Mass Tort Attorneys and Judges Provide Insights on What Makes a Settlement Successful
Settlements in mass tort cases—especially those involving pharmaceuticals—tend to be complex and require a number of factors to be in place before they can come together. These settlements were the topic of discussion for a distinguished panel of attorneys and judges at the “Mass Torts Settlements Session” during the Mass Torts Judicial Forum with Hon. Marina Corodemus (Ret.) held on June 27, 2011 in Philadelphia.
The panel consisted of: Christopher Seeger of Seeger Weiss, LLP and Paul Pennock of Weitz & Luxenberg, who represented the plaintiffs’ perspective; Susan Sharko of Drinker, Biddle & Reath and Nina Gussack of Pepper Hamilton, representing the defense point of view; and Judges Martin Shulman of the New York Supreme Court and Sandra Mazer Moss of the Philadelphia Court of Common Pleas.
When To Discuss?
Gussack commented that although the right time to have a conversation about settlement is rarely as early as the plaintiffs might suggest, “there are, surprisingly, opportunities to have conversations relatively early in the litigation and there are times to have conversations that cannot be had frankly and productively until much, much later in the litigation.”
Seeger commented that, although when a complaint is first filed is probably not the best time to start settlement negotiations, the right time to talk “comes down to a lot of factors.”
“But the reality of that, I think is just really difficult, so the thing has to play out. I don’t know if it has to play out to trials … but, in the beginning it’s just really hard to settle a mass tort with those kind of numbers, without having some answers,” he said.
Gussack agreed that the litigation should have time to develop before settlement talks begin.
“When the plaintiffs know they can get their experts to testify and can get a case to the jury, and so they’ve cleared the preliminary hurdles, whether that’s a conversation that occurs after Daubert hearings or whether it occurs after trial. When … the statute has elapsed sufficiently so that you have to find the corral of litigation that you’re dealing with … Then, you’re in a position to have a conversation,” said Gussack.
She also described another important factor for productive settlement talks.
“You need to know who you’re talking with on the other side. You need to know that there is somebody who appreciates all of the strengths and weaknesses of the litigation, and who has a sense of what the real value of the case is and has the ability to influence perhaps more than one plaintiff’s lawyer on the other side, or that by engaging with one you may be in fact setting some guidelines for others who follow,” Gussack said.
“I think there has to be confidence in the plaintiff’s bar, in the attorneys who are leading the litigation and negotiating the settlements so that there is some faith and confidence in the results reached in those negotiations. If there isn’t that, you know, then the settlement can fall apart just because people don’t want to be involved in it,” he said.
Improvidently Filed Cases
The panel addressed the problems that arise from what they referred to as “improvidently filed cases”, or cases that are lacking in evidentiary support in one way or another, in a mass tort litigation, and how they can affect a mass tort settlement.
Pennock explained how some of these cases might end up getting filed.
“So in a lot of these situations … we get into a litigation and we’re taking on a lot of plaintiffs very quickly and want to represent them as properly and as effectively as we can … [but] as the litigation pans out we learn that there are problems with the case,” said Pennock.
“I think that, generally speaking, a lot of the improvidently filed cases, unless it’s just patently not a case at all … they are probably left in the good hands of a special settlement master,” said Pennock.
“I think when you talk about improvidently filed cases you really have a couple different categories,” said Seeger. “You’ve got the cases that Paul identified which are those early in the litigation, in which it looks like they’re injured from the product, but there’s not a lot of science … And it can go one way or another.”
He suggested, in this situation, that the cases be dismissed without prejudice.
“Then you got the cases where, there’s just no evidence, and this happens, there’s a handful of cases, that end up filed for whatever reason, where there is no evidence of injury or product use. Maybe there’s a stronger word than improvidently filed for those, but those become problems sometimes when you are trying to settle,” said Seeger.
“I don’t disagree that there are cases that really should not be part of the process in the end and we have an obligation to speak to our clients and say, ‘look you do not have a case, we filed it to preserve your statute because we couldn’t get a tolling agreement, but you do not have a case, we are not going to be able to prove anything. You need to dismiss the case, and we are under an obligation to tell you to do that.’ And we do dismiss them by the dozens, if not hundreds in many instances,” said Pennock.
The panelists also discussed the impact of law firms’ advertising on a mass tort settlement.
“Over the years, the thousands of people that I’ve represented, the vast majority of them first came to know that they may have been wronged …through the lawyer’s advertising. So if you believe, as I do, that people who believe they’ve been wronged should have an opportunity to address that wrong in our civil court system; and if you believe, as I do, that they deserve representation they can afford (i.e. contingent fee); then I think that the advertising itself is not something that is intrinsically bad,” Pennock said.
Seeger agreed with Pennock’s statement.
“The companies are obviously out there marketing the product, the great benefits of the product, getting people to buy it, getting the people to go to their doctors to write these prescriptions. You need to have something on the other side that says ‘by the way, something’s gone wrong here, and you might be a victim of this problem.’ I think the problem in the context of settlement discussions, where advertising becomes a problem, is if a defendant approaches the plaintiff side about negotiating a settlement, then all of the sudden you see a new ramped up wave of advertising. Because that then suggests some information about what’s supposed to be quiet got out,” he said.
Gussack stated that the court’s guidance can really help a case move toward settlement.
“The sooner that the court provides guidance to the parties, about what’s a good claim, what’s a bad claim, what’s compensable, what’s not … I know that courts have legions of stories that say, if I set a trial date the case will settle. That’s really not the case in mass tort, when there’s thousands of thousands of cases. What happens is, if a schedule is set that allows the parties to inform themselves about the strengths and weaknesses of the case. There are opportunities to have conversations sooner than trial, and I think schedules and having the court provide guidance earlier is really helpful to the parties,” she said.
“I think that we can help with settlement by giving you firm, credible trial dates, within 18 months to 2 years of filing,” Judge Moss responded. “Which is according to the ABA standards, so that you know if all else fails we are really going to get these cases to trial. I think that we try and work firm-by-firm settlements and in mass torts that seems to work really well.”