Elizabeth Chamblee Burch's Blog

A curated reading journey through the complexities of law, justice, and power in modern America About This Curriculum This personal...

Those of you who have been following the opioid lawsuits know that on Monday, December 4, 2023, the Supreme Court will hear oral arguments over whether to allow the billionaire Sackler family behind Purdue Pharma to glom on to Purdue's bankruptcy without declaring bankruptcy itself.

But do you know what's at stake for mass torts? Professors Abbe Gluck (Yale), Adam Zimmerman (USC Gould), and I explore that question in a new paper forthcoming in Yale Law Journal Forum. As we explain, the case provides a critical opportunity to reflect on what is lost when parties in mass torts find the “behemoth” litigation system unable to bring mass disputes to a close, when they charge multidistrict litigation as a “failure,” and when defendants contend that sprawling lawsuits across national courts have thrown them into unresolvable crisis that only bankruptcy can solve. Harrington v. Purdue Pharma L.P. is just one of many recent examples of extraordinarily unorthodox and creative civil procedure maneuvers—in both the bankruptcy and district courts—that push cases further away from the federal rules and the trial paradigm in the name of settlement.

Unlike ordinary state and federal trial courts, bankruptcy courts don’t generally lay blame for millions of deaths; they efficiently distribute resources. Petitioners in bankruptcy aren’t called “victims” or “plaintiffs”; they are “creditors” with limited voting rights over the distribution of an estate. Bankruptcy courts don’t develop state tort doctrines. They don’t engage in broad discovery designed to reveal accountability and spur policy reform. They rarely utilize juries or hear testimony from tort victims anxious to have their day in court; instead, testimony tends to focus on the debtor’s financial health.

Yet diverse defendants—many of whom, notably, are not even in financial distress—from Catholic Diocese and Boy Scout abuse cases, to Johnson & Johnson talc, 3M’s earplugs, Revlon hair straighteners, and many more, have now looked to the bankruptcy court to use its inherent authority to invent new forms of procedure to find a path to global peace. Bankruptcy courts are attractive in part because they possess some powers that, ironically, state and Article III federal courts do not—they are the only American courts that can overcome federalism’s jurisdictional boundaries; they are only courts with the power to commandeer both state and federal litigants into a single forum and halt all other civil litigation no matter what court it is in. They also have stretched their own equitable powers to allow innovative corporate maneuvers, as in Purdue, that cabin liability and preclude future litigation even for entities not in financial trouble. But bankruptcy court is not supposed to be a superpower of a court that trumps all others in public litigation; it is instead, an Article I court designed for efficient, private resolution of claims, centered on capturing private value for private actors–not the elaboration and development of law and public norms.

You can read more here if you're interested.

And if you're wanting to catch up on the issues before SCOTUS next week, check out Charlotte Bismuth & Jonathan Lipson's podcast, Bankruptcy for Billionaires, where the three of us talk about MDL, opioids, and bankruptcy. All credit goes to Charlotte and Jonathan for the great image at the top!

Bayer and the plaintiffs’ lawyers suing it over its popular weed killer, Roundup, are playing a high-stakes, billion-dollar chess match. Like most corporate defendants in Bayer’s position, it wants lawsuits to end.

But finality eludes Bayer for two reasons.

First, non-Hodgkin’s lymphoma, the disease several juries linked to Roundup’s active ingredient glyphosate, doesn’t develop overnight. It takes a while, often 10-15 years after exposure. Yanking Roundup off the market today would still leave Bayer with at least another decade of litigation.

Second, Roundup makes Bayer lots of money. Sticking a warning label on it would hurt the company’s bottom line. Why would consumers risk cancer to kill dandelions?

Enter Bayer’s elaborate gambit.

Step one: preemption.

Bayer accurately predicted that the Ninth Circuit (despite a relatively conservative panel) would reject its argument that the Federal Insecticide, Fungicide, and Rodenticide Act, fondly known as FIFRA, preempts claims that it failed to warn weed exterminators about the risks of non-Hodgkin lymphoma. In May, the majority in Hardeman v. Bayer ruled that Mr. Hardeman’s failure-to-warn claim was “equivalent to” and “fully consistent with” FIFRA and thus not preempted under the Supreme Court’s 2005 precedent, Bates v. Dow Agrosciences LLC.

