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.