“Mass Torts in a World of Settlement” author Richard Nagareda comments on Vioxx settlement

Nov 1, 2007

"The $4.85 billion settlement announced this morning by Merck in the Vioxx litigation shows, once again, that we truly are in a world of settlement when it comes to the resolution of mass personal injury lawsuits. Lawyers on both sides have put together a business transaction, with all the complexity, sophistication and financial stakes of a corporate merger. That Merck has settled for just under $5 billion only a few years after analysts were predicting a cost of $10-25 billion from the Vioxx litigation is a crucial fact that amply vindicates the level-headed management of this litigation by U.S. District Judge Eldon Fallon and the tough trial strategy of Merck vice president Kenneth Frazier. After several actual trials, we have much more accurate picture of how much these claims are really worth. The big question now is whether the medical and exposure criteria set out in the settlement will work as anticipated, or whether the settlement will be deluged by dubious claims in what I call the Field of Dreams problem: If you build it, they will come." 
– Richard Nagareda, Professor of Law and Director of the Cecil D. Branstetter Litigation & Dispute Resolution Program at Vanderbilt Law School

"Mass Torts in a World of Settlement" explores lawyers’ role in multi-billion-dollar world of mass tort lawsuits

nagareda book cover

Vioxx, Fen-Phen, Agent Orange, the Dalkon Shield, silicone breast implants and asbestos comprise a short list of major personal-injury lawsuits that have dominated the multi-billion dollar world of mass tort litigation over the past four decades.

Private lawyers typically become the controversial stars in the highly publicized and often criticized public drama of big-money lawsuits. But Vanderbilt law professor Richard Nagareda argues that these lawsuits and the immense and highly visible settlements generated as a result have transformed the legal system so extensively that rival teams of lawyers now actually function as sophisticated governing powers rather than litigators.
In his newly released book, Mass Torts in a World of Settlement (University of Chicago Press), Professor Nagareda not only analyzes the role of the lawyer in mass tort litigation, but proposes a controversial solution: the replacement of the existing tort system with a private administrative framework to address current and future claims.

“The real story of mass torts today is the story of how these lawyers have come to function as a rival regime of legal reform, one that wields the power to replace the legal rights of affected persons with a new set of rights spelled out in some manner of settlement agreement,” Professor Nagareda says. “Real lawyers in the real world are both heroes and villains here.”

Professor Nagareda’s ambitious plan to reform mass torts is founded on the fact that most mass tort cases are ultimately resolved via elaborate settlement negotiations. He advocates that mass torts be re-conceived as a form of governance — and their settlement an opportunity to form a privatized, administrative system to compensate victims — rather than as a problem of litigation He proposes to design improved oversight and accountability into this privatized system of compensation by blending the work of private attorneys with the authority of public administrative agencies.

“[Richard Nagareda] offers an ingenious and attractive public law solution to what he properly sees as a public law problem—and shows us how to achieve it," Peter Schuck, the Simeon E. Baldwin Professor of Law at Yale, said. Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University Law School, characterized Professor Nagareda’s book as "an indispensable read for anyone interested in the real world of how injured individuals are compensated in mass American society.”

Vanderbilt Law School hosted a panel discussion of Professor Nagareda’s book on September 14 featuring tort scholars Anthony Sebok, who joins the faculty of the Benjamin N. Cardozo School of Law this fall, and Catherine Sharkey of Columbia Law School.

Richard Nagareda discusses his research in these three video clips:
Video 1 – What do you see as the main problem with mass tort litigation?
Video 2 – Why is this a problem, and what should the legal system do to address it?
Video 3 – What would the solution you propose in Mass Torts in a World of Settlement accomplish?

Read Anthony Sebok’s September 25 FindLaw.com blog about Mass Torts in a World of Settlement: When is a class action superior to multiple individual lawsuits? 

Professor Nagareda is the director of the Cecil D. Branstetter Litigation & Dispute Resolution Program and holds the Tarkington Chair in Teaching Excellence at Vanderbilt Law School.

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