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179 15 Of Sheep and Men The majestic, wood-paneled courtroom in Chicago was filled with lawyers and nearly one hundred hemophiliacs and their families from across the nation. It was January 30, 1995, and three judges from the Seventh Circuit Court of Appeals had a momentous decision to make. Would the industry ’s petition to decertify the class action prevail? Or would these hemophiliacs , and thousands more like them, be permitted to sue as a group, against the industry that had poisoned them for decades? Sitting in judgment were Chief Judge Richard Posner and Circuit Judges William Bauer and Ilana Rovner. David Shrager was supposed to present the plaintiffs’ argument, but there was an illness in his family and he could not attend, so another Philadelphia attorney, Dianne Nast, took his place. Douglas Fuson, counsel for Armour, represented the defendants. Among those in the audience was little Roger Holt. Strapped into a special wheelchair that propped his head upright, he barely resembled the nine-year-old Mets fan who had walked into Weinberg’s law office less than two years earlier. Roger was dying of AIDS and had difficulty speaking after being stricken by a mysterious neurological and motor-coordination condition the previous summer. The former first baseman was now suffering from muscle spasms, seizures, and blindness.1 But his mind was still sharp and when he heard something he didn’t like, he moaned loudly. Who had the nerve to hush or remove him? Nobody. BLOOD ON THEIR HANDS 180 Fuson argued that it would be unfair and a waste of court time for the companies to defend themselves in a class action only to be forced to make the same arguments in other cases. He noted that Armour alone was a defendant in 263 individual lawsuits. Judge Posner asked most of the questions and seemed skeptical of the class certification from the start. The companies, he reminded Nast, have won 13 out of 14 cases. They’re doing well. You’re doing badly. You have a chance with a class action to turn the tables on them in a truly dramatic way. For one thing, you have the chance of upping the number of plaintiffs from 300 or 400 or 1,000 to 20,000. I should think they would be concerned that if this class certification is upheld, they will be forced to settle, because their potential liability is so great, even though their chances of winning are probably better than your chances.2 He referred to the viral–inactivation theory as “exotic” and suggested that, while some state courts might support it, others might think it went too far, since the laws on foreseeability varied from state to state. “I don’t think that it is exotic at all,” Nast replied. “I think it’s almost a textbook question on a law school exam of what foreseeability is about.” Judge Posner, a prominent, much-cited expert on the economic impact of legal decisions, also asked her how much money the plaintiffs would seek in damages. Nast said they did not have a specific number but emphasized that “we don’t want to bankrupt these companies. . . . That’s not going to help the class that we represent.” As he listened, Weinberg feared the judge was ignoring the value of the MDL, the Multidistrict Litigation. It was obtaining new information that had never been produced before. But he was especially disturbed by Judge Posner’s concerns related to potential economic impact, since the companies had not raised the issue in their petition. Indeed, they had done the exact opposite: they had filed financial statements with the U.S. Securities and Exchange Commission asserting that the litigation would have no material effect on their businesses. One of the two basic objectives of the nation’s “truth in securities” law is to “prohibit deceit, misrepresentations , and other fraud in the sale of securities,” according to the SEC website.3 So presumably, the companies were truthful in their filings. OF SHEEP AND MEN 181 Then Judge Posner proceeded to stun the courtroom by comparing HIV-infected hemophiliacs to a flock of sheep swept off the deck of a ship, based on a British legal case from 1874. “The law required a certain type of fencing on a ship to separate the animals in order to prevent contagion,” he explained to the courtroom. “And the defendant failed to put in this required fencing, and there was...


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