Winning Mass Tort Litigation Strategies

Jeff HinesJeff Hines

Philly’s Complex Litigation Philly’s Complex Litigation CenterCenter

Judicial HellholeJudicial Hellhole Massive Filing FeesMassive Filing Fees Economic StimulusEconomic Stimulus Judge Sandra Mazer MossJudge Sandra Mazer Moss

Philly’s Complex Litigation Philly’s Complex Litigation CenterCenter

Expediency over FairnessExpediency over Fairness Multiple and Overlapping TrialsMultiple and Overlapping Trials Good luck challenging VenueGood luck challenging Venue 4,790 Cases4,790 Cases HRTHRT YAZYAZ

Early Bird Gets the WormEarly Bird Gets the Worm

Gather Information QuicklyGather Information Quickly Assemble Litigation TeamAssemble Litigation Team Develop Initial Defense StrategyDevelop Initial Defense Strategy Get ExpertsGet Experts Beware eDiscovery SanctionsBeware eDiscovery Sanctions

WYETH WYETH ““BAD DOCUMENTBAD DOCUMENT””

It Takes a Village- It Takes a Village- The Litigation TeamThe Litigation Team

ClientClient

National CounselNational Counsel

Local CounselLocal Counsel

Virtual Law FirmVirtual Law Firm

Just Pay The Bills and Shut UpJust Pay The Bills and Shut Up- Insurance- Insurance

Who is funding the defense and Who is funding the defense and potential liability?potential liability?

Coverage in Place AgreementsCoverage in Place Agreements

CommunicationCommunication

Know When to Hold Know When to Hold ‘‘em, em, Know When to Fold Know When to Fold ‘‘emem

- Defense Strategy- Defense Strategy

BayerBayer Baycol LitigationBaycol Litigation

U.S. SilicaU.S. Silica $0 for post 1985 $0 for post 1985 YOFEYOFE

TelectronicsTelectronics Summary Jury Summary Jury TrialTrial

Accufix Protrusion

Different Strokes for Different Strokes for Different FolksDifferent Folks

Flexible StrategiesFlexible Strategies

Case Study - WyethCase Study - Wyeth

Screening Tests Are Reliable?

Diagnostic tests used by expert can be altered to produce a desired result.

Tricuspid

Aortic

Pulmonic

Mitral

Right Atrium

Left Atrium

Right Ventricle

Left Ventricle

Left Atrium

Left VentricleRight Ventricle

Right Atrium

Mitral Regurgitation

13145002.13

“The Court also grants Wyeth’s motion for the appointment of an expert or experts to aid it in determining the propriety of Wyeth’s challenges.”

In Phase I, the issues In Phase I, the issues of whether Plaintiff of whether Plaintiff has suffered a has suffered a compensable injury compensable injury resulting from the resulting from the use of diet drugs use of diet drugs and, if so, the and, if so, the amount of amount of compensatory compensatory damages, shall be damages, shall be tried. In Phase II, tried. In Phase II, which shall take which shall take place only if Plaintiff place only if Plaintiff prevails in Phase I prevails in Phase I and the Wyeth and the Wyeth Defendants then Defendants then elect to contest elect to contest negligence, the issue negligence, the issue of whether the of whether the Wyeth Defendants Wyeth Defendants were negligent in a were negligent in a manner causally manner causally related to Plaintiffrelated to Plaintiff’’s s use of the drugs use of the drugs shall be tried.shall be tried.

The First Time Better be The First Time Better be the Right Time…. (or else)the Right Time…. (or else) -Identifying Company Witnesses -Identifying Company Witnesses

Who is going to tell your story?Who is going to tell your story? Salesman?Salesman? General Counsel?General Counsel?

- waiver- waiver Prepare for the FuturePrepare for the Future

- consulting agreements - consulting agreements for retireesfor retirees

We Are No Longer in KansasWe Are No Longer in Kansas-Technology-Technology

Database creationDatabase creation

historical documentshistorical documents

litigation documentslitigation documents

medical and scientific literaturemedical and scientific literature Web sitesWeb sites Trial GraphicsTrial Graphics Virtual Law FirmVirtual Law Firm

All for One and One for AllAll for One and One for All-- Sometimes-- Sometimes

Identify general areas for cost Identify general areas for cost sharingsharing

Combine efforts to identify and workup Combine efforts to identify and workup experts with similarly situated experts with similarly situated defendantsdefendants

Isolate the turncoat defendantIsolate the turncoat defendant

Benefits – centralized decision makingBenefits – centralized decision making

Costs – centralized decision making!Costs – centralized decision making!

Public Relations StrategyPublic Relations Strategy Why Deal with the Media? Why Deal with the Media?

Plaintiffs can, plaintiffs do and plaintiffs will. Plaintiffs can, plaintiffs do and plaintiffs will. "I was feeding a lot of information to "I was feeding a lot of information to

European and U.S. papers. It was part of European and U.S. papers. It was part of my strategy to affect the stock price, my strategy to affect the stock price, which I was very successful at.which I was very successful at.““ –– Mikal Mikal Watts, plaintiffsWatts, plaintiffs’’ attorney (WSJ 5/3/04) attorney (WSJ 5/3/04)

““Do unto them before they do unto you.Do unto them before they do unto you.””

The Three Big LiesThe Three Big Lies

1.1. We canWe can’’t comment on matters t comment on matters before the court.before the court.

2.2. ItIt’’s not appropriate to try this case s not appropriate to try this case in the media. in the media.

3.3. We expect to be fully vindicated in We expect to be fully vindicated in court. court.

Silica LitigationSilica Litigation

Defendants went on the offensive first.Defendants went on the offensive first. Claims v. government statisticsClaims v. government statistics Asbestos retreadsAsbestos retreads Doctors withdrawing diagnosesDoctors withdrawing diagnoses

Built case with statistics and court Built case with statistics and court documents, not press releases.documents, not press releases. More than 125 news articles and 17 More than 125 news articles and 17

newspaper editorials.newspaper editorials. ItIt’’s been a winning strategy: at least s been a winning strategy: at least

65% of the silica MDL claims have 65% of the silica MDL claims have been dismissed.been dismissed.

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

1968197019721974197619781980198219841986198819901992199419961998200020022004

Number of deaths, by year

Number of plaintiffs, by year

5,218

19,389

5,051

As silicosis deaths decline, As silicosis deaths decline, litigation increaseslitigation increases

Legislative ReliefLegislative Relief

Common ProvisionsCommon Provisions

Qualified PhysicianQualified Physician Anti-Screener ProvisionsAnti-Screener Provisions ImpairmentImpairment Joinder and NexusJoinder and Nexus