell of the University of Virginia, long associated with "early-offer" proposals to encourage prompt settlement of tort disputes, has two recently posted papers on SSRN on the topic. In "An Empirical Assessment of Early Offer Reform for Medical Malpractice" O'Connell is joined by co-authors Joni Hersch and W. Kip Viscusi of Vanderbilt:

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic losses and reasonable attorney fees. Using a large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Non-economic damages comprise about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by two years by the early offer reform, and litigation costs will be reduced by an average of $100,000 to $200,000 per claim.

And in "Binding Early Offers versus Caps for Medical Malpractice Claims?" O'Connell writes:

Like damages caps, early offer reform promises reduction in the costs of medical liability cases. In contrast to damages caps, early offer reform offers advantages to both claimant and defendant. Under early offer, the defendant would have the option to offer an injured patient periodic payments for the patient's net economic losses as they accrue, but not payments for noneconomic losses (pain and suffering). If an early offer were made and accepted, that would settle the claim. This commentary explains how an early offer reform might work and summarizes data from a recent closed claim study of medical malpractice cases in Texas and Florida. The data show widespread opportunities for successful early offers and provide evidence that substantial per case savings would result.

Earlier here.

February 8, 2008

Milberg Weiss, guardians of class action collegiality?

A defense attorney argues that the loss of Milberg Weiss has resulted in a loss of collegiality in litigation:

[T]he new lawyers are importing tactics from product liability cases, resulting in "an increasing inexorable tide of nastiness and incivility." In particular, he referred to tactics such as filing discovery sanction motions, noting that while good-intentioned people on the defense side are trying to find "millions of pieces of paper," they are being accused of "all sorts of high crimes and misdemeanors" by these younger attorneys who are "hijacking" the litigation process.

Alexandra Lahav is unimpressed:

Sometimes aggressive litigation is what addresses the merits, as compared with, say, just settling all cases in some smokey back room. I'm not saying that is what lawyers were doing before the entry of these over-caffeinated folks. But I'm also not against a cup or two if you're a bit slow in the morning. How do you determine the "merits" in the absence of litigation?

But aggressive litigation that concocts fictional discovery violations and sanctions is exactly the opposite of litigating on the merits. It's about trying to win a case on grounds other than the merits (see, for example, the Sunbeam case or John Edwards's infamous Valerie Lakey victory; see also March 2006 and October 2005) or to make life so miserable for opposing counsel that they have conscious or subconscious bias to settle a case that should be litigated.

There's also some false nostalgia going on if someone is claiming that Lerach et al. weren't engaged in nasty scorched-earth litigation themselves. Just ask Daniel Fischel.

February 5, 2008

A milestone in curbing discovery abuse?

Last month, to quote the Law.com summary, "U.S. Magistrate Judge Barbara Major sanctioned five attorneys from Day Casebeer Madrid & Batchelder and one from Heller Ehrman for their roles in 'monumental' discovery violations in a patent infringement case between Qualcomm Inc. and Broadcom Corp." David McGowan at Legal Ethics Forum sums up the ruling (PDF) here and here, and both John Steele and the NLJ's Solovy & Byman predict that it foreshadows a more serious crackdown on discovery abuse in federal litigation. More links here.

January 22, 2008

"The Problem of Multidistrict Litigation" at Tulane Feb. 15-16

An impressive lineup produced by the Tulane Law Review includes Russ Herman (Vioxx PSC), Judges Carol Higbee and Eldon Fallon (Vioxx), and Judge Janis Jack (silicosis). Other impressive figures speaking include, but are not limited to, Judge Lee Rosenthal, the indicted Dickie Scruggs, and law bloggers Alexandra Lahav and Mark Herrmann. (via Scheuerman)