While it awaited the Hardeman decision, Bayer worked to manufacture a circuit split elsewhere that might tempt the Supreme Court to weigh in and reconsider Bates. For that, it tapped Dr. John Carson, a Georgia plaintiff who alleged a type of cancer that science has not linked to Roundup, malignant fibrous histiocytoma. Siding with Bayer, the Southern District of Georgia dismissed Dr. Carson’s failure-to-warn claim because FIFRA preempted it. Bayer won.

But that short-term win undermined its overarching goal. So, Bayer sacrificed by entering into a settlement of sorts with Dr. Carson: for $100,000, he would appeal the dismissal and the preemption ruling. Winning on preemption before the Eleventh Circuit would increase the likelihood of Supreme Court review, at least by a little, despite Bayer’s sly pay-to-appeal scheme.

The possibility of a circuit split and complete preemption serves another purpose, too. It acts like a sword of Damocles endangering plaintiffs who haven’t yet settled, haven’t yet sued, or haven’t yet developed non-Hodgkin lymphoma despite using Roundup. Plaintiffs won all three jury trials to date, notwithstanding a bifurcated trial structure that tends to favor defendants. Compared with the mature asbestos cases that led to the derailed Amchem settlement, the Roundup suits are barely entering grade school. But plaintiffs’ fortunes can turn.

Step two: certify a futures class.

Pressing the slimmest of advantages (after all, the Supreme Court grants certiorari in only around 3.4% of civil cases per year), Bayer teamed up with the same amenable plaintiffs’ counsel whose attempt at certifying a futures class last summer ended in a swirl of controversy and a withdrawn motion. Presenting a second, then a third futures class proposal, they purport to shelter three groups of class members from preemption’s peril:

(1) people diagnosed with non-Hodgkin lymphoma after Roundup exposure that haven’t hired lawyers yet;

(2) people who have used Roundup but haven’t yet developed non-Hodgkin lymphoma, and

(3) all of their spouses, parents, and dependent children—collectively, the “derivative claimants.”

But the preemption refuge and the benefits last a mere four years. And they come at a steep price. In exchange for notice, medical help, and some streamlined compensation, class members must give up punitive damages and medical monitoring claims, as well as bind themselves (with little wiggle room) to a seven-member science panel’s verdict about whether glyphosate can cause non-Hodgkin lymphoma.

After the four-year détente lifts, few plaintiff’s lawyers would litigate Roundup claims in the face of such weighty impediments.

For the gambit to work, the judge must certify the class. But Judge Vince Chhabria is no pawn and he declined to do so. His brief six-page opinion followed a day-long hearing transparently livestreamed in Brady-bunch boxes for a clamoring public to see.

In both the hearing and the opinion, Judge Chhabria challenged the settlement’s upside: Four years of medical monitoring for a disease with a 10-15 year latency period is “far less meaningful than the attorneys suggest.” Those with later diagnoses “will not be able to request compensation from the fund,” he wrote.

As Judge Chhabria pointed out, problems with the proposed futures class abound, including, most centrally, the constitutionality and utility of notice and the hamstrung tort claims. For plaintiffs, the downsides require “major sacrifices,” he explained.

First, on notice, what value does the settlement add that a well-incentivized plaintiffs’ bar lacks? The proposal allocates up to $55 million for settlement administration and notice costs for five months. Yet, over two years ago, the Wall Street Journal reported that plaintiffs’ lawyers spent an estimated $77.8 million to advertise Roundup lawsuits for eight months.

Setting aside the constitutional impossibilities of notifying future spouses and unborn children, what people need is meaningful information at a meaningful time. Noise fills the world. Our bandwidth is limited.

A Roundup user without cancer is far more likely to mindlessly scroll through whatever notices pop up than to engage and investigate. Someone newly diagnosed with non-Hodgkin lymphoma, however, is hungrily Googling for information and answers.

Second, consider what plaintiffs bestow upon Bayer by giving up punitive damages—absolution. But the alleged bad behavior continues. Imagine fining attempted murderers and freeing them to continue their spree. Roundup still lines store shelves and if it does what plaintiffs contend, it will endanger public health for decades to come.

