[cross-posted at Cato at Liberty]

Medical roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Torts roundup is a post from Overlawyered - Chronicling the high cost of our legal system

November 22 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“Win or lose, trial lawyers get millions in Vioxx fees” is a post from Overlawyered - Chronicling the high cost of our legal system

A celebrated $32 million Vioxx case… is a post from Overlawyered - Chronicling the high cost of our legal system

Let’s set aside for the moment the substantive argument that Lester Brickman would make whether the median attorney is being overcompensated even under this limitation. (Perhaps four fifths of the claims involve the attorneys doing nothing but administrative scrivening, and a Judge Lester Brickman sitting on the bench would have some colorable basis under most states’ laws to be slicing and dicing in response to any client complaints against those attorneys.)

But it’s not clear to me that Judge Fallon has any authority to do anything about the attorney-client relationship without a particular client complaining in front of him. Imagine the case of a Florida attorney with a Florida client who sued in Florida state court after signing an agreement explicitly waiving fee caps but agreed to the global settlement. That Florida attorney about to dismiss his case in Florida state court certainly has no reason to expect New Jersey law to be applied to his case by a federal judge–and Fallon didn’t even apply New Jersey law, but some abstract Fallonesque federal common law that he pulled out of thin air.

Fallon’s only claim of authority is his ability to modify the settlement to ensure that it is enforceable — but the settlement is between Merck and the attorneys, and the whether the attorney fulfilled fiduciary duties to the client can’t make the settlement unenforceable. The provisions of the settlement giving the Settlement Administrator (in this case, Fallon) authority to set common-benefit fees certainly don’t apply to the individual fee agreements. And even if Fallon did somehow have judicial authority to declare a case was a “quasi-class-action” (a hybrid anticipated by no statute or rule of federal procedure), there’s no indication that Fallon made the requisite findings that all plaintiffs are similarly situated with respect to all attorneys justifying a global cap. The 32% figure is going to undercompensate some attorneys, even as it overcompensates others. A legislature can make that kind of procrustean mistake ex ante, but a court is required to give individualized consideration ex post. (Even the questionable Zyprexa and Guidant opinions Fallon relies upon authorized upward departures.)

Too, in the long run, if agreeing to a global settlement gives a court authority to meddle with the attorney-client fee agreement when it doesn’t even have jurisdiction over the individual case, it’s a huge disincentive for plaintiffs’ attorneys to settle cases. Fallon said 32%, but nothing in his opinion stops a different judge from saying 16% given the same facts–Guidant said 20%, and it’s hard for me to see why the Vioxx economies of scale were different than Guidant‘s.

Dropping the substantive ethical argument for reducing fees in at least the cases where the attorneys’ work was perfunctory (an argument I agree with, though others might not), is Fallon’s ruling procedurally defensible? I don’t see how, and I’m not one to cut plaintiffs’ attorneys breaks, especially in litigation that I’ve elsewhere argued has produced a nuisance settlement. What am I missing that this seems ultra vires to me?

Vioxx settlement: Judge Fallon caps fees at 32% is a post from Overlawyered - Chronicling the high cost of our legal system

New Steve Chapman blog is a post from Overlawyered - Chronicling the high cost of our legal system

June 7 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Breaking: New Jersey Supreme Court rejects Vioxx medical monitoring class action is a post from Overlawyered - Chronicling the high cost of our legal system

Here’s what the appellate court said yesterday:

An expert’s bare opinion will not suffice to support a jury’s verdict. Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). … Causation opinions based on possibility, speculation, and surmise are no evidence. Havner, 953 S.W.2d at 711-12. Expert opinions must be supported by facts in evidence, not conjecture. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003).

… Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we find no evidence that Ernst suffered a thrombotic cardiovascular event, i.e., a myocardial infarction triggered by a blood clot.

Here’s what I wrote for Point of Law in 2005:

Texas effectively adopted a Daubert-like standard in Merrell Dow v. Havner. Havner presented the same fact-pattern as Ernst: an expert testifying based purely on speculation and conjecture that a drug was responsible for causation. The Texas Supreme Court noted “Reasonable probability cannot be created by the mere utterance of magic words by someone designated as an expert.” A reasonable appellate court is going to strike the expert testimony, and reverse the case for retrial, and might even grant judgment for the defendants. … It might have to get to the Texas Supreme Court before a reversal happens, but I think it will.

I said it again in an AEI event in September 2005, in a working paper in December 2005, and repeated this thought in January on C-SPAN:

Now if we are holding this discussion in the Greek agora, Cephalus raises his hand and says, “But, Socrates, isn’t there a Daubert opinion out there that says experts are not allowed to have this sort of testimony out there?” And I would say, “You know something? You are absolutely correct. They are not.” And the Fifth Circuit said that; the Supreme Court said that; the Texas Supreme Court has said that. And where the plaintiffs have won in the federal court and in the Texas courts, those cases are going to be reversed. I cannot promise you that with 100 percent certainty, but I’m very confident that you are going to see reversals there.

The real judicial outrage was the trial court’s failure to throw out the case in the absence of qualified expert evidence. Mark Lanier’s statements alleging that the decision is a result of campaign contributions are arguably a violation of Texas Disciplinary Rule of Professional Conduct 8.02.

Lanier had to have an inkling this result was coming given (1) that he settled the Vioxx litigation for pennies on the dollar; (2) that he stalled for several months before asking for a final judgment, though such a maneuver would have cost his client hundreds of thousands of dollars if she were ultimately successful; and (3) the fact that Garza v. Merck was tossed on the same grounds just a few weeks ago.

Vioxx plaintiffs’ expert evidence simply doesn’t meet Texas or federal standards of law. Indeed, that’s why so many cases were brought in New Jersey state court, where expert evidence standards permit for-hire experts to give ipse dixit reports to the jury, regardless of scientific basis; the risk that punitive damages under New Jersey state law would be preempted by Buckman (as has now happened) was outweighed by the need to get in junk science evidence to have a chance of winning a case.

Vioxx: Mark Lanier’s smears of the Ernst v. Merck judges is a post from Overlawyered - Chronicling the high cost of our legal system