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December 2004 Archives

Vioxx and workers' comp

Compensation claims over Merck's withdrawn painkiller could become a major issue for the workers' comp system, argues Joseph Paduda at Managed Care Matters. The logic: the drug was widely prescribed for muscle pain arising from workplace sprains and injuries; workers' comp law in most states has been "consistently interpreted" to treat as work-related injury the side effects of therapies addressing earlier work injury; and therefore workers may make claims against the workers' comp system over heart attacks, strokes and other cardiovascular events which they attribute to use of the drug (filing such suits would not in general bar them from also suing Merck). If workers' comp payers find themselves on the hook for such claims, they might in turn be entitled to sue Merck for reimbursement, but, writes Paduda, "this will be a long, messy, and expensive process."

Med-mal: certificates of merit

An AP dispatch describes how they're working in Delaware, where trial lawyers agreed to enactment of such a measure on one big condition: the experts they retain to certify malpractice cases' merit would have to remain anonymous, as they also do in Illinois and some other states. KevinMD has a discussion. Interesting incidental fact: Delaware is "one of only three states that do not allow lawyers to question potential jurors." Let's get that number higher than three in the future, please!

"Demonizing for Dollars"

Forbes takes a distinctly critical look at the litigation over MTBE in water supplies (see Overlawyered, Nov. 25, 2003, Jun. 16, 2004) in which litigator Scott Summy of Dallas's Baron & Budd has played a prominent role:

Who pays for the litigation? Ultimately consumers at the pump, say the oil companies. They suggest dipping into