30 décembre, 2006 09:38
Mass Torts Roll Call
The American Lawyer
December 1, 2006
A number of mass tort cases have followed asbestos litigation and the state tobacco settlement. But none of them appear to have the lifespan or fee-earning potential of those efforts. What follows is a summary of several recent mass torts and their current status.
Baycol
Defendant: Bayer AG
Claim: Cholesterol-lowering medication caused potentially fatal muscle deterioration
MDL: Federal cases transferred to Minneapolis district court judge Michael Davis in December 2001
Status: Bayer agreed early in litigation to settle rhabdo claims, but said it would not pay for any other claimed injuries. All five Baycol trials resulted in defense verdicts. The litigation is now winding down, says defense counsel Philip Beck of Bartlit Beck Herman Palenchar & Scott, with Bayer settling 3,050 cases for approximately $1.15 billion.
Diet drugs (Fen-Phen)
Defendant: American Home Products Corporation (now Wyeth)
Claim: Combination of drugs known as fen-phen, intended for weight loss, caused heart valve damage
MDL: Federal cases transferred to Philadelphia district court judge Harvey Bartle III in December 1997
Status: Wyeth spent billions in early settlements in advance of a global deal in 1999. A $3.75 billion settlement trust was subsequently crippled by tens of thousands of claims, some allegedly fraudulent. The litigation is ultimately expected to cost Wyeth at least $20 billion.
Lead Paint
Defendants: Paint manufacturers including The Sherwin-Williams Company and NL
Industries, Inc., as well as smaller manufacturers, landlords, and mortgage banks.
Claim: Exposure to lead paint caused nerve and brain damage, especially in infants and toddlers. Defendants failed to act to correct lead contamination.
Status: Motley Rice, the most prominent lead paint plaintiffs firm, continues the alliance with state government officials that was so effective in the tobacco litigation. (There are also hundreds of individual lead paint personal injury suits, but Sherwin-Williams defense counsel Paul "Mickey" Pohl of Jones Day says causation has proved difficult for plaintiffs to establish in the individual suits.) In February 2006 a jury in Rhode Island returned a finding that lead paint constituted a public nuisance in the state, and that three lead paint manufacturers were responsible for the cleanup of 300,000 homes.
Meridia
Defendant: Abbott Laboratories
Claim: The diet drug caused heart and circulatory complications, including heart attack and stroke
MDL: Federal cases transferred to Akron district court judge James Gwin in August 2002
Status: In 2004 Judge Gwin granted Abbott's summary judgment motion, finding that Abbott's warning label was adequate, and dismissing all of the approximately 100 cases in the MDL. The U.S. Court of Appeals for the Sixth Circuit affirmed in 2006.
Methyl Tertiary Butyl Ether (MTBE)
Defendants: Major oil companies
Claim: The gasoline additive contaminated underground water reserves
MDL: Federal cases transferred to Manhattan district court judge Shira Scheindlin in October 2000
Status: Baron & Budd and Weitz & Luxenberg are co-lead counsel for plaintiffs in the MDL, which involves claims by about 200 municipalities, water districts, and individual well owners. Trial of the first two cases is scheduled for fall of 2007. Baron & Budd partner Scott Summy says he has already settled more than a dozen MTBE cases for more than $100 million. He estimates that total damages will top $1 billion.
Rezulin
Defendant: Warner-Lambert Company
Claim: The diabetes drug caused liver damage
MDL: Federal cases transferred to Manhattan district court judge Lewis Kaplan in June 2000
Status: In 2005 Judge Kaplan granted defense Daubert motions, excluding claims by plaintiffs who could not demonstrate liver damage while taking Rezulin. Warner Lambert's successor, Pfizer Inc, subsequently established a fixed settlement fund for the state and federal court plaintiffs. The size of the fund is not public.
Prempro
Defendant: Wyeth
Claim: The hormone replacement drug caused breast cancer and stroke
MDL: Federal cases transferred to Little Rock district court judge William Wilson, Jr., in March 2003
Status: There have been two trials so far in this 5,000-case litigation. Wyeth won the case tried before Judge Wilson. In the second trial, in state court in Pennsylvania, the plaintiffs, a breast cancer patient and her husband, won a $1.5 million damages verdict, but several days later, in a sealed order, the judge declared a mistrial. Wyeth settled in the third Prempro case scheduled for trial.
Silica
Defendants: Dozens of companies, including manufacturers of silica blasting sand,
sand-blasting equipment, and respirators
Claim: The silica used in sand-blasting and foundry work lodged in the lungs of workers and caused respiratory damage
MDL: Federal cases transferred to Corpus Christi district court judge Janis Graham Jack in September 2003
Status: In a blistering ruling in June 2005, Judge Jack said that most of the 10,000 silica cases "were manufactured for money." She excoriated plaintiffs lawyers and their expert physicians, citing examples of manufactured diagnoses of silicosis. A criminal investigation was launched in the wake of her ruling. Jack remanded cases to state courts, where the litigation has withered.
Vioxx
Defendant: Merck
Claim: The pain reliever caused heart attacks and strokes
MDL: Federal cases transferred to New Orleans district court judge Eldon Fallon in February 2005
Status: Facing more than 24,000 cases, Merck has announced a policy of settling none. As of November 2006, there were ten trials in state and federal court. Merck won five, plaintiffs won four, and one defense verdict was overturned and set for retrial in state court in New Jersey. Merck faces an increasingly busy trial schedule in coming months, including a multiplaintiffs trial in New Jersey.
Welding Fume
Defendants: Manufacturers and distributors of welding rods, including such companies as General Electric Company, Lincoln Electric Company, and Caterpillar Inc.
Claim: Welding fumes caused Parkinson's-like neurological impairment
MDL: Federal cases transferred to Cleveland district court judge Kathleen McDonald O'Malley in June 2003
Status: Twelve of the more than 7,000 welding rod cases in state and federal court have been tried. Only one, in Madison County, Illinois, resulted in a plaintiffs verdict. (Another settled for $1.5 million on the eve of trial.) Despite a 2005 pro-plaintiff Daubert ruling by Judge O'Malley, defense counsel John Beisner of O'Melveny & Myers says the number and size of claims have diminished considerably in the wake of defense verdicts.
