Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
numbers of consumers suffer adverse reactions to the same drug. If other
corporations with vast financial resources follow Merck’s lead, the disparate
economic interests among the rich corporation, plaintiffs’ lawyers, and injured
consumers is likely to result in pragmatic decision making on the part of the business
stakeholders that minimizes the importance of individual justice. The strategy of
trying every case and making plaintiffs’ lawyers accept the reality of costly
litigation over an extended period of time transforms plaintiffs’ lawyers from
zealous advocates to pragmatic entrepreneurs. From a pragmatic business
perspective, achieving individual justice seems much less important than garnering
a settlement tailored toward global considerations and a return on an investment.
Frank M. McClellan, The Vioxx Litigation: A Critical Look at Trial Tactics, the Tort System, and
the Roles of Lawyers in Mass Tort Litigation, 57 DEPAUL L. REV. 509 (2008).
As in the BP litigation, settlement is not necessarily where the story ends. Three and a half years
after the settlement, the plaintiffs’ lawyers were in court suing each other over the division of the
$315 million attorney’s fee award from the settlement. Dionne Searcey, The Vioxx Endgame: It’s
All About the Fees, WALL ST. J. L. BLOG, Mar. 3, 2011, available at https://perma.cc/T9BZ-
DAGU. This highlights another distinction between class actions and multi-district litigation. In
a class action lawsuit, the class counsel, appointed by the judge, has authority to divide up work
and fees. In an MDL, a “Plaintiff’s Committee” composed of multiple firms, sometimes with
competing interests, represents the interests of the plaintiffs’ lawyers and is responsible for
managing contentious issues like the division of fees.
Howard Erichson explores the dynamics among the plaintiffs’ lawyers engaged in similar
cases and argues that in mass tort cases, some kind of aggregation is inevitable. Erichson invites
his readers to imagine a mass tort situation involving a hypothetical widget maker known as
Widgium:
Picture one thousand such lawsuits. Each is brought by a plaintiff, or perhaps
several plaintiffs, asserting claims against various defendants based on exposure to
widgium. Each looks like a free-standing individual lawsuit. But in fact, all
thousand lawsuits are part of a single litigation, linked together much more closely
than it appears at first glance. The plaintiffs’ lawyers are working together to
coordinate their efforts. Many of them belong to the Widgium Litigation Group
sponsored by the Association of Trial Lawyers of America, and receive the
Widgium Newsletter, which keeps them abreast of litigation developments. The
leading plaintiffs’ lawyers—each of whom represents dozens or even hundreds of
individual widgium plaintiffs—have presented training sessions to teach other
lawyers how to try a widgium case. The plaintiffs’ lawyers have pooled resources
to hire experts and have shared the costs of discovery. . . .
Informal aggregation practices have filled the void left by formal procedures that
do not achieve full aggregation of related claims. . . .
In informally aggregated litigation, settlement negotiations may occur with little
control by the individual client, and trial preparation often is handled “by a
committee of plaintiffs’ lawyers” who lack regular contact with most of the
plaintiffs who rely on those lawyers’ work. . . .
660