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Forum last updated: May 09, 2008 04:20 PM
May 9, 2008
Asbestos Ruling: Rhode Island is Not Canada
Posted by Carter Wood
Restraint imposed on asbestos litigation today in a welcome ruling by the Rhode Island Supreme Court in Kedy v. A.W. Chesterton Co..
Thirty-nine Canadians filed suit in Rhode Island against U.S. companies licensed to do business there, alleging exposure to asbestos in Canada. The connection to Rhode Island was...well...we should be able to sue there. The issue in this appeal was whether the state would recognize the standard doctrine of forum non conveniens, that is, that the forum is simply not well suited to hear the case because neither the parties, witnesses nor other elements necessary to the trial are in Rhode Island.
Today the court agreed that the case should be dismissed under that doctrine, which it ruled was part of the state's "jurisprudential landscape." The court adopted a two-pronged test that takes into consideration the adequacy of an alternative forum if the case is dismissed in Rhode Island, and a balancing of private and public interests affected by the litigation. The opinion allows a case to be dismissed even if the alternative forum provides fewer remedies or other advantages for the plaintiff, and the court gave less weight to a plaintiff's choice of forum when it is motivated by forum-shopping objectives. A court may also consider the extent to which its own judicial system will be burdened by the inappropriate forum shopping.
The court's opinion is here.
The National Association of Manufacturers has submitted an amicus in the case, which is available here.
The American Tort Reform Association issued a news release praising the decision.
Hello? May I Speak to the Victim of the House?
Posted by Carter Wood
A phone message left on the home answering machine last night, evidence of mass trolling for plaintiffs in what I assume to be Traydol lawsuits. I'll have enough wits about me to press "1" next time to be connected to a screener. Maybe I'll get a diagnosis over the phone!
MTBE Settlement Despite Lack of Causation and Fault
Posted by Michael Krauss
The San Francisco Chronicle reports that all major oil companies except Exxon have agreed to pay $422 million to settle a lawsuit over the gasoline additive MTBE.
Methyl tertiary butyl ether was added to gasoline in the 1990s to make the fuel burn more thoroughly and cut air pollution, in response to government mandates (the only alternative to MTBE is grain-based ethanol, which is much more expensive and, as we know now, is ecologically catastrophic on the international level). MTBE is perfectly safe as long as storage tanks don't leak. But if tanks leak (an event for which gas station owners, not MTBE producers, are responsible) MTBE can seep into ground water and impart to it a noxious taste. Since tank owners are small fry, California governments went after MTBE producers to recover the costs of cleaning up their wells. I have written about this case at length in the Federalist Society's Engage journal.
Under the agreement, the oil companies will pay $422 million up front. They also agree to cover 70 percent of the cleanup costs for any of the plaintiffs' wells that become contaminated with MTBE within the next 30 years.
The companies argued that they shouldn't have to pay cleanup costs because the government had compelled MTBE's use, because no long-term health effects on humans had been proved, and as a result, and because any fault lay with tank owners, not with MTBE producers. The settlement agreement does not address those arguments, and an attorney representing Chevron in the case said the companies still hold those views. Too bad they're now moot.
Drafting doctors for ER duty
Posted by Walter Olson
The spokesman for Florida's plaintiff's bar, president Frank Petosa of the Florida Justice Association, is keen on avoiding you-know-what as a remedy for shortages of emergency room doctors, and doesn't mind suggesting coercive steps instead (via RiskProf): Policymakers should instead focus on real solutions to this problem, even though they may be more politically difficult. These could include addressing reimbursement rates, increasing requirements for doctors to take call as a condition of practice, requiring hospitals to shoulder more responsibility and implementing true medical malpractice insurance reform that requires insurance companies to pass their savings on to Florida's doctors. [emphasis added]
Litigation slush funds, cont'd: $8 million windfall for W.V. law school
Posted by Walter Olson
Charleston Gazette: "West Virginia University's College of Law received the biggest gift in its history on Friday, $8 million of unclaimed money from a settlement of a nationwide class-action lawsuit against H&R Block Inc." It was all very cozy and convenient since the judge presiding over the case had suggested the law school as a beneficiary, and the money seemed to be, you know, just sitting there.
Ted has a very fine article in the new issue of the Federalist Society's Class Action Watch on the dangers of cy pres disposition of unclaimed class action funds, and how they can magnify the unaccountable power of the lawyers and other participants in such cases. Our earlier coverage -- including a case where Vanderbilt's law school got $2.9 million -- is here.
May 8, 2008
Jim Copland at Overlawyered
Posted by Walter Olson
He's guestblogging over there about his new asbestos report.
