Class Action Fairness Act of 2005--Resumed
CLASS ACTION FAIRNESS ACT OF 2005--Resumed
BREAK IN TRANSCRIPT
Mr. DURBIN. Mr. President, I was on the floor of the Senate earlier preparing to offer an amendment, and I lost my voice. There was cheering in the galleries, but I have decided to soldier on and try to present this amendment again. I will try to abbreviate any remarks to spare the audience from what may be a painful process for them.
We are considering the Class Action Fairness Act of 2005. I have listened to some of the speeches on the Senate floor. Senator Lott of Mississippi said: Do not be confused. This is not tort reform, this is court reform. I thought that was an interesting comment because there has been some concern over whether this class action change would affect a body of lawsuits known as mass torts--in other words, the types of class actions that relate to physical injuries that are common to mass tort cases.
Section 4(a) of S. 5 talks about ``mass actions,'' a different term altogether. It requires mass actions be treated the same as class actions under the bill. The big question is whether that kind of lawsuit will be taken out of a State court and put into a Federal court. As I mentioned in my earlier remarks, Federal courts are not friendly to class actions. They are very strict in those that they would consider, and then they are very limited in their scope of liabilities. The business interests that are pushing for this change in the law know that if they can get these lawsuits into a Federal court, they are less likely to be found liable. That is what this whole debate is all about.
I have tried to take a close look at the mass actions section of this class action bill and ask how it would apply to a mass tort situation. Mass torts are large-scale personal injury cases resulting from accidents, environmental disasters, or dangerous drugs that are widely sold. The asbestos exposure situation we will be considering this year is another example of a mass tort.
These personal injury claims are usually based on State laws, and almost every State has established rules of procedure allowing their State courts to customize the needs of their litigants in these complex cases. I am afraid if S. 5 becomes law, the so-called mass action provision will preempt all of these State procedures and take them out of State courts.
The supporters of the bill claim that mass actions are not the same as mass torts and that they have no desire to affect mass tort cases. I know that is their position, but it is not what their bill says. If the goal is to federalize all State personal injury cases, supporters should be open about it and say it publicly.
I am sure the U.S. Chamber of Commerce, the American Tort Reform Association, all the business and insurance groups that support this bill would like to see all cases sent to Federal court. I knew from my years in practice in downstate Illinois, that Federal courts were more conservative than State courts.
But even these groups do not believe they can be that lucky with this bill. Instead, they came to us and said: No, our bill is very narrow, it only deals with class actions and not all cases. When I take a look at section 4, though, I am concerned about it. It sounds an awful lot like mass torts. Here is how they describe it. Section 4(A) defines it:
..... any civil action ..... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact .....
I am sure for anyone who has been patient enough to follow this debate this is a little confusing, so let me try by an example to give an idea of what is at stake in changing this law.
Everybody in America knows that in late September 2004, Merck & Co., a pharmaceutical giant, pulled its blockbuster pain medication Vioxx off the market. The largest prescription drug recall in history occurred as a result of a new study that showed that Vioxx doubled the risk of heart attack and stroke in some patients. With annual sales of $2.5 billion, Vioxx was one of the most successful new drugs ever. It was one of a new class of drugs called COX-2 inhibitors.
Some 20 million Americans took Vioxx in the 5 1/2 years it was sold, but we don't know how many thousands had heart attacks and strokes that could have been attributed to this drug.
Since the discovery of the dangers of Vioxx, hundreds of cases from all over the country have been filed against Merck, and we can anticipate thousands more.
I would say as a former trial lawyer who served as both defense counsel in some cases and plaintiff's counsel in others, this is a pretty serious situation for Merck, and they know it. They have conceded the fact that the drug was dangerous. They took it off the market. Having taken it off the market, it is understandable that some who were injured are going to seek just compensation.
Let us look at a few cases. Let us take the case of Janet Huggins, which is just one of hundreds of similar cases working their way through the court system today.
Mrs. Huggins of Tennessee was a 39-year-old woman who died of a sudden heart attack after taking Vioxx. She was the mother of a 9-year-old son. When she was diagnosed with the early onset of rheumatoid arthritis, Vioxx was prescribed. She had no former cardiac problems or family history. According to her medical records, Mrs. Huggins was in, otherwise, excellent health.
