At its height, the mass-tort litigation against Merck for its drug Vioxx received a great deal of press attention. And, when Merck settled with most of the plaintiffs, its decision to only settle with attorneys who were willing to resolve their entire inventory of Vioxx cases generated controversy among the legal commentariat

Last week, one set of plaintiffs’ lawyers placed an unusual coda onto the Vioxx litigation. They filed a class action challenging the Vioxx settlement, Weeks v. Merck & Co., 2012 U.S. Dist. LEXIS 78954 (E.D. La. Jun. 6, 2012).. (They did so on behalf of … Continue Reading

There’s a fascinating strategic story buried deep within Snigdha Prakash’s book on the early Vioxx litigation, All the Justice Money Can Buy: Corporate Greed on Trial. It’s revealed in two passages, one toward the beginning of the book, one toward the end.

At the beginning of the book (and the trial it covers), New Jersey Superior Court Judge Carol Higbee [] proposes bifurcating several upcoming Vioxx trials into two phases: a general causation phase, followed by a damages phase. As Prakash reports:

The plaintiffs embraced the proposal. Trying several cases together would give them multiple opportunities to beat Merck

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 As both plaintiffs and defendants get more sophisticated, the problem of how to litigate mass torts grows more complicated. In particular, both litigants and courts struggle with the question of when a verdict should have preclusive effect in mass tort litigation, and when it should not. Before he passed away last year, Vanderbilt law professor Richard Nagareda made some progress on this question in Embedded Aggregation in Civil Litigation, an article for the Cornell Law Review. As Nagareda put it:

Each instance involves what this Article labels as a situation of “embedded aggregation.” In each, a doctrinal feature

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Fordham Law professor Howard Erichson (http://law.fordham.edu/faculty/1095.htm) has posted a new working paper that addresses the thorny issue of settlements in mass tort cases.  Titled Uncertainty and the Advantage of Collective Settlement, (forthcoming, DePaul Law Review) it posits six different types of uncertainty in mass torts, each of which he links to well-known cases. According to Erichson, there is uncertainty about

1. General causation (eg, Bendectin litigation)
2. Liability (tobacco/Agent Orange)
3. Exposure (ephedra/Wolburn leukemia clusters)
4. Product ID (asbestos)
5. Individual medical causation (Vioxx)
6. Damages

Erichson argues that, for cases 4, 5, and 6, aggregate settlement is … Continue Reading