First published in Westlaw Today on 6/2/2021

How'd your lawsuit go? If you're a plaintiff in a women's health related mass tort like #mesh, #Mirena, #PowerMorcellator, #NuvaRing, #talc, etc. please take a few minutes to confidentially share your experience with the justice system.

The study will close on December 15, 2020. If you haven't had a chance to participate and would like to, I would love to hear from you. I designed the study to give plaintiffs suing over women's health mass torts a chance to voice their experiences--good and bad--with the courts.

If you have participated or are an attorney with clients in these proceedings, would you mind helping me spread the word?

Participants' identifying information will be kept completely confidential and if you'd rather not include your name on your response, you're welcome to let me know separately (masstortsuga@gmail.com).

For those of you who have taken the time to participate and who have reached out to me, I am not sure that simply saying "thank you" could ever convey the depth of my gratitude to each of you. It is easy for those of us who teach and no longer practice law to lose sight of the critical human element behind every lawsuit. Talking with some of you has truly changed me, changed my perspective, broadened my view of justice, and deepened my commitment to fix the issues that so many of you have encountered. So, though it will never be enough, thank you for opening my eyes and for sharing your time, your stories, and your struggles with me.

Take the survey.

Or learn more about it.

Until they receive a notice that they have a case that has been transferred to a "MDL," even most lawyers have never heard of multidistrict litigation. So, if you're a lawyer or one of the many plaintiffs with a case that has been centralized through the MDL process, there's a lot to learn.

Through the American Law Institute's podcast, Reasonably Speaking, I had the opportunity to interview Yale Law and Yale Medical School Professor Abbe Gluck, defense attorney John Beisner of Skadden Arps, and plaintiff's attorney Shanin Specter of Kline & Specter.

We explore the basics of MDL as well as today's hot topics and current events: opioids, appeals, pelvic mesh, common benefit fees, and everything in between. We'd love for you to tune in! You can listen on Spotify, Apple, Google, Soundcloud, Stitcher, and Tunein here. That link will also take you to a wealth of free resources on those topics.

Or, if you'd prefer to watch the video, you can do so below.

https://vimeo.com/485599533

The perception of justice study that I've been working on since December of 2018 will close on December 15, 2020. If you haven't had a chance to participate and would like to, I would love to hear from you. I designed the study to give plaintiffs suing over women's health mass torts like pelvic mesh, Mirena, Mentor ObTape, Ortho Evra, talcum powder, Power Morcellator, and NuvaRing a chance to share their experiences with the courts (confidentially).

If you have participated or are an attorney with clients in these proceedings, would you mind helping me spread the word? Participants' identifying information will be kept completely confidential and if you'd rather not include your name on your response, you're welcome to let me know separately (masstortsuga@gmail.com).

For those of you who have taken the time to participate and who have reached out to me, I am not sure that simply saying "thank you" could ever convey the depth of my gratitude to each of you. It is easy for those of us who teach and no longer practice law to lose sight of the critical human element behind every lawsuit. Talking with some of you has truly changed me, changed my perspective, broadened my view of justice, and deepened my commitment to fix the issues that so many of you have encountered. So, though it will never be enough, thank you for opening my eyes and for sharing your time, your stories, and your struggles with me.

Take the survey.

If you’re a plaintiff in a mass tort case like those involving pelvic and hernia mesh or talcum powder, chances are you’ve signed up with a law firm. Signing up with a law firm means signing a retainer agreement or a “fee agreement,” as they are sometimes called.

Retainer agreements spell out the law firm’s obligations to you and the fees and costs that you will incur as part of having that firm represent you. But signing on the dotted line doesn’t mean that clients actually understand what they're agreeing to—nor does it signal that the agreement itself is reasonable.

Fee agreements aren’t secret or confidential, but they are hard to find. I’ve unearthed a few agreements that are publicly available via court filings. Here are the top 5 eyebrow-raising provisions I found in those retainer agreements--all from the mesh litigation:

1. Contingent fee amount.

Ethical rules in most states require lawyers to charge only “reasonable fees,” and some states, like New York, limit the percentage that attorneys can charge to one-third, or 33.3%. The provision below charges the client a whopping 40% even if the lawyer never files a lawsuit and 45% thereafter.

