Mass Tort Treatment of Pharmaceutical Product Liability Cases in England
Wilkinson, David, Defense Counsel Journal
ENGLAND was one of the first European Union ("EU") countries to introduce specific procedural provisions for "group actions" seeking recovery of damages in product liability cases. The group action model under Part 19.11 of the Civil Procedural Rules 1998 ("CPR") is based upon the desire to achieve the efficient administration and economic disposal of cases where there are common issues of fact and law.
I. Mass Tort Treatment
The group action procedure is still in its infancy in England, and it is rarely used in contrast to the great number of group actions in the United States. Currently, there are fifty-two active Group Litigation Orders ("GLO") in England with just five "medical" product liability cases.
Examples of multiple claimants' product liability cases that have been brought in the United Kingdom include: Opren (Benoxaprofen) arthritis drug case; tranquillizer claims (Benzodiazepine); whooping cough cases (Pertussis); African asbestos group action; HIV contaminated blood transfusion claims; and MMR claims. Many of the large group action product liability cases have settled before trial or have been withdrawn due to removal of state funding.
A. Group Litigation Orders
A GLO is made under Civil Procedural Rule 19.11, and it provides for the case management of claims that give rise to common or related issues of fact or law. The rules that govern GLOs do not attempt to be comprehensive. Rather, they are aimed at allowing judges to continue developing new case management techniques. In short, a GLO:
a) helps establish a group register;
b) sets out issues that identify the claims to be managed; and
c) specifies the court that will manage the claims on the register.
An application for a GLO is made by filing an application notice and presenting written evidence to the High Court. The written evidence must contain a summary of the litigation, the number and nature of claims already issued, the number of parties likely to be involved, the common issues of fact and law, and whether there are any matters that distinguish smaller groups of claims within the wider group.
B. Case Management
A managing judge is appointed, and he or she will assume overall responsibility for managing the claims. Directions given by the managing judge are likely to include:
a) appointing lead solicitors;
b) selecting a sample of claims to serve as the "lead claims";
c) setting up and managing the register;
d) establishing criteria for joining the register;
e) identifying the GLO issues; and
f) setting a costs cap on the costs that solicitors can claim. (1)
C. The Claimant Register
The GLO establishes a register that contains a list of all claimants. Judgments and orders handed down by a judge are binding on all claimants on the register (unless otherwise stated). (2) The claimants on the register rely on the judgments given in the "lead claims" for enforcement purposes. The GLO also provides a cut-off date by which time claims must be entered onto the register. The GLO is normally advertised to minimize the risk of individuals beginning independent proceedings at a later date. If a claimant misses the cut-off date, he or she can issue separate proceedings, but it is likely that these will be stayed pending the outcome of the group litigation.
There is no rule to prevent a GLO from being made against multiple defendants; however, in practice, this rarely occurs.
II. Causes of Action/Remedies
There are three potential causes of actions in product liability cases. Product liability claims may be made under the Consumer Protection Act 1987 ("CPA"), in negligence, or in breach of contract.
A. Consumer Protection Act 1987
The CPA, which implements the Product Liability Directive 85/374/EEC (3) in the UK, imposes liability on the producer of defective products for damage caused by the defect. …