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Mass Torts : Where Have All The Opt Outs Gone?

Every summer I whacks nostalgic about Friday Mountain Boys Camp in Driftwood, Texas. It was my summer camp for 7 years during the late sixties to early seventies. I remember Harry Golightly, the archery instructor, playing his guitar around the campfire singing, “Where have all the flowers gone…” Where indeed, where have all the opt-outs gone?

Fast-forward twenty-five years from those days by the campfire and our firm is contemplating the proposed Fen-Phen National Settlement Agreement. The agreement pays most of the clients $6000.00 dollars if they opt in. Never mind justifying the client’s cut which after fees, expenses and liens would be around $2000.00, the question remained, “does $6000.00 fairly compensate them for heart valve damage?” We thought not and as it turned out, so did the juries.

So, what has happened since then? Have any significant group of mass tort plaintiffs turned down settlements and opted out? When a proposed settlement occurs and the value seems low, which is always relative, has anyone asked, “Can my client opt out if they don’t want to accept the settlement?” As firms consider mass tort settlements, much of the justification for acceptance centers around getting expenses recouped, cases moved off the docket, and of course attorney’s fees, which, by the way, are all valid considerations. But, what if you have 100 cases rather than a thousand and you just think the cases have greater value? Is there another option? The answer depends on the settlement agreement. Usually, the opt out provision excludes punitive damages and bad liability evidence from the future trials. That was the case in Fen-Phen and the opt-out trials succeeded. Ultimately, if the MDL judge is willing to remand the cases or transfer them back to the appropriate Federal court, then it may make sense to do just that.

When contemplating a mass tort settlement, corporations are most concerned about the “tail”. In other words, will we face a Fen-Phen situation where uncooperative opt out clients expose us to a huge additional payment? Since Fen-Phen, have we seen a significant opt out action? Not so much and the answer is multi-faceted. First, there certainly is a large incentive to go along and get along when it comes to mass tort settlements. Squeaky wheels don’t necessarily get the grease. Second, trying a pharmaceutical case is expensive and requires certain expertise. Third, in many jurisdictions the cases are made evermore difficult due to learned intermediary decisions, heeding rulings and tough juries.

Sometimes though, taking the road less traveled can make all the difference. Should you encounter a proposed settlement where the amount seems thin and opt-out rights exist, contact Morris Law Firm and let us assist you in making the right decision.

New Hire : Amy Anderson

bio morris law los angeles amy andersonMorris Law Firm is pleased to announce the association of Amy Anderson as our newest lawyer. Amy graduated cum laude at Pepperdine Law School in 2014 with a juris doctor degree and a certificate in dispute resolution. She is licensed to practice law in all California State Courts and before the U.S. District Court in the Central District of California. Amy began working here in 2015 as an associate attorney. Previously, she worked at Weitz & Luxenberg, P.C., where she represented mesothelioma victims against the manufacturers of asbestos-containing products. Amy's legal experience also includes working at the Pepperdine Asylum and Refugee Law Clinic under the tutelage of retired Judge Bruce J. Einhorn. She also interned with the Los Angeles County District Attorney, where she assisted with the prosecution of cases involving elder abuse, child abuse, hate crimes, sex crimes, stalking and family violence. Amy has served as a judicial intern to Justice Anin-Yeboah of the Supreme Court of Ghana in the city of Accra.

Her years at Pepperdine included a semester of participation with the school's International Moot Court team in London, U.K. and receipt of three CALI awards for high scholastic performance. Amy served as associate editor of the Pepperdine Law Review and as vice president of her law school's campus chapter of the International Justice Mission. Amy entered Pepperdine University School of Law after graduating summa cum laude in 2009 with a bachelor's degree in psychology from Oral Roberts University, where she also won numerous awards for academic achievement.

In her spare time, Amy volunteers with the Heal the Bay organization in Santa Monica, California, where she assists in the collection of data related to local Marine Protected Areas along the coast.

