How Plaintiffs' Lawyers Evaluate Mass Torts

Today at Law.com, there's an article about litigation over Viagra's reported propensity to cause blindness: "Attorneys Soft of Viagra Suits," by Justin Scheck.

Leaving aside the awful headline, the article is interesting for the cast of mass-tort lawyers and consultants who Scheck lined up for quotes. We can assume he has them all on speed-dial: Mary Alexander, Ramon Lopez, Danny Becnel Jr., Bill Audet, and Jennifer Stanich-Banmiller of Wingtip Communications. Of these, only Becnel seemed excited about Viagra litigation.

Reading between the lines of the article, it's evident what plaintiffs' mass-tort lawyers look for in deciding what sorts of cases to work on. Here are some of the defining characteristics of a good case:

• A serious and "signature" injury;
• Science linking the injury to the particular drug;
• A viable defendant;
• Evidence that the defendant knew of the risk of injury but failed to disclose it.

Case-selection has been critically important to lawyers who have made decisions over the past ten years litigation involving diet drugs, Baycol, Rezulin, Serzone, Propulsid, ephedra, PPA, Oxycontin, Prempro, and other pharmaceuticals. A popular business model has been to test the mass-tort waters by assigning a chunk of money--$200,000, say--to advertise for a particular mass tort. Often, the advertising lawyer plans to build up a group of cases then refer them to another mass-tort lawyer. The trouble is, a group of cases alone does not guarantee any return for the clients or the lawyer: the lawyer has to advertise for the right case and establish his selection criteria well enough that he isn't rejecting good cases or failing to reject bad ones.

To see the way these ideas can be applied to the real-life Vioxx litigation, see the post I did in October, 2004, predicting the "cast of characters" I thought would quickly grow up around the Vioxx case. So far, I'd say my predictions were pretty good!

Comments

[Tom]

I've always said that lawyers are the biggest gamblers I've ever known. What other industry has people investing hundreds of thousands of dollars for something that may or may not pay a single dime. If the cases do pay off, the return can be enormous. It may take years and years to get any return, but it still can be a financial windfall.
According to the criteria listed in this post, the big question seems to be whether or not Pzizer knew that Viagra could cause problems with someones eyesight. My guess would be that this is not a mass tort worth investing in, but I've been wrong before. I remember thinking that many of the people that took Baycol were in poor health to begin with.
Evan, are you looking into these cases? If not, why?

[Evan]

Tom: So far, the closest I've come to litigation involving
Viagra is this post. Why not more? I haven't even looked into enough to answer the question. Maybe I will later.