Tuesday, August 29, 2006

Allen v. Bayer Corp. (9th Cir. - Aug. 29, 2006)

Want to be a district court judge? Seems like a good job, you say? Tolerable salary. Life tenure. Law clerks to do some of the work for you. Get to wear a robe during the day. Sounds pretty cool, eh?

Just to be sure, read this opinion, and get a sense of what it must be like to be Judge Rothstein in the Western District of Washington. In what I can only imagine was punishment for evils in a previous life -- and resulting bad karma -- Judge Rothstein was assigned the 3300 MDL cases alleging injury from phenylopropanolamine ("PPA"), which was used in many decongestants and weight-control products until the FDA discovered that it potentially increased the risk of stroke.

The opinion gives a keen sense of three things. First, the procedural nightmare -- and judicial streamlining and short-circuiting -- that necessarily accompanies these mass MDL cases. Second, the critical nature of active judicial involvement in providing individualized structure to the litigation of such disputes. Finally, the opinion reflects just how poorly some (and perhaps many) lawyers litigate these MDL cases, and the large numbers who fail to perform even the most simple tasks and even after dire and repeated warnings that their cases will be dismissed if they fail to comply.

This is undoubtedly the case only for a portion of the claimants. But one nonetheless gets a strong sense that at least some portion of the lawyers in these case are merely pushing paper around -- and not even doing that! -- in a effort to obtain a quick buck in the hope that they can file a facile claim in a mass tort action and obtain a contingency without actually providing much (if any) service to their clients.

There are assuredly lawyers in these MDL cases that do massive amounts of work, and are justly rewarded for their efforts. But then there are the lawyers, and cases, discussed at length in this opinion. Which do not look good.

Admittedly, in some cases, perhaps the clients are also to blame. Perhaps the clients are the ones (or are also) looking for easy money without any actual effort or demonstration of harm. But I can't help thinking that, for at least most of the cases mentioned in this opinion, the cases were dismissed largely due to the incompetence of counsel.

Which is unfortunate.

Anyone who hasn't been personally associated with an MDL case will get a keen sense of (parts of) them by reading this opinion. It's both informative and enlightening.