Vanderbilt professor talks about Vioxx settlement; Nagareda offers a creative solution to manage high-stakes mass tort lawsuit claims

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Vioxx, Fen-Phen, Agent Orange, silicone breast implants, asbestos. This is just a short list of the major personal-injury lawsuits that have dominated the multi-billion dollar world of mass tort litigation.

Often, private lawyers are the controversial stars in this highly publicized and often criticized world of big-money lawsuits. But Vanderbilt law professor Richard Nagareda argues that these huge settlements have transformed the legal system so extensively that rival teams of lawyers operate as sophisticated governing powers rather than litigators.

Here’s what Nagareda had to say about the multi-billion dollar Merck settlement that came down on Friday, where Merck agreed to pay $4.85 billion into a fund to settle lawsuits connected to the arthritis drug Vioxx.

“The settlement announced this morning by Merck in the Vioxx litigation shows, once again, that we truly are in a world of settlement when it comes to the resolution of mass personal injury lawsuits. Lawyers on both sides have put together a business transaction, with all the complexity, sophistication, and financial stakes of a corporate merger. That Merck has settled for just under $5 billion only a few years after analysts were predicting a cost of $10-25 billion from the Vioxx litigation is a crucial fact that amply vindicates the level-headed management of this litigation by U.S. District Judge Eldon Fallon and the tough trial strategy of Merck vice president Kenneth Frazier. After several actual trials, we have a much more accurate picture of how much these claims are really worth. The big question now is whether the medical and exposure criteria set out in the settlement will work as anticipated, or whether the settlement will be deluged by dubious claims in what I call the ‘Field of Dreams’ problem: If you build it, they will come,” said Nagareda.

Nagareda has created an ambitious plan to reform mass tort lawsuits. He wants to stop thinking about mass torts as primarily a problem of litigation and start thinking about them as a form of governance and occasions to form a privatized, administrative system to compensate victims. His solution is to design improved oversight and accountability for this privatized system of compensation by blending innovatively the work of private attorneys with the authority of public administrative agencies.

“The real story of mass torts today is the story of how these lawyers have come to function as a rival regime of legal reform, one that wields the power to replace the legal rights of affected persons with a new set of rights spelled out in some manner of settlement agreement,” said Nagareda. “Real lawyers in the real world are both heroes and villains here.”

He explains his proposal in a newly released book called Mass Torts in a World of Settlement. Yale Law School professor Peter Schuck commented about Nagareda’s plan, “He offers an ingenious and attractive public law solution to what he properly sees as a public law problem – and shows us how to achieve it.” NYU School of Law professor Samuel Issacharoff calls Nagareda’s new research, “An indispensable read for anyone interested in the real world of how injured individuals are compensated in mass American society.”

Along with being a professor of law, Nagareda is also the director of the Cecil D. Branstetter Litigation & Dispute Resolution Program and the Tarkington Chair in Teaching Excellence at Vanderbilt Law School.

You can hear Nagareda talk about his research by clicking on

Media Contact: Amy Wolf, (615) 322-NEWS

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