Winning Mass Tort Litigation Strategies Jeff Hines

Philly’s Complex Litigation Center  Judicial Hellhole  Massive Filing Fees  Economic Stimulus  Judge Sandra Mazer Moss

Philly’s Complex Litigation Center  Expediency over Fairness  Multiple and Overlapping Trials  Good luck challenging Venue  4,790 Cases  HRT  YAZ

Early Bird Gets the Worm  Gather Information Quickly  Assemble Litigation Team  Develop Initial Defense Strategy  Get Experts  Beware eDiscovery Sanctions

WYETH “ BAD DOCUMENT ”

It Takes a Village- The Litigation Team  Client  National Counsel  Local Counsel  Virtual Law Firm

Just Pay The Bills and Shut Up - Insurance  Who is funding the defense and potential liability?  Coverage in Place Agreements  Communication

Know When to Hold ‘ em, Know When to Fold ‘ em - Defense Strategy  Bayer  Baycol Litigation  U.S. Silica  $0 for post 1985 YOFE  Telectronics  Summary Jury Trial

Accufix Protrusion

Different Strokes for Different Folks  Flexible Strategies  Case Study - Wyeth

Screening Tests Are Reliable? Diagnostic tests used by expert can be altered to produce a desired result.

Tricuspid Aortic Pulmonic Mitral Right Atrium Left Atrium Right Ventricle Left Ventricle

Left Atrium Left Ventricle Right Ventricle Right Atrium Mitral Regurgitation

“ The Court also grants Wyeth ’ s motion for the appointment of an expert or experts to aid it in determining the propriety of Wyeth ’ s challenges. ”

In Phase I, the issues of whether Plaintiff has suffered a compensable injury resulting from the use of diet drugs and, if so, the amount of compensatory damages, shall be tried. In Phase II, which shall take place only if Plaintiff prevails in Phase I and the Wyeth Defendants then elect to contest negligence, the issue of whether the Wyeth Defendants were negligent in a manner causally related to Plaintiff ’ s use of the drugs shall be tried.

The First Time Better be the Right Time…. (or else) -Identifying Company Witnesses  Who is going to tell your story?  Salesman?  General Counsel? - waiver  Prepare for the Future - consulting agreements for retirees

We Are No Longer in Kansas -Technology  Database creation historical documents historical documents litigation documents medical and scientific literature medical and scientific literature  Web sites  Trial Graphics  Virtual Law Firm

All for One and One for All -- Sometimes  Identify general areas for cost sharing  Combine efforts to identify and workup experts with similarly situated defendants  Isolate the turncoat defendant  Benefits – centralized decision making  Costs – centralized decision making!

Public Relations Strategy Why Deal with the Media? Why Deal with the Media?  Plaintiffs can, plaintiffs do and plaintiffs will. "I was feeding a lot of information to European and U.S. papers. It was part of my strategy to affect the stock price, which I was very successful at. “ – Mikal Watts, plaintiffs ’ attorney (WSJ 5/3/04) "I was feeding a lot of information to European and U.S. papers. It was part of my strategy to affect the stock price, which I was very successful at. “ – Mikal Watts, plaintiffs ’ attorney (WSJ 5/3/04) “ Do unto them before they do unto you. ” “ Do unto them before they do unto you. ”

The Three Big Lies 1. We can ’ t comment on matters before the court. 2. It ’ s not appropriate to try this case in the media. 3. We expect to be fully vindicated in court.

Silica Litigation Defendants went on the offensive first. Defendants went on the offensive first. Claims v. government statistics Claims v. government statistics Asbestos retreads Asbestos retreads Doctors withdrawing diagnoses Doctors withdrawing diagnoses Built case with statistics and court documents, not press releases. Built case with statistics and court documents, not press releases. More than 125 news articles and 17 newspaper editorials. More than 125 news articles and 17 newspaper editorials. It ’ s been a winning strategy: at least 65% of the silica MDL claims have been dismissed. It ’ s been a winning strategy: at least 65% of the silica MDL claims have been dismissed.

As silicosis deaths decline, litigation increases

Legislative Relief

Common Provisions  Qualified Physician  Anti-Screener Provisions  Impairment  Joinder and Nexus