Is the real secret in tort reform not caving? Could be.
The former lead paint industry pushed back aggressively vs. settling and right now it seems to have the upper hand. Merck seems to be following in Sherwin-Williams' et al. footsteps and that pushing-back has been paying off. The latest Merck victory came from the New Jersey Supremes. It ruled that the personal injury health-insurers' Vioxx suits can't be bundled into a class-action one.
On THE WALL STREET JOURNAL Law Blog, Ashby Jones reports that the high Court's rationale was, "that class-action status for the plaintiffs would be inappropriate because 'common questions of act or law do not predominate.'"
Merck's string of victories, of course, comes with a price. Jones goes to note that thus far "Merck has spent more than $1 billion on the Vioxx litigation, and another $810 on reserves." Because of the complexity of public nuisance litigation and the duration of the saga [late 1990s to the present], Sherwin-Williams et al. have probably also paid a lot in legal fees, probably at premium pricing. But this could be viewed as an investment in getting the message out: Mess with us at your own legal-fee and public-relations peril. Tobacco caved and it's still being sued. The former lead paint industry not only is dealing from a position of legal strength but all in the courts of public opinion and financial markets.
There's a useful case study in pushing back vs. settling in recent litigation e.g. lead paint public nuisance, Vioxx and more.
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