A University of Georgia law professor has written a page-turning expose making the case that lawyers are enriching themselves at the expense of their clients in high-stakes, bet-the-company products liability cases.

UGA's Fuller E. Callaway Chair of Law Elizabeth Chamblee Burch has published her findings from six years of research in “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.” She backs up that title with a searchable database of 22 years of cases she has reviewed, which she has made available on her book website. “It's not perfect. There are some duplications,” she said of her database. “But it's free.”

Burch said she wrote a general interest book because she realized a lot of people don't read law reviews. And she toned down the legal jargon to try to make the book readable for everyone.

Burch worked on the book with research assistants both at UGA Law, where she has taught since 2011, and at Harvard Law School, where she taught in 2017 as a visiting professor. She's been a tenured professor since 2015. Before she began teaching, she practiced in Atlanta at Holland & Knight, where she worked on complex litigation, including securities class actions. She earned her bachelor's degree from Vanderbilt University and her J.D. from Florida State University.

“By one token, my thesis is quite simple: all is not well in the mass-tort world,” Burch wrote in her introduction. “Using original empirical research, this book exposes a tight-knit network of repeat players and judges who use government power to push and enforce private deals.”

She said she is not taking “cheap shots” at plaintiffs lawyers, who are too often the target of such treatment when people talk about class action and multidistrict litigation. Her book is more of an equal opportunity indictment.

“In the pages that follow, you will see that I am quite critical of the way attorneys on both sides conduct themselves in this ethical minefield. And it just so happens that ethical obligations are more perilous for plaintiffs' lawyers representing the masses, so my fault finding falls most heavily upon them. But let me make one thing clear: my critique is of the system as a whole. Plaintiffs' lawyers do not have a monopoly on systemic failings and misaligned incentives; there is ample blame to go around,” she wrote.

She said plaintiffs attorneys often are forced to accept settlement offers as corporate defendants present them, and she critiques defense attorneys as well.

“In short, this book aims to shed some light on the high-stakes world of mass torts,” Burch said in the introduction. “Tunnel vision toward efficiency undermines more than just a plaintiff's payday. It means fewer jury trials, less transparency, less precedent and more private dispute resolution. … We seem to have forgotten that legitimate procedures are the skeletal structure that hold the meatier substantive rights and values together. When procedures collapse, so too do communal democratic values, the public's faith in the system's legitimacy, and even the rule of law.”

Burch said she reviewed thousands of documents and spoke to attorneys and judges about their MDL experiences.

Only one agreed to go on the record.

That was Lance Cooper of the Cooper Firm in Marietta. Cooper and paralegal Doreen Lundrigan first documented the ignition switch defect that ultimately led GM to recall 30 million cars and pay more than $35 million in fines, as well as fees and untold millions in settlements.

One of those settlements was for $5 million paid to Ken and Beth Melton for the death of their daughter, Brooke. But the Meltons famously gave it back and sued GM again after learning from court documents that company executives knew about the ignition switch defect for years before Brooke's death and didn't fix it. The amount was confidential until GM lawyers disclosed it in court documents.

Cooper and the Meltons fought to keep their case in Cobb County State Court and eventually settled again for another undisclosed amount—at least $6 million, based on statements from GM counsel. The Meltons went on to fund auto safety research. The Georgia Trial Lawyers Association honored the Meltons with a “Courageous Pursuit of Justice” award.

Cooper wound up on the executive committee for the GM MDL in the U.S. District Court for the Southern District of New York before U.S. District Judge Jesse Furman in Manhattan. But he resigned in protest after accusing the lead lawyers of making secret deals with GM to line their own pockets while minimizing their own clients' compensation, as well as stacking up bad cases to qualify for more fees and consideration in the MDL. The other lawyers denied his charges. But Burch paid attention.

Both Brooke Melton's and Lance Cooper's stories lend life to Burch's book.

From the introduction:

“It was her 29th birthday. After ending her shift as a nurse at West Atlanta Pediatrics, Brooke Melton headed out to meet her boyfriend for a celebratory dinner. She was a cautious driver—no speeding tickets, always a seat belt. But as she drove her Chevy Cobalt down the highway, it suddenly cut off. At just before 7:30 p.m. she swerved across the centerline. The oncoming car was unavoidable, it sent her careening into the fast-moving water of Picketts Mill Creek. Twenty minutes later, medics pulled her from the half-submerged Cobalt. And at 10 p.m., the hospital called Brooke's parents and told them about her accident, her broken neck and how doctors could not save her.

“After disbelief gave way to reality, her dad began playing back all the conversations he'd had with Brooke in the weeks before. He remembered how she'd complained that her car sometimes shut off while she was driving it. She had it serviced, fixed, just like he told her to. But as he pored over every detail of her accident and every online discussion board about Cobalts, he found others who'd had the same problems. Brooke was one of many.”

Fast-forward to Chapter 3:

“Plaintiff's attorney Lance Cooper is no stranger to products-liability cases—he litigated a Ford Bronco II rollover back in the 1990s. But he's not among the usual suspects that judges appoint to lead multidistrict proceedings. After his investigation into Brooke Melton's case led GM to double its car recall, however, he started getting calls from lawyers in Louisiana, Mississippi, and California—all wanting him to join their 'team.' 'They're all MDL lawyers,' Cooper said, 'but they know nothing about this litigation.' He eventually agreed to work with Roland Tellis of Baron & Budd and Adam Levitt of DiCello Levitt. Thereafter, Cooper quickly found himself 'sucked up' in the mass-tort world. 'I flew up to the Panel hearings in Illinois,' he explained, and it was 'surreal.' 'All these vendors were there catering to lawyers—claims administrators, document discovery folks, all up there wining and dining everyone.'”

Burch went on to chronicle Cooper's highly publicized exit from the GM MDL. But she also told equally moving stories behind other mass product liability cases, including birth control pills, pelvic mesh, painkillers, talcum powder. She said a disturbing majority of them involved products mainly used by women—and most didn't have lawyers like Cooper.

“It makes me wish everyone who enters the system would have representation like the Meltons did,” Burch said in an interview. “Some have never even spoken to their attorney. They don't know the person whose name is signed on their filings. They only talked to a case manager.”

Burch said some plaintiffs told her their lawyers pressured them to take deals they weren't involved in negotiating.

“One of them told me she felt bullied into signing the settlement agreement. Her lawyer told her if she didn't sign, he would resign from the case and she wouldn't get a red cent,” Burch said in the interview. “You can't do that to people.”

In the book, the professor has done her part to shine a light on the out-of-sight dealing in MDL.

“Lawyers and corporate executives alike respond to economic incentives,” Burch wrote. “Paying plaintiffs' lead lawyers based on client results discourages them from accepting deals with illusory benefits.”

It wouldn't be a bad thing if some claims are exposed as lacking merit, Burch said. That would avoid diluting the compensation fund for those more worthy.

“Sadly, there is almost always a mass tort de jour,” Burch concluded in the book. “But incentives within multidistrict litigation tend to skew toward insiders' self-interest, not the public interest or the plaintiffs' interests. Left unchecked, self-interest can takeover. And there are no checks. There is thus an urgent need to look beyond a singular focus on the lawyers, the defendants, or the judge, and to improve the mass-tort system and its inhabitants as a whole. For a system that serves as the last line of defense for hundreds of thousands of plaintiffs, the status quo is unacceptable. Plaintiffs aren't commodities on an assembly line or inventory in a lawyer's filing cabinet—they're people like us.”