Among the hardest issues facing courts today is how to resolve fairly thousands of lawsuits that are filed after mass disasters or product failure. When the pharmaceutical company Merck pulled the bestselling painkiller Vioxx from the market, for example, more than 75,000 lawsuits were filed all over the United States. As the Vioxx case unfolded, Professor Alexandra Lahav, an expert on civil procedure and complex litigation, kept track of the verdicts on her blog – the Mass Tort Litigation Blog – and saw that although more than half of the time Merck prevailed, in many cases plaintiffs were awarded tens of millions of dollars.
One reason for this differential was the way the cases were selected for trial: each side got to cherrypick its best cases. The problem of what to do with verdict volatility spurred Professor Lahav to find a solution that is fair to both plaintiffs and defendants. One promising strategy is for courts to select a group of cases randomly and try those cases to verdict, then use the resulting verdicts to allocate fault and compensation with respect to all the other cases. These are called “bellwether trials.” Professor Lahav argued in a recent article published in the Texas Law Review that a sampling process such as this one – as long as the sample is large enough and randomly selected – could be fairer than individual trials because similarly situated plaintiffs would receive the same compensation. One of Professor Lahav’s current projects continues this line of research. She is collaborating with a federal judge and a UConn Law student on a project studying the resolution of the lawsuits brought in the wake of the tragedy of 9/11.
In addition to writing about mass torts and innovative procedures like bellwether trials, Professor Lahav teaches and writes about class actions and litigation more generally. This year she presented the latest developments in class action law at the ABA Annual Class Action Institute (with her co-author John C. Coffee, Jr. of Columbia Law) and spoke on the changes to the federal discovery rules at the Connecticut Bar Association’s Annual Meeting.
Professor Lahav is co-author of the fourth edition of the popular civil procedure casebook, Civil Procedure: Doctrine, Practice, and Context, and is currently writing a book entitled In Praise of Litigation, which defends the role of litigation in American democracy.