But on September 25, 2004, she died of a sudden heart attack--less than a month after she started taking Vioxx. She was buried on the very day in September that Merck took Vioxx off the market.
On October 28, 2004, her husband Monty filed a claim against Merck in the Superior Court of New Jersey, Atlantic City Division. Why New Jersey? This couple is from Tennessee. Because that is the State where Merck is headquartered.
In an interview on ``60 Minutes,'' Mr. Huggins said: ``I believe my wife would be here'' if Merck had decided to take Vioxx off the market just 1 month earlier.
Then there was Richard ``Dickie'' Irvin of Florida, who was a 53-year-old former football coach, and president of the athletic booster association.
He had received his college football scholarship and was inducted into the school's football hall of fame. He went on to play in the Canadian League Football until suffering a career-ending injury.
In addition to coaching, he worked at a family-owned seafood shop where he was constantly moving crates of seafood. He rarely went to see a doctor and had no major medical problems.
In April 2001, Mr. Irvin was prescribed Vioxx for his football knee injury from years ago. Approximately 23 days after he began taking Vioxx, Mr. Irvin died from a sudden, unexpected heart attack. An autopsy revealed that his heart attack was caused by a sudden blood clot. This is the exact type of injury that has been associated with Vioxx use.
Mr. Irvin and his wife of 31 years had four children and three grandchildren.
John Newton of Texas, father of two, took Vioxx for osteoarthritis. On April 1, 2003, without warning, he began coughing violently and within minutes was coughing up blood. Before emergency medical services could be called, he collapsed in the arms of his 17-year-old son and died.
It was later determined that Mr. Newton died of a blood clot in his lung. He had no prior history of blood clots, or pulmonary disease. The cases go on and on in State after State.
Some of these cases such as the one brought by Mrs. Huggins' family have already been filed against Merck. Others are in the works.
But if the victims of Vioxx file suit in New Jersey, because that is where Merck is headquartered, their cases are automatically sent to the State's special mass torts court.
New Jersey is one of those States where the legislature established specialized courts to handle certain types of cases. The courts in New Jersey have the authority to combine cases. They can consolidate cases. That seems reasonable, when you consider all of the people who will be suing Merck in New Jersey, where they are headquartered, from all over the United States with similar situations as the ones I just described.
What is so outrageous about having a lot of State-based personal injury claims filed separately which are then consolidated as the New Jersey courts can do by their own motion?
But under the mass action language of S. 5, their case and all other similar Vioxx cases will be taken out of the New Jersey special court and removed to a Federal court to be treated like a class action.
Why? If you take a look at the language in S. 5, the fact pattern fits nicely under the definition of a ``mass action'' to remove the case to Federal court, while at the same time none of the exemptions apply to keep Vioxx cases in State court.
So understand, for those who are arguing that this law we are considering is simply a case of changing jurisdictions in courts and stopping righteous lawyers from filing class action lawsuits, that it is much more.
For Merck, this law is the answer to a prayer. They will take their case out of the State court into a Federal court as a class action, which is less likely to certify the class even though the series of mass tort cases were not even filed as a class action.
That is why I am offering this amendment. My amendment would make two small, narrow, and common sense changes.
First, it would allow State courts to continue to consolidate these individual personal injury cases on their own motion without losing jurisdiction to a federal court under S. 5.
Second, it would also allow courts that consolidate cases not just for pretrial but all the way through trial or settlement to retain their jurisdiction and not lose it to a Federal court.
My amendment provides parity in the litigation process because one of the exceptions to the mass action definition in S. 5 already provides for defendants to consolidate cases without losing jurisdiction to a Federal court. I think it is important for the court--in addition to the defendant--to have this right as well.
I also think it is important for courts to be able to schedule their own calendar of cases without having to worry whether they would lose jurisdiction over their consolidated cases at certain phases of litigation. They should not be limited ``solely'' to the pretrial proceedings.
These two small changes will ensure that mass tort cases involving personal injury claims that are not intended to be affected by S. 5 can continue to remain in State courts throughout the duration of the proceeding. The supporters of this bill claim that is their intent, and I want to make sure the language in S. 5 reflects this purpose.
AMENDMENT NO. 3
(Purpose: To preserve State court procedures for handling mass actions)
Mr. DURBIN. Mr. President, I send the amendment to the desk.
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