2. Common-benefit fees.

In mass torts, judges often appoint “lead lawyers.” These attorneys are supposed to work on behalf of not just their own clients, but all of the plaintiffs in the proceeding. To pay them, judges withhold a portion of a plaintiff's settlement proceeds. The withheld percentage can range from 3-15%.

Common-benefit fees should be deducted from the individual plaintiffs’ attorney's contingency fee (the 33.3%)--NOT heaped on TOP of that contingency fee as in the provision below. Plaintiffs whose cases are litigated in a multidistrict proceeding should be no worse off for having the judge appoint lead lawyers. So, a plaintiff who agrees to a 33.3% contingency, still pays 33.3%, it just means that her lawyer must share a portion of that 33.3% with the lead lawyers.

But in the excerpt below, the client had to pay a 45% contingent fee plus Judge Goodwin’s 5% court-ordered fee because of the retainer agreement, resulting in an eye-popping 50% contingent fee. This is fundamentally wrong and cuts against every theory of common-benefit fees that I’ve encountered.

3. Charging Interest on Expenses.

Law firms pay a lot of money to develop a client’s case. They hire pricey experts to prove causation and they front more mundane expenses like civil filing fees and copying costs. But charging clients interest on those expenses like in the clause below is troubling. It means that the longer a case lingers in court (via a protracted MDL, for example), the more a client must pay for costs.

4. Withdrawing from the Attorney-Client Relationship.

States’ ethics rules dictate when a lawyer can “fire” a client, or withdraw from the representation. Model Rule of Professional Conduct 1.16(b) allows a lawyer to withdraw for no reason at all only if doing so will have no material adverse effect on the client’s interest. Clauses like the one below, which allow counsel to withdraw at any time, attempt to circumvent the protections afforded by the ethics rules.

5. Arbitration Provisions.

For years, plaintiffs’ attorneys have lambasted arbitration provisions—and rightly so. Arbitration provisions allow those with the upper hand in contract bargaining to send a dispute to arbitration and some even allow that party to pick the arbitrator (the person who decides the case, in other words). So, imagine my surprise when I found that plaintiffs’ attorneys are taking advantage of arbitration provisions and waiving plaintiffs’ rights to sue them collectively when it suits them.

What can you do?

I’m in the process of creating a database of retainer agreements and writing an article to bring overreaching provisions to judges' attention, but I need your help. Would you send me a copy of your retainer agreement? I will take out your name and all of your identifying information (or you may do so before sending me the contract). I need to see how common these provisions are and I would like to post redacted retainer agreements as a resource for those who are shopping for representation. My email address is: masstortsuga@gmail.com

I am also conducting a study on all multidistrict proceedings in which the defendant targeted or advertised its product or medical device to women. The project asks plaintiffs involved in these cases, which include pelvic mesh and talcum powder, to confidentially share their litigation experiences. If you fall into this category, I’d be grateful if you’d take a few minutes to fill out the survey.

Finally, I have a book coming out this June (Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation) that includes data on all the product liability proceedings pending on the MDL docket as of May of 2013. You can read more about it here; it may be of interest to anyone who is a plaintiff in a mass tort case.

