Alarm: H.R. 985 is an Attempt to Undermine Multidistrict Litigation

Howard M. Erichson, Professor of Law, Fordham University
Howard M. Erichson, Professor of Law, Fordham University

Several law professors, including Fordham Law Professor Howard Erichson, are ringing alarm bells about a new bill that just passed the House Judiciary Committee that “is a crass attempt to undermine any effort by plaintiffs to seek justice in mass disputes.”

The bill, H.R. 985, the “Fairness in Class Action Litigation Act of 2017,” seeks to reduce defendants’ exposure to liability for mass harms by:

  • Tightening the standard for class certification
  • Imposing an ascertainably requirement
  • Delaying the payment of class counsel fees
  • Limiting the use of issue class actions
  • Expanding diversity jurisdiction
  • Mandating Lone Pine orders in MDL
  • Banning trials in an MDL
  • Capping MDL personal injury attorneys’ fees at 20%

As Beth Burch noted, the bill does not make things fairer for those who have been wronged.

“The abuses in class actions and non-class mass litigation happen mostly in settlement, not litigation and adjudication,” Erichson says. “But that is not what this bill would address. Instead, its provisions are aimed mostly at protecting defendants from the kinds of class actions and mass litigation that actually empower consumers, employees, citizens, and others to fight corporate and government wrongdoing.

“Even where the bill aims at real problems, it goes too far, failing to match its solution to the problem of magnet jurisdiction in nationwide mass disputes,” he says. “In my letter to Congressional leaders, I attempt to explain which of the provisions of H.R. 985 are especially problematic, and why.”

Click to download Erichson’s HR985 letter

Following is a round-up of the commentary thus far according to the Mass Tort Litigation Blog.

John Coffee (Columbia):   Download Coffee – How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog

Myriam Gilles (Cardozo):  Download Gilles Letter to James Park on HR 985

Elizabeth Chamblee Burch (Georgia):  Download Burch Final Comments on Fairness in Class Action Litigation Act

For those of you who like up to the minute commentary, several academics and reporters keep very active twitter accounts that track the bill: @adam_zimmerman, @elizabethcburch, @HowardErichson@PerryECooper

Read More

Caseload Growing in Philadelphia Against Rex and Argon in IVC Filter Litigation

Option Elite IVC Filter Litigation Rex Medical L.P., the designer of the Option and Option Elite IVC Filters as well as the distributor of these products, Argon Medical, face a growing number of lawsuits related to injuries that plaintiffs’ complaints allege were caused by these devices. (See a detailed list of complaints and attorneys below.)

We believe the majority, if not all, claims against Rex and Argon have been filed in the Philadelphia Court of Common Pleas. Plaintiffs claim that jurisdiction is proper in the Philadelphia Court of Common Pleas under Pennsylvania Law partially due to the Pennsylvania citizenship of Rex Medical.

Although attorneys practicing in the IVC Filter litigation are well aware of the Bard  IVC Filter Litigation and Cook IVC Filter Federal Multidistrict Litigation, far less has been published about the Rex and Argon Medical IVC Filter Litigation underway in Philadelphia.

Pennsylvania allows for consolidation of common claims brought by plaintiffs against the same defendant. Although these consolidations are not Federal MDLs, they function much in the same manner.

Claims may be brought by plaintiffs against defendants in these consolidated litigations without regard to the plaintiff’s citizenship, so long as the plaintiff’s citizenship is within the United States.

Numerous medical device and pharmaceutical consolidated litigations have been heard in the Philadelphia Court of Common Pleas including the Risperdal Product Liability Litigation as well as a consolidated Xarelto Product Liability Litigation which is currently on going, while a Federal MDL also exists related to the same basic issues.

Currently, Judge Arnold New has designated the cases against Rex/Argon to the “Complex Litigation” track. Although the cases have yet to be consolidated for adjudication in the MDL-like process, we expect this to occur as more cases are filed in the Pa. Court of Common Pleas.

Judge New oversees all consolidated litigation in the Court of Common Pleas.

 

Plaintiffs Cases Filed Against Rex Medical and Argon Medical

Philadelphia Court of Common Pleas

Click on the Case Description to Access all documents including complaints for individual plaintiff cases:

Case Description

Date Filed

Case ID

Plaintiff Residence

Filter

Injury

DURBIN VS REX MEDICAL  17-Oct-16 161002290 California Option Efficacy

Injury

STOKAN VS REX MEDICAL  10-Oct-16 161001150 Arizona Option

Elite

Occlusion

Penetration

DUGAS VS REX MEDICAL 9-Sep-16 160900897 Texas Option Fracture

Migration

HARRIS VS REX MEDICAL 14-Jun-16 160601343 Georgia Option Injury

Other

MILLER VS REX MEDICAL 14-Jun-16 160601344 Louisiana Option Injury

Other

CASEMAN VS REX MEDICAL 7-Mar-16 160300207 Ohio Option Irretrievable

Injury

MONPLAISIR VS REX MEDICAL  3-Oct-16 161000070 Florida Option Injury

Death

AMOUR-WEST VS REX MEDICAL 13-Oct-16 161001566 Tennessee Option Injury

Other

STRODE VS REX MEDICAL  6-Sep-16 160900127 Tennesse Option Injury

Death

TURNER VS REX MEDICAL 5-Aug-16 160800773 Mississippi Option Fracture

Migration

THOMAS VS REX MEDICAL 8-Apr-16 160400816 Colorado Option

Elite

Irretrievable

Embedded

 Attorneys Filing Cases Against Rex Medical and Argon Medical

Philadelphia Court of Common Pleas

 

EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C.

 

Stewart J. Eisenberg
Spruce Street Philadelphia, PA 19103
stewart@erlegal.com
215.546.6636

Villari Brandes & Giannone P.C.
Peter M Villari
Nicole T. Matteo
8 Tower Bridge
Suite 400
161 Washington Street
Conshohocken, PA 19428
(610) 832-8050
SEEGER WEISS LLP

Terri Anne Benedetto
1515 MARKET STREET, SUITE 1380
PHILADELPHIA PA 19102
tbenedetto@seegerweiss.com
(215)564-2300

NASTLAW LLC
1101 MARKET STREET
SUITE 2801
PHILADELPHIA PA 19107
(215)923-9300
 CURTIS LAW GROUP
William B. Curtis
12225 Greenville Ave
Suite 750 Dallas, TX 75243
bcurtis@curtis-lawgroup.com
214.890.1000
LAW OFFICES OF BEN C. MARTIN  
Ben C. Martin
3710 Rawlins Street, Suite 1230
Dallas, Texas 75219
bmartin@bencmartin.com
214.761.6614
FREESE AND GOSS, PLLC

 

Tim K. Goss
2905 Sackett St.
Houston, Texas 77098
tim@freeseandgoss.com
713.522.5250

MATTHEWS & ASSOCIATES
David P. Matthews
Lizy Santiago
3031 Allen Street, Suite 200
dmatthews@thematthewslawfirm.com
lsantiago@thematthewslawfirm.com
214.761.6610
Lopez McHugh, LLP

 

James J. McHugh, Jr
Carrie R. Capouellez
214 Flynn Avenue Moorestown
NJ 08057
ccapouellez@lopezmchugh.com
(856) 273-8500

Wagstaff & Cartmell, LLP

 

Thomas P. Cartmell
David C. DeGreeff
4740 Grand Ave.
Suite 300
Kansas City, MO 64112
(816) 701-1100

Read More