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Tiger Joyce, President of the American Tort Reform Association, authored an impassioned op-ed for the Washington Times yesterday entitled A Class-action Blow to U.S. Manufacturing.  Joyce argues that the entire manufacturing industry is at risk if the United States Supreme Court declines to grant certiorari of the Sixth Circuit’s decision in the case of Whirlpool v. Glazer, No. 12-322, in which the court upheld class certification of claims that washing machines were defectively designed, causing chronic mold problems.  Whether Joyce’s warning is hyperbole or prescience remains to be seen, but the case does raise some interesting issues of note to class action practitioners.  The issues presented for review are as follows:

1. Whether a class may be certified under Rule 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf.

2. Whether a class may be certified without resolving factual disputes that bear directly on the requirements of Rule 23.

3. Whether a class may be certified without determining whether factual dissimilarities among putative class members give rise to individualized issues that predominate over any common issues.

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In December, I posted this preview of the then forthcoming book, Drug and Device Product Liability Litigation Strategy, by Mark Herrmann and David B. Alden (Oxford University Press 2011).  I received my copy of the book just before the holidays, and it is as good as advertised. 

The book has many strengths.  It is comprehensive, generally accessible, eloquently written, and well-researched.  Perhaps its greatest accomplishment is the breadth of its usefulness to a wide range of readers with varying levels of sophistication.  The book starts at the beginning, with a discussion of the history of mass tort litigation and a summary of the relevant FDA regulations.  Following a discussion of each of the typical causes of action in drug and device cases, the book goes on to cover every conceivable procedural phase, from MDL assignment, to motions practice, to discovery, and finally through the rarest of events in mass tort litigation: trial.  The step-by-step approach makes the book a perfect starting point for a new associate, client, or colleague who is just becoming familiar with medical products litigation.  But packed in to the logically organized chapters are a wealth of practice tips and research summaries that make the book a handy practice aid to even the most seasoned practitioner. 

The book’s authors admit (and make no apologies for the fact) that it has a defense-oriented slant, and it’s main audience would certainly be defense-oriented practitioners and corporate legal departments, but that does not mean that it would not be a useful guide to plaintiffs in pharmaceutical or other mass tort litigation. 

In short, this book is a welcome addition to my personal law library.  Now, my problem is figuring out how to protect it from being permanently “borrowed” from one of my colleagues.

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Ok, just a bit further…

Mark Herrmann, former contributor to the wildly successful Drug and Device Law Blog, sent me a note the other day that his book co-authored with Jones Day Partner David B. Alden entitled Drug and Device Product Liability Litigation Strategy (Oxford Univ. Press 2011) is now available.  Here is a link to the book’s page on OUP’s website, where you can get more information and order a copy.

The following is a slightly edited version of the summary that he sent me:

The book is generally a reference work, so big chunks of the book simply bring a beginner up to speed on the defense of drug and device product liability cases. But we say a few things in the book that are new and different. Some of the interesting stuff includes:

1. At pages 181 to 186, we analyze every motion to centralize drug or device cases filed with the MDL Panel from the Panel’s creation through the end of 2010. We count the number of motions granted and denied, and we break down the percentages by time period, showing that the Panel has become slightly more likely to centralize cases as time has passed.

2. At pages 219 to 222, we analyze the use of “direct filing provisions,” which allow plaintiffs to file their complaints directly in the MDL transferee court, rather than being required to file in their home courts and then asking the MDL Panel to transfer the cases. If litigants are not careful, direct filings provisions can alter the applicable choice-of-law analysis, change the identity of the court that tries the case, or alter the trial court’s personal jurisdiction over third-party defendants.

3. Finally, our discussion of the scope of preemption for prescription drugs after the Supreme Court’s decision in Wyeth v. Levine may be noteworthy. At pages 339 to 343, we identify five situations in which claims against prescription drug manufacturers may be preempted even after the Supreme Court’s restriction of preemption in Levine.

We’d love to start a conversation on these issues. And, if we’ve taken the time to write the book, we’d sure like interested folks to know that the book exists.

I have not had a chance to read it yet, but given Herrmann’s body of work on Drug and Device Law Blog, it is guaranteed to be of the highest quality.  It sounds like the quintessential guide to the very specialized area of mass tort and class action litigation, authored by two of the world’s foremost experts on the subject.

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Last week, I posted a short note about the Eighth Circuit’s decision in In re Baycol Products Litigation.  Here is a more in-depth synopsis, thanks to fellow Baker & Hostetler partner Joe Ezzi:

The Eighth Circuit Court of Appeals recently affirmed a district court order enjoining state court plaintiffs from pursuing a class action because the district court had already denied certification of an identical class in federal court.  In re Baycol Products Litig., ___ F.3d ___ (8th Cir. January 5, 2010).

A state court putative class action was filed by George McCollins in West Virginia in 2001.  Bayer removed the case and it became part of a multidistrict action consolidated before the district court in Minneapolis.  Class certification was denied in the McCollins MDL class action, with the district court making certain legal conclusions concerning economic loss requirements under West Virginia law related to predominance.  At the same time, a similar West Virginia state court class action was pending against Bayer, albeit with different putative class representatives.  Following the district court’s denial of class certification, Bayer moved the district court to enjoin the plaintiffs in the West Virginia state court action from pursuing a class action because, as absent putative class members of the McCollins lawsuit, they could not relitigate the previous federal court decision denying certification of a West Virginia economic loss class.  The district court granted Bayer’s request for an injunction under the All Writs Act. 

The Eighth Circuit, in affirming the district court order enjoining the West Virginia state court class action, found that the West Virginia state court plaintiffs sought “certification on the same legal basis of the same class already denied in this case.”  In re Baycol Products Litig., ___ F.3d ___ (8th Cir. January 5, 2010), slip op. at 6.  Thus, “in the context of MDL proceedings, certification in a state court of the same class under the same legal theories previously rejected by the federal district court presents an issue sufficiently identical to warrant preclusion under federal common law.”  Id. at 10.  Further, relying on the Seventh Circuit decision in In re Bridgestone/Firestone, 333 F.3d 763 (2003), the Eighth Circuit noted that the putative class representative in the federal action was in privity with the state court class representatives for purposes of collateral estoppel based on allegations of adequacy of representation and because both putative class representatives asserted the same claims.

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