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What Happened To Class

You could hear the rumbling and thefaint hiss of steam even before Sept. 30, 2004?? 1/2 the day Merck announced it was pulling its painkiller Vioxx off the market for potential side effects. Now the sound of meshing gears and stoking furnaces is inescapable: The litigation locomotive is fueling up, taking

on passengers and preparing to set those steel rails humming.

Ad hoc judicial solutions flooded into that vacuum. In 2002, the court aggregated the asbestos-exposure claims of 8,000 plaintiffs against more than 250 defendants. The courts deemed those cases were aggregated for all purposes, through trial to judgment. The plaintiffs were widely dispersed; about 5,000 of them didn't live or work in the state. And the 250 defendants were denied such pretrial rights as discovery on any of the 8,000 plaintiffs.

Problems like this aren't exclusive to West Virginia. Federal rules have long allowed for joinder of actions if the alleged injury arises out of the same transaction and for consolidation where cases share a common question of law or fact. Most states have adopted rules similar to the federal ones. But those state rules are subject to judicial interpretation, and in counties that have a reputation for being plaintiff-friendly, they can sometimes stretch to cover actions involving thousands of plaintiffs and multiple defendants, as they were in West Virginia.

Showing enough common causation to justify a class action can be even more difficult when the product in question is a pharmaceutical. For one thing, it's likely that many people have taken a given drug and not been harmed by it or have derived benefits from it. For another, it's very difficult to draw a causal link between a drug and an adverse effect on very sick users, whose health may be threatened by other health issues. This problem will affect many Vioxx plaintiffs: Many users who suffered heart attacks were in poor enough health that they might have suffered the same attacks without ever using the drug.

In the face of these difficulties, plaintiffs' lawyers may decide to forego class actions and simply aim for the looser commonality standards applied to consolidated individual lawsuits. The barriers are lower, and the amount of leverage to compel a settlement can be almost as great.

Another problem for defendants is that these mass actions sometimes combine cases that involve serious personal injury with others where the injury is merely a fear of future harm--from a drug, for example, or an automotive product. Anecdotal evidence suggests that in many of these mass actions, plaintiffs' lawyers are unwilling to come to a settlement with defendants on the most serious injury cases unless defendants also settle the cases with lesser merit--cases that they would likely lose if brought individually.

Many defense lawyers argue that combining plaintiffs who have different injuries and different levels of exposure to a product also tends to confuse and perhaps prejudice a jury.

Mississippi, one of two states that don't permit class actions (Virginia is the other), developed a reputation as a plaintiff-bundling paradise in the late 1990s.

According to a study by the conservative Manhattan Institute for Policy Research, the number of mass actions in Jefferson County, Miss., grew from 17 in 1999 to 73 in 2000. Of 108 mass actions filed in the country court from 1999 through 2001, only 539 of the 3,011 plaintiffs identified with addresses were from Jefferson County.

"I think judges are starting to express their frustration at seeing their venue named as the venue of choice for plaintiffs' lawyers," Maskin says. For a while, courts were proud of these grand experiments in case management, he says, and of their ability to clear dockets that would have taken much more time to handle separately. But Maskin sees a looming backlash against bizarre legal consolidations.

"More creative use of class action, working off the various statutes that lessen the requirement for strict causation, reliance and such--that's the trend, not these attempts to just cram cases in all at once," he says. "Coerced consolidation is ultimately not the way to go."

staff Writer

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