Mortgage bill $35 million earmark
Posted by Walter Olson
It's for "legal counseling" for borrowers... hmmm. Republicans "raised objections" to the committee-added provision, "which they called a slush fund for trial lawyers to sue lenders." (via Chamber Post).
Colorado's other revenge-initiative war, and the NYT
Posted by Walter Olson
As Carter reported yesterday, trial lawyers in Colorado have apparently reached a truce with some of their critics: a former state treasurer won't try to qualify a ballot measure limiting contingency fees, and CTLA won't try to qualify nine (9!) separate counter-measures which sought to inflict pain on realtors, doctors and other nonlawyer groups. That skirmish having calmed down, however, there remains a ballot war very much in progress between organized labor and some of _its_ critics. Amendment 47 would add Colorado to the ranks of states with a "right to work" law preventing unions from negotiating contracts that require the dismissal of nonmembers. A Better Colorado, the group promoting that initiative, has thus far been backed mostly by CoorsTek, which is related to the large brewing interest. As revenge, a group called Protect Colorado's Future, whose biggest support has come from the politically active Service Employees International Union (SEIU), is pushing two business-bashing ballot measures, one to allow lawsuits over firings without "good cause", and the other to menace company executives with lawsuits if they so much as know about legal infractions at their firms, even if they do not themselves participate.
The New York Times showcased the executive-criminal-liability measure in a lengthy and overall quite flattering April 1 report, but omitted any discussion of the revenge initiative aspects or of the union backing, describing Protect Colorado's Future merely as "a coalition of advocacy groups that supports the initiative".
Tort Reform Efforts Continue in Oklahoma
Posted by Carter Wood
Only to run into another veto threat by Gov. Brad Henry, who supports tort reform as long as it remains in the abstract. From The Journal Record: "OKLAHOMA CITY - Barely before the ink was dry on a significant tort reform bill the Legislature passed Wednesday, Gov. Brad Henry promised to veto the measure. The bill would reinstate certain provisions of a law struck down as unconstitutional in 2006. ...House Bill 2458 would require plaintiffs to obtain an affidavit from an expert when filing a professional malpractice lawsuit - but this time, the bill includes wording designed to avoid a legal pitfall that rendered the previous law unconstitutional." Search here for the bill history and text.
Trial Lawyers, Inc., Responds Deflects
Posted by Carter Wood
The American Association for Justice has issued a news release respondi....well, not responding to the new Manhattan Institute report, "Trial Lawyers, Inc.: Asbestos." More like calling names and changing the subject.
- The scene setter: "Manhattan Institute's latest attack on the civil justice system follows the mold of its previous reports: fictitious, imaginative and laughable." OK, that's a soundbite. Not substantive, but a soundbite.
- An attack on the Institute's Jim Copland, director of the study, for comments taken out of context on Vioxx. Wait, Vioxx? And that's relevant, how?
- A paragraph from an 11-year-old newspaper story about the Manhattan Institute's funding.
Slurs and misdirection. That's part of the business model, isn't it?
In other reaction to the report, Dan Popeo of the Washington Legal Foundation argues in The Examiner that the legal profession must do more to police itself and instill a sense of ethics. ATRA's Sherman "Tiger" Joyce sees more evidence accruing for the need to have Congressional hearings.
Enjoining food and beverage formulations
Posted by Walter Olson
Regulation by litigation marches on: Joseph Silvia of WLF writes about how the misnamed Center for Science in the Public Interest is using Massachusetts' one-sided consumer law, among other legal tools, to strong-arm food and beverage companies into changing their ingredient lists. Most recently, CSPI has been using lawsuit threats to dissuade Anheuser-Busch from introducing beer products incorporating caffeine and ginseng, all with no need to obtain any ruling from the Food and Drug Administration that such products are in fact unlawful. ("Threat of Litigation Masquerades As Regulatory Vehicle", PDF).
May 7, 2008
Trial Lawyers Inc. -- Asbestos
Posted by Walter Olson
The Manhattan Institute's Trial Lawyers Inc. project came out yesterday with its latest, and one of its strongest, reports on the business of mass litigation: Trial Lawyers Inc. -- Asbestos, by my colleague Jim Copland. I've been writing about asbestos litigation for years on this site and elsewhere, and even devoted a chapter to it in my book The Rule of Lawyers, so I figured I'd seen it all. Wrong: this report has all sorts of fresh and arresting material, well organized and clearly written. As Carter notes in his laudatory post at Shop Floor, it makes a particularly good explanatory resource for new readers seeking a first approach to what is almost certainly the most complicated and costly body of injury litigation in history. It also makes a compelling case that our legal system has failed badly to curb the various devices -- from mass screening resulting in medically dubious diagnoses, to mass forum-shopping in search of favorable courts, through group trial and mass settlement of cases -- by which some law firms convoy spurious claims of asbestos injury to victory along with the genuine.
