Related posts

• Snow globe menace averted (2)
• October 12 roundup (2)
• November 26 roundup (2)
• January 31 roundup (2)
• Imams: we want to “hit [US Airways] where it hurts, the pocketbook” (6)

Related posts

• Vioxx: Mark Lanier’s smears of the Ernst v. Merck judges (2)
• Vioxx settlement: Judge Fallon caps fees at 32% (3)
• Vioxx settlement: February 8 update (32)
• Vioxx roundup, January 15-17 (1)
• Vioxx lawsuit advertising (0)

Related posts

• Vioxx: Mark Lanier’s smears of the Ernst v. Merck judges (2)
• U.S. Silica in the blogosphere (1)
• New at Point of Law (0)
• Ernst v. Merck Vioxx trial to begin in Texas (2)
• Breaking: Merck wins two more Vioxx cases on appeal (7)

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?

Related posts

• CCAF amicus brief in fen-phen fees case (0)
• Wilkes & McHugh sued over alleged Tenn. fee grab (0)
• Walks like a contingency, quacks like a contingency (30)
• Vioxx: Mark Lanier’s smears of the Ernst v. Merck judges (2)
• Update: second cardiologist sued over alleged fen-phen fraud (0)

Related posts

• August 28 roundup (4)
• Why I wouldn’t vote for Andrew Cuomo (7)
• Who’s linking to us this week? (0)
• White Coat’s lawsuit story, cont’d (0)
• Where eagles fear to litigate (0)

Related posts

• Suing critics, competitors not a winning business strategy (0)
• September 2000 archives, part 1 (0)
• Second Circuit tosses Whitman case (1)
• Scarborough unfair (1)
• Princess-Di-as-trademark case (0)

Related posts

• Vioxx settlement: February 8 update (32)
• Latest issue of Class Action Watch (2)
• Breaking: Merck wins two more Vioxx cases on appeal (7)
• Vioxx: Mark Lanier’s smears of the Ernst v. Merck judges (2)
• Vioxx roundup, January 15-17 (1)

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.

Related posts

• Breaking: Merck wins two more Vioxx cases on appeal (7)
• Ernst v. Merck Vioxx trial to begin in Texas (2)
• A celebrated $32 million Vioxx case… (3)
• Vioxx settlement: Judge Fallon caps fees at 32% (3)
• Vioxx settlement: February 8 update (32)

Ernst was the first Vioxx suit to go to trial. A jury awarded $253 million. Mark Lanier waited months before asking for a final judgment; at the time, I suggested that this was because he knew the case would be reversed on appeal, and did not want the bad publicity. Indeed, the appellate decision perhaps comes too late for Merck: the number of lawsuits increased from 6000 to 60000 in the months following publicity over the jury verdict, costing Merck billions of dollars in the later extortionate settlement.

With these two decisions, only three plaintiffs’ verdicts in favor of Merck remain.

Update: I still haven’t seen the McDarby decision, but an updated AP story indicates that it upheld the compensatory damages of $4.5 million, overturned the $9 million punitive damages verdict, and overturned the consumer-fraud judgment (which also saves Merck millions of dollars in plaintiffs’ attorneys’ fees).

Related posts

• Vioxx: Mark Lanier’s smears of the Ernst v. Merck judges (2)
• Vioxx settlement: February 8 update (32)
• Did Mark Lanier comment about Vioxx on a medical blog? (23)
• Ernst v. Merck Vioxx trial to begin in Texas (2)
• Vioxx roundup, January 15-17 (1)

Related posts

• September 2000 archives, part 3 (0)
• October 3 roundup (0)
• October 1999 archives, part 1 (0)
• New at Point of Law (0)
• January 2000 archives, part 1 (0)