Book Review: Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

The Professor’s “Datasets”

Before we go further into the substance of her grievances, I must note that the unquestionable strength of Professor Burch’s book is its foundation on prodigious data gathering on MDLs, done with the assistance, I am sure, of many law school interns, given that the data sources were so diffuse. She has compiled data from pretrial orders, MDL opinions, and other filings to get the details needed. The data collection runs some 40 pages in a series of appendices.

She has studied some 73 MDLs intensively. The type of information extracted per MDL includes requirement of expert reports, Lone Pine use, whether plaintiff fact sheets were required, confidentiality of settlements, use of special masters, and appeals processes.

The 73 MDLs she examined run mainly from 2009 (e.g., Yaz, MDL No. 2100) to 2013 (e.g., Plavix, MDL No. 2418), but she also examined some earlier ones for which there was much outcome data, like Propulsid, Prempro, and Vioxx, not to mention asbestos. The study’s 2013 cutoff was dictated to allow enough time for the resolution of the MDL, which of course lags by some number of years from its creation.

Most unusually, but in keeping with her spirit as a sharing person, Professor Burch has posted all of her “dataset” (as she calls it) online and is in fact updating it periodically. (But you still need to buy the book, for the text.)

Many of the sources of information she uses to form her arguments are newspaper articles written over the years that are journalistic exposés of problems with mass tort resolutions. Often these articles give voice to individual claimants who feel that they have had no say in the outcome. While these articles are titillating, they are anecdotal only—the antithesis of the otherwise data-driven bases for her writing.

On the other hand, Professor Burch makes novel use of other types of non-legal materials, namely behavioral and social science methods of analysis. She uses the thinking and analysis methods developed by scientists to examine the legal issues raised—for example, how social networking develops.

Although her book might have its primary audience in the academic world, it is written in a way that makes it of great interest to the bar, on both the plaintiff and defendant’s sides, and to the judges who are dealing with these issues in multidistrict litigation. She also aims to speak as well to policy makers, including legislators who are always seeking “reforms” in any tort system.

So, while readers here bring their own perspectives, if not their own prejudices, to the issues examined—ranging from immense praise for the efficient management of large numbers of people suing for injuries from the same drug or device, to dislike for the way the system works—each reader must deal with the factual data she presents in the tables and summarizes in the text.

Major Criticisms of the System

These are chief targets of Professor Burch’s treatise:

• private settlements, which exclude the former presiding MDL judge from having oversight of the settlement and the payout—to be contrasted with the supervision that a judge in a Rule 23 class action of necessity gives;
• settlements forced on claimants with no adequate explanation of how the sum they are being given has been arrived at and then presented with no seemingly viable options but to take the money;
• claimants being forced to sign releases before they know how much they will receive in settlement of their claim (that is happening as we speak in the Xarelto cases);
• plaintiff lawyers forced to induce all of their clients to participate in the mass settlement and to agree to “discharge” any clients who don’t agree to the terms, as well as other bothersome ethical issues we often want to ignore;
• the role of “repeat players” on the plaintiff steering committees (PSCs), who have become too comfortable with the court and defense counsel, and are motivated more by a desire to make a fee and get paid their common benefits than by a concern for their clients; and
• PSC leaders also becoming case lenders.

In discussing almost all of these grievances, which are given separate chapters in her work, Professor Burch presents factual vignettes of disgruntled plaintiffs. These little stories, however, are more journalistic in nature than of value in decision making, as noted. For example, she notes that a Nuvaring victim laments being forced to take a small settlement for relatively large injuries, but she omits that there was virtually no liability and the New Jersey judge had granted summary judgment in all of the bellwether cases.

The Professor’s Suggestions for Reform

To her credit, Professor Burch uses her many pages of documenting the faults she finds with the current system as a springboard for making major, serious suggestions for improvement, in concluding chapter 6. The balance of this book review lists the suggestions and comments on their merits.

1. Improving the plaintiff steering committees. She calls on judges and lawyers to avoid placing the same “grizzled” (page 180) lawyers on the PSCs over and over again, and instead to allow for more debate and diversity, including what she defines as “cognitive diversity.”
   1. What Professor Burch only grudgingly recognizes in various places in her book is that these “repeat players” are ones willing to take the risks of investing large sums of money, and time, into contingent litigation. MDL judges appreciate their leadership ability gained through experience in many prior suits (including, in the past, this grizzled lawyer).
2. Tying common-benefit fees to the outcome. Here Professor Burch dips into heavy-duty math to determine what might be a fair common-benefit fee, based on quantum meruit principles.
   1. While the author does have pretty telling examples of common-benefit amounts being arrived at primarily based on the demand of the PSC, with the supervising judge just signing off on them without a detailed hearing, there are many other examples among recent MDL settlements where the court took pains to make sure that common fees are based on reasonable hourly rates and actual time spent. Further, a poor outcome for plaintiffs does not necessarily imply that the plaintiff lawyers did a poor litigation job. 
3. “Empowering the Masses.” Here Professor Burch makes extended arguments that the claimants (mostly women in her examples) need to have their own voices heard. They should not just be statistics in a battle for money. Claimants should form their own support groups and they should be heard at settlement hearings.
   1. I think almost everyone would agree to these proposals, and at the minimum nothing in the system should stymie their role. But most of the claimants have no active interest in the litigation and will wait passively for whatever the outcome. 
4. Increasing the remand of cases from the MDL. The reasons Professor Burch suggests for an increase in remand are to diminish the power of the global settlement, to give opt-outs a place to turn, and to localize cases to places where the injured claimant resides.
   1. This proposal reflects dreamy thinking, I feel. Remand as a threat or actuality where the parties cannot work out a settlement makes sense, but once settlement has been reached, MDL judges are most unlikely to send handfuls of plaintiffs back to district courts all over the country because those plaintiffs do not understand the settlement. Retransfer alone does not per se increase the voice of the injured person, and letting each plaintiff sink or swim on his or her own may well tend to diminish settlement values. 
5. Greater supervision of “private” MDL settlements. This important topic is not included as a major subdivision in the professor’s chapter on reforming mass tort litigation, but it is the subject of several chapters in her book, well documented with many examples of settlements forced on claimants and their individual lawyers, where the supervising judge had been shunted out of a final supervision role by the “private” agreement.
   1. On this point, I say “amen.” These clients and their individual lawyers need a place to lodge complaints about being forced into settlements, where they must round up all their clients and they must sign releases before they know what they will receive.

On this point, I say “amen.” These clients and their individual lawyers need a place to lodge complaints about being forced into settlements, where they must round up all their clients and they must sign releases before they know what they will receive.

Conclusion

I hope that in this review I have portrayed enough of the serious and informative content in Mass Tort Deals so that the reader will go out and buy a copy. And thanks to Elizabeth Chamblee Burch for developing such a strong data-driven basis for her analyses and sharing it with us, whether we agree with her conclusions or not. 

Paul Rheingold is senior counsel at Rheingold, Giuffra, Ruffo & Plotkin LLP in New York City, New York.

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