In its first day the report has already made a considerable splash, with the ABA Journal taking note, Jim publishing an op-ed in today's Examiner, ATRA calling for Congressional hearings on the subject, and the Chamber-backed Legal NewsLine and sister publications covering as well. The report, once again, can be found here.
New York Lottery sued
Posted by Walter Olson
According to the would-be class action on behalf of Take Five ticket buyers, those supposed chances of "winning" are inflated by counting a free play as a win. "The lawsuit says merchants who sell the tickets should be held liable since they were in on the fraud." (Thomas Zambito, "A lotto nonsense, says $5M lawsuit", New York Daily News, May 6; Kati Cornell, "You've Gotta Sue To Win", New York Post, May 6; Lottery Post)(cross-posted from Overlawyered).
Smokestacks and autism
Posted by Walter Olson
Orac at Respectful Insolence looks into a study that made for recent alarmist headlines, and finds that it doesn't check out very well.
Backing Down on the Colorado War of Initiatives
Posted by Carter Wood
Political reality prevails in Colorado -- for the moment -- as the Colorado Trial Lawyers Association agrees to pull back nine proposed initiated measures, while a sponsor of a measure limiting contingency fees also drops his ballot plans. "John Sadwith, executive director of the Colorado Trial Lawyer's Association (CTLA) said the decision was made late Tuesday after continuing talks with the group promoting the restrictions on how much lawyers could collect in successful civil actions. From the Denver Business Journal: "We didn't think it was the best interests of working people in the state" to go forward with gathering signatures and putting the measures on the November ballot, Sadwith said. " Alternative explanation: We looked like hubristic jerks, confirming the worst prejudices against trial lawyers. Earlier Point of Law post here. Still leaves more than 100 proposed initiated measures.
UPDATE (1:55 p.m.): More from the Rocky Mountain News, and the CTLA news release is here. The more we think about it, it seems possible that national leaders and Democratic officials could well have put pressure on the Colorado group to withdraw its initiatives. With the Democratic National Convention in Denver, nine intiated measures would have drawn unwanted attention to the cash connection between the plaintiff's bar and presidential candidates. Sure would be an interesting line of inquiry for Colorado reporters.
When contingency arrangements are nonstandard
Posted by Walter Olson
Protecting unsophisticated clients dept.: The Massachusetts high court has asked an advisory panel to consider requiring lawyers to obtain a client's written consent "when a contingent fee agreement contains terms that 'materially departs' from the state's model agreement. The court also wants guidance on whether such agreements could allow a lawyer discharged by the client before the legal matter is resolved to collect more than the fair value of the attorney's services and expenses." (NLJ).
Genetic Information Nondiscrimination Act, cont'd
Posted by Walter Olson
Eric Posner finds the consensus in favor of this bad new law "puzzling". Earlier here.
May 6, 2008
New SEC nominee
Posted by Walter Olson
Troy Paredes has the important Ribstein and Bainbridge endorsements.
Silberblatt v. Morgan Stanley: seeing through class action recovery claims
Posted by Walter Olson
At the Federalist Society's Class Action Watch, Jack Park analyzes (and praises) a judge's ruling cutting attorney fees in a class action suit over precious-metal storage fees. Among other grounds for its action, the court discerned that the plaintiff's expert had manipulated assumptions so as to maximize the apparent value of the class's nonmonetary recovery.
Train in Pain
Posted by Carter Wood
Interesting the sudden flurry of rail liability news coming from the states. First, Florida trial lawyers help kill liability protection for CSX, crashing a proposed Central Florida commuter train. (Think of all the extra miles that commuters will now drive, punishing the environment.) Rep. John Mica (R-FL) still insists the project is a go, while the Lakeland Ledger editorially applauds the resistance to what looked like a sweetheart deal.
In New Hampshire, meanwhile, "CONCORD - A legal cap on railroad damages critical to restoring rail service from Boston through Nashua took an important step forward Monday...The Senate Transportation Committee's support of the rail cap, means the bill could become law later this year if the Senate backs it next week." The bill is HB 1404
And in North Dakota: "BISMARCK, N.D. - About 3,100 Minot residents will share in a $7 million lawsuit settlement with Canadian Pacific Railway stemming from a derailment and chemical spill more than six years ago...[snip] The settlement in the class action case does not include people who filed individual lawsuits against the railroad, or the 228 people who opted out of the class action case to pursue their own lawsuits."
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