It\u27s Not Over \u27Til It\u27s Over: Mandating Federal Pretrial Jurisdiction and Oversight in Mass Torts

In 2004, just five years after introducing the drug, Vioxx, pharmaceutical company, Merck, voluntarily withdrew the prescription pain-killer after a clinical study suggested that the drug increased the risk of heart attack and stroke. But in that relatively short time, an estimated 20 million Americans had already taken the drug. By late 2007, Merck announced it would pay $4.85 billion — the largest drug settlement ever — in “global settlements” for Vioxx-related claims. These settlements ultimately included roughly 47,000 individual lawsuits and about 265 potential class actions, but the Vioxx settlements were far from global. In 2012, a purported parallel state court class action proceeded on a collision course with the “global settlements,” threatening their finality. Reacting to that threat, the federal court overseeing the settlements ordered a limited injunction against the state court action. In doing so, the court followed a trend in mass torts in which federal courts have enjoined parallel state actions, despite a prohibition against such injunctions that is nearly as old as this nation’s dual court system. As analyzed in this article, this trend is both predictable and problematic. This article explores developments in mass tort litigation over the past two decades and concludes it is more important than ever to adopt a statutory mechanism that allows for pretrial consolidation of all related inter-state cases to prevent situations like the one in Vioxx from happening. In addition, given the growing reliance on multidistrict consolidation to manage mass tort litigation and the strong likelihood of settlement that results when cases are consolidated, this paper recommends judicial oversight of settlement negotiations and resulting settlements, similar to the judicial oversight required in settlement class actions. These changes would lessen inefficiencies while enhancing predictability and fairness in the kinds of mass tort cases in which treatment as a federal class action is not available