With the opioid proceedings so frequently popping up in the news, there is renewed and new attention being paid to multidistrict litigation by both the general public and scholars in the field. There are tons of great articles out there, but I'd like to highlight Nora Engstrom's important work on Lone Pine orders, as well as my response to her. Later in this post, you'll see some fabulous articles that the University of Georgia Law Review published in a symposium collection. First, Professor Engstrom's paper, The Lessons of Lone Pine, highlights the concerns that she sees with rising use of Lone Pine orders, orders, in other words, that require plaintiffs to provide expert reports testifying to specific causation. I cannot commend it highly enough. I wrote a response to her piece, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, largely to focus her work on trends that I was noticing within federal product liability MDLs. In doing so, I provide a short summary of my recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, as well as some data on the life cycle of mass torts. For those interested in the data, you can click on the timeline of MDL events below for an interactive and downloadable version: Second, last spring the University of Georgia Law Review held a symposium on multidistrict litigation. There is a wonderful collection of essays and articles that may pique scholars' and practitioners' interest. Here's a run down, with links to the articles (all free): Judge Clay D. Land, who presided over the Mentor ObTape MDL, wrote an article entitled Multidistrict Litigation after 50 Years: A Minority Perspective from the Trenches. Margaret S. Williams, a senior researcher at the Federal Judicial Center and my sometimes co-author wrote an eye-opening article for those of interested in empirics and stats on MDL titled The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years. Howard M. Erichson, a professor at Fordham Law School, authored a piece titled MDL and the Allure of Sidestepping Litigation, which turns a critical eye on the beginnings of the Opiate MDL before Judge Dan Polster. Myriam Gilles, a professor at Cardozo Law School, and Gary Friedman, who practices in the field, wrote an article on the use of issue classes in mass torts, titled Rediscovering the Issue Class in Mass Tort MDLs. (I confess to being a longtime fan of issue classes, so if you really want to get into the weeds here, you can read my work here.) Adam S. Zimmerman, a professor at Loyola Law School, authored an article titled Surges and Delays in Mass Adjudication, which compares how federal courts and agencies have handled and experimented with mass adjudication. Andrew D. Bradt, a professor at Berkeley Law School, wrote an article entitled Multidistrict Litigation and Adversarial Legalism, which relates Robert Kagan's famous book, Adversarial Legalism, to MDL. Alexandra D. Lahav, a professor at the University of Connecticut School of Law, authored an article about the many forms of collectivization, from class actions to bankruptcy, entitled The Continuum of Aggregation. Her work reminds us that while we often think about MDL discretely, it is, in fact, one of many forms of aggregation that share common threads and challenges. Happy reading, all!