It's Football Season: Coaching for the New Associate

The concept of mentoring in the late 80’s went something like this: If you screw up, your colleagues will make like chickens pecking at a sore and take you down. This was before kids got trophies just for participating. As we enter football season and the undeniable wisdom real contact can offer, here are a few thoughts for the new associate. And before you ask, No, we didn't have the explicit version of Halestorm’s ‘Here’s To Us’, to motivate us. No, it had to come from inside.

There are countless articles promoting the virtues of the practice of law and the integrity necessary for success, but in this Trump age I wonder if it isn't more beneficial to simply be as disagreeable, arrogant, and egotistical as possible.

Think about the most successful lawyers you know. Do they really remember your wife’s name or yours for that matter? Most of them are so caught up in themselves that going to court is unthinkable because they might have to surrender the stage to the judge. At lunch, they ignore you as you blather on about your mortgage or charity work. You can tell they would just like to be anywhere else. They ignore your friend requests and you can forget about getting that AVVO endorsement.

Despite their behavior, what advice would they offer the incoming associate?

  1. Don’t be a doormat.
  2. Always, and I mean always, be the aggressor. None of that mamsy pamsy Lean Forward stuff, hit them in the sternum, kick them in the shin and if they knock you down, get back up and poke them in the eye Stooges style (You see, there was this show called the Three Stooges...)
  3. It doesn’t have to be personal. Don’t sit around bitching about opposing counsel. Remember, if all goes well, they are going to write us a big check. Our profession is one of the few non-athletic endeavors that expect disagreement, confrontation, and conflict. Do it with style in your writing and advocacy and don’t be so obvious.
  4. Protect your client no matter how much you hate them. Let’s face it, some clients are unrealistic and demand a lot of unnecessary time. Put your personal feelings aside and remember they are why we exist.
  5. Return all of your calls, emails and texts as soon as possible. Speed is critical in our world.
  6. Never ask a question unless you have researched the issue and simply can’t find the answer. Google it for God’s sake. In our day we had Digests.
  7. Get to work early and stay late. Don't ever think the boss appreciates watching you get inebriated at the bar after work, even if he or she is matching you drink for drink.
  8. If you pass by an accident scene and don’t think about whom they will hire, pull your head out and remember we are always working.
  9. Nothing moves cases to resolution like a trial setting. Please give me back all of the wasted minutes I spent arguing with adjusters. Remember, the jury is our leverage and it is rare to get full value for a case short of the courthouse steps.
  10. You can do this or I wouldn’t have hired you. Be a fanatic for our clients and remember, in the end, attitude is our edge and defeat is simply unacceptable.

Mailbox Money

Few things satisfy like going to the mailbox and finding that unexpected check. As lawyers, we are in the business of dispensing justice but we have to keep the lights on in the meantime. Spending meaningful time honing the craft of trial practice is a means towards an end. That end should be creating a network of referral lawyers that value your expertise. We have the expertise, staffing and commitment to leverage your case to a successful conclusion. Morris Law Firm is engaged in the arena of toxic tort litigation from asbestos related mesothelioma, pharmaceutical products and devices, to routine products liability claims. We will send you 1/3rd of the fee. Be the beneficiary of an MLF referral fee.

Stay In The Arena

Of all the unsolicited advice Megyn Kelly should have received, the first should have been STAY IN THE ARENA. Don't take a two week vacation. Yes, you are a big deal on a big stage. Don't show any weakness. Who cares if someone doesn't like your questions. You have a right to seek the answers. The practice of law is no different. Stand and deliver. Don't go to the corner in the middle of a round, especially if you can still see the opponent. Remember, as a trial lawyer, you are the Gladiator, seize the moment and win for your client!!!

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Los Angeles Attorneys specializing in Pharmaceutical Injuries, Medical Device Injuries, Mesothelioma, Auto Injuries, Premises Injuries, and Catastrophic Injuries across the nation.

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