Is My Drywall Chinese? - HB Litigation Conferences

that there is a much smaller chance that they may make some inconsistent statement
due to memory lapse or other inadvertence.
A Note On Costs Many plaintiffs’ counsel may believe that defendants are
unconcerned about litigation costs and, in fact, use high litigation costs against plaintiffs.
This certainly was a tactic employed by some corporate defendants in the past but times
have changed. Even prior to the current recession, corporate defendants were
increasingly conscious of defense costs demanding reduced rates and limiting defense
efforts. The current economic situation has exacerbated this trend. On the plaintiffs’
side, the willingness of successful plaintiffs’ law firms to invest resources in cases and
their ability to share information electronically has dramatically evened the playing field.
This has resulted in a situation in which both sides share a common interest in reducing
litigation costs.
DRYWALL PROCEEDINGS
Although an MDL has been established for federal drywall litigation, neither a venue nor
judge has yet been selected. Therefore, we can only attempt to predict what the
proceedings may look like based on the purpose of MDL and prior experiences.
Relevant Examples Experiences in several past MDL proceedings (Vioxx, breast
implant and asbestos) may be predictors of how the current MDL might be used.
The breast implant MDL presented substantial issues of general causation. Based on a
developing body of epidemiologic studies, defendants denied that the implants were
capable of causing the types of injuries claimed by plaintiffs. Plaintiffs relied on earlier
studies that showed a marginal effect. Analyzing the breast implant scientific studies,
their results and conclusions required highly specialized knowledge of medicine,
chemistry, toxicology and statistics not generally possessed by judges and attorneys. In
a groundbreaking decision, the Court appointed a panel of experts to analyze the
available information and provide an opinion as to whether there was a scientific
consensus that breast implants could cause the claimed injury. The panel’s conclusion
that the epidemiology failed to demonstrate general causation was the most important
development in the litigation.
It would be difficult to find a better example of a defendant using an MDL than Merck’s
handling of the Vioxx litigation. The availability of the MDL procedure reduced pressure
to use a class action to coordinate and consolidate the litigation nationwide. Avoiding
the class action, Merck prevented the possibility that a single catastrophic judgment
could be rendered against it. Merck lost little in accepting MDL proceedings because it
was not seriously asserting a general causation defense. Merck’s primary defense was
not that Vioxx could not cause plaintiffs’ claimed injuries (increased incidence of heart
attacks). Rather, after establishing that there were many other general causes of heart
attacks, Merck focused its defense on specific plaintiff’s claims of injury. Pursuing this