Since I published Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation last May, I’ve received a lot of private emails from lawyers in the trenches who agree with my diagnosis of the problems in MDL. As the book details, incentives within multidistrict litigation tend to skew toward insiders’ self-interest, not the public interest or plaintiffs’ interests. Left unchecked, self-interest can takeover. And there are no checks. Consequently, there is an urgent need to improve the mass-tort system and its inhabitants as a whole. Of course, in writing the book, I knew there would be backlash, particularly from those ensconced within the system who have much to lose from any change in the status quo. And judging from the latest review of my book on Amazon, it appears I’ve struck a nerve. It comes from Ellen Relkin, a plaintiffs’ lawyer who served as co-lead counsel in DePuy ASR; lead and liaison counsel in Stryker; and on the court-appointed executive committee in Ortho Evra, Yasmin/Yaz, and Biomet. To begin, I’d like to thank Ms. Relkin for taking time to review the book.  I hope very much that it will lead to a dialog and a broader exchange of information, not just between the two of us, but between academics and practitioners more broadly.  As my mentor, Richard Nagareda, impressed upon me, ours is a field that is driven deeply by what judges and lawyers do in real time, on the ground, not by what academics say to one another in lofty towers. It was with that in mind that I began writing what eventually became Mass Tort Deals, which Relkin colorfully dubs a “book parading as empirical research.” It is the culmination of six-years worth of data collection on all the products-liability proceedings pending on the MDL docket as of May 2013, and its Appendix boils down all of that data into 41 pages of tables. All of the documents that I collected are freely available to the public and word searchable here.  Whether you love, hate, or are completely indifferent to the book, you are welcome to make use of all of the data and documents without having to pay Pacer fees. What to make of the data is, of course, open to various interpretations.  Mass Tort Deals reflects my conscious choices both about how to present data in an inviting, accessible way, and which case studies and anecdotes might best convey key points. Those choices are based not only on the raw numbers (which are all disclosed), but on many hours of interviews with attorneys and judges as well as reading hundreds of motions, arguments, and court transcripts. Lawyers and judges who lived those proceedings will, invariably, have different opinions about their strengths and weaknesses, as Relkin’s critique demonstrates. That brings me to Relkin’s specific comments, which I respond to briefly below: “The book is biased.” Unfortunately, I’m not sure what this means. I don’t represent any clients, I don’t consult for lawyers on either side, and my funding comes entirely from my university (no private grants, etc.). I do have a perspective and an opinion from doing extensive research, but I am about as neutral as they come. As Relkin notes, on the other hand, she served as lead counsel in some of the mass tort deals that I criticize and, one presumes, has profited substantially from them. “[T]he book criticizes and makes incorrect assumptions without ever interviewing the lead counsel . . .” As noted, I did speak with a number of plaintiffs’ attorneys on background (including those in DePuy ASR).  Those lawyers asked not to be named for fear of retribution, which I describe in Chapter 3. Lance Cooper was the sole attorney who agreed to be interviewed “on the record.” Unlike the lawyers affected by, but not in control of the proceeding, lead lawyers’ positions tend to be apparent from reading the motions that they file and the arguments they make in a hearing’s transcripts. Despite putting these proceedings under a microscope, however, some critical information just isn’t publicly available, as I note in the book’s Introduction.  The terms of most private settlements remain private, and even for those that are publicly available, it is rare indeed to find information on substantive outcomes—who gets what, in other words. More frustrating still are the many sealed documents. (Reuters has echoed this same frustration in a series of articles on opioids and Propecia.) DePuy ASR was a particularly opaque proceeding in that regard. The leaders, for example, sealed their common-benefit fee and cost awards (motions, orders, etc.).  Why insist on secrecy in court-awarded attorneys’ fees? This is one of the key concerns that I address in Mass Tort Deals: too little disclosure can lead to too much room for abuse of process.  The information that is available suggests that there is a systemic lack of checks and balances in MDLs that may benefit insiders like lead plaintiffs’ attorneys, at their clients’ expense. In short, proceedings should be more transparent—deciding issues in secret breeds mistrust. To that end, if you have data on substantive outcomes (who, exactly, gets what), please share it with me. I would love to know more about how much money is paid out and to whom, how long it takes to administer claims, whether like plaintiffs are treated equally, how much money it costs to put dollars in class members’ hands versus plaintiffs in private settlements, etc. “The book overlooks litigation challenges in some of the cases including the enormous costs of trying complex pharmaceutical and medical device cases, especially those with mild to moderate injuries, general and specific medical causation challenges, preemption issues, learned intermediary challenges, among other difficulties in some cases.” Relkin is correct in that this book is about the procedures used to resolve cases, not substantive tort law. But to the heart of her concern, I discuss costs on pages 24-25, general and specific causation on pp. 112, 116, and 210. And I emphasize the pros and cons of bellwether trials on pp. 107-110. “Ms. Burch incorrectly attributes lead counsel in the DePuy ASR settlement, incorrectly interprets and describes features of the settlement, overlooks an enormous and virtually unprecedented benefits of the settlement . . ., incorrectly claims that the Extraordinary Injury Fund awards were unknown when in fact the scheduled award amounts were listed in an appendix to the settlement agreements that have been and are still on-line, among other errors.” The only concrete thing I can find to respond to here is Relkin’s claim about the Extraordinary Injury Fund.  As I observed on p. 140, the DePuy ASR settlements did estimate a claimant’s base award, but even after another search of the settlement’s website, I still don’t see any amounts actually paid out to clients listed anywhere.  Of course, it’s certainly possible that I’ve missed something.  So, here’s a link to the website if you’d like to dig in. “The two unhappy clients she quotes from a New York Times article are certainly not a representative sample. Using that standard, one could go on ‘Rate My Professor’, and while finding many good reviews of Professor Burch, would find some students who gave her unfavorable ratings.” Okay, I couldn’t resist. It appears the last posting I received on “Rate My Professors” was in 2011 and of the 8 total posts, I received 7 “Awesome’s” and 1 “Good” (which still wrote “Great prof”). (Personally, I’m partial to the one that said “Amazing teacher. Funny, pretty, witty, and just downright brilliant,” but hey, maybe I am biased.) More to the point, writing the book did make me realize that I needed to hear directly from plaintiffs, hence the Procedural Justice Study that I began over a year ago. Relkin kindly mentions that “she would have been happy to share the many thank you notes from enormously grateful clients who fared very well,” so I hope that she and other plaintiffs’ lawyers will ask their Yasmin/Yaz and Ortho Evra clients to participate in the Procedural Justice Study as well as any clients they might have in the other covered women’s health proceedings: Pelvic Mesh, Talcum Powder, Mentor ObTape, Mirena, Norplant, Fen-Phen, Dalkon Shield, NuvaRing, Silicone Gel Breast Implants, Power Morcellator, Ephedra, Fosamax, Monat Hair Care, Rio Hair Naturalizer, Prempro, and Protegen Sling. Please disseminate the survey link broadly to your clients; I absolutely want to hear from all of them.  By way of background, the study does not ask for any confidential information (settlement or otherwise); the basic info it seeks include things that plaintiffs can readily find in their complaint.  The study’s focus is on how plaintiffs feel about their experience with the justice system—the judges, the lawyers, etc. My aim in this is to update and expand upon RAND’s 1989 Perception of Justice survey by identifying what litigants care about in the MDL context.  I hope to hear from as many plaintiffs as possible (their names and any identifying information will be kept completely confidential). Happy to hear from each of you, too. And if there are things I should know more about, consider this an open invitation to contact me.

For plaintiffs, judges, lawyers, and even academics toiling away in the world of mass torts, getting a handle on the big picture can be tough.  I've seen many empirical claims made when it comes to the push for or against creating federal rules specific to mega-MDLs, all of which are mass torts.  Yet, most lack real, empirical data. For the past six years, I've been collecting data on all of the products-liability proceedings that were pending on the MDL docket as of May 2013. (Yes, yes, I live a thrilling life.) Like a hoarder, I've squirreled away data on Lone Pine orders, Daubert motions, class-certification motions, plaintiff fact sheets, summary judgment motions, census orders, class action settlements, private aggregate settlements, and on and on and on. Those data-collection efforts have culminated in a book that is out today, Mass Tort Deals.  There is ton of information in the book's appendix on all of the information I just mentioned. Here's a way to Download Index to Data. One thing I noticed along the way was that neither Pacer nor Bloomberg Law allow you to search inside the text of MDL dockets, which can be long and unwieldy in and of themselves, as many of you know.  So, with the help of the wonderful UGA Law School IT department, I've created a free website that allows you to search the text of the thousands of MDL documents that I've been stockpiling for the past six years.  It includes all of the documents that I relied on for the book and I will continue to update it periodically. The Book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation: As for the book, Mass Tort Deals marshals this wide array of empirical data to suggest that the systematic lack of checks and balances in our courts may benefit everyone but the plaintiffs. Multidistrict proceedings, which place a single judge in charge of similar lawsuits filed across the country, consume a substantial portion of the federal courts’ civil caseload.  As the figure below shows, many MDLs are product liability proceedings (for an interactive version, click here): And if you consider not just the number of proceedings, but the number of actions pending in those proceedings, products-liability suits dominate (for an interactive version, click here): Of course, most of these product-liability proceedings are not run-of-the-mill disputes. Litigation over products like pelvic and hernia mesh, opioids, Johnson & Johnson’s baby powder, Roundup, and hip implants are headline-grabbing media magnets. Federal judges certify a small handful of these proceedings (principally those without personal injuries)  as class actions, which affords them judicial safeguards. But as tort reform has made its way into civil procedure, it has effectively clamped down on class actions.  As you can see from the graphic below, most product-liability proceedings within my dataset ended in private, aggregate settlement (click here for an interactive version): As readers of my work know, I've voiced some concerns with adequate representation and repeat players in MDLs. Judges and academics have long raised questions about arms-length bargaining and adequate representation in the class-action context, even though Rule 23 builds in some safeguards. In class actions, for example, judges have the authority to appoint class counsel; consider whether counsel adequately represents class members; ensure that any class settlement is fair, reasonable, and adequate; and award class counsel’s attorney’s fee. But worries about collusion, self-interest, and overreaching don’t disappear just because mass litigation can’t be certified as a class action. Instead, we might worry more because the judge lacks any clear-cut authority to police the proceedings in the same way. Those concerns can be exacerbated if repeat players exist leadership positions, which they do. The graph below shows who those players are and you can click here for an interactive version: Some judges appoint more lead lawyers than others, as the graphic below illustrates (click here for an interactive version): That repeat players exist isn’t surprising in and of itself. Attorneys specialize all the time. It might be that they use their expertise to generate better outcomes for their clients. But playing the long game may also mean that repeat players develop working relationships with their opponents such that each side can use private settlement to bargain for what matters to them most from a self-interested standpoint. For corporate defendants and their lawyers, this means ending the litigation with the least cost. For lead plaintiffs’ lawyers, this typically means attorneys’ fees—specifically common-benefit fees (the fees they receive for the work they do on behalf of the group as a whole).  As Chapter 3 of Mass Tort Deals details, repeat-player attorneys are prevalent in leadership positions on both the plaintiff and defense side in products-liability multidistrict proceedings.  Here's a look at the major law firms involved in these proceedings on both sides (interactive version): To the extent possible given that most of the mass-tort settlements were private, Chapter 2 examines the deals that these repeat players negotiated with one another. After confirming that one of the top five most connected repeat players participated directly in each settled proceeding’s leadership, I identify the provisions within those settlements that are arguably more beneficial to plaintiffs’ lead lawyers or to the defendants than to the actual plaintiffs. How do these provisions work? To stymie the lawsuits against them, for example, defense corporations include settlement provisions designed to push as many plaintiffs as possible into the settlement program. These "closure" clauses might require plaintiffs’ lawyers to recommend that all their clients accept the settlement offer and, if the client refuses, take steps to withdraw from representing that client. To enter a settlement program, plaintiffs must typically dismiss their lawsuit. But, as I explain in Chapter 5, those plaintiffs often don’t know what, if anything, they will receive under that program. So, plaintiffs may be giving up their lawsuit in exchange for no compensation whatsoever. For example, in litigation over the acid-reflux medicine Propulsid, out of the 6,012 claimants who entered into the settlement program, only 37 received any money. The rest received nothing, but had already dismissed their lawsuit as a condition of entering into the program. Those 37 plaintiffs collectively received little more than $6.5 million. The lead plaintiffs’ lawyers in Propulsid, however, negotiated their common-benefit fees directly with the defendant, Johnson & Johnson, and received $27 million. Much of the remaining funds then reverted back to Johnson & Johnson. Lead plaintiffs’ lawyers in Propulsid announced that they were creating a template for all future deals. Chapter 2 of Mass Tort Deals shows that they did exactly that. Considering settlements that occurred over a 14-year span, Chapter 2 shows that every deal contained at least one closure provision for defendants. Nearly all settlements also contained some provision that increased lead plaintiffs’ lawyers common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a troubling departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcomes. In short, Mass Tort Deals raises the concern that as repeat players influence practices and norms in mass torts, they may undermine plaintiffs’ ability to freely consent to the settlement. That may or may not affect the substantive outcome. Unfortunately, most of the data on how plaintiffs fared under settlement programs was not publicly available. Rules for MDLs? Given my qualms about what lawyers are doing (Chapter 2 and 3) and what judges are doing (Chapter 4), should we implement rules for MDL proceedings? Not necessarily. Our system needs a makeover, yes.  But Chapter 6 uses basic economic and social principles as the bedrock of reform. I suggest ways in which we can build opportunities for dissent and competition into the fabric of multidistrict proceedings and incentivize lawyers to use them. But doing so relies on judges. Educating judges and encouraging them to select leaders via a competitive process, tie leaders’ fees to the benefits they confer on plaintiffs, open the courthouse doors to hear about those benefits (or not) directly from the plaintiffs, and remand those litigants who don’t want to settle can allow the vibrant rivalries within the plaintiffs’ bar to see to it that dissent and competition flourish. As attorneys object and compete, they are likely to divulge new information, thereby equipping judges with pieces of the puzzle that they currently lack. In short, Chapter 6 explains how arming judges with procedures that better align plaintiffs’ attorneys’ self-interest with their clients’ best interest equips courts to hold parties accountable even without legislation or rulemaking. From diagnosis to reforms, my goal in Mass Tort Deals isn’t to eliminate these lawsuits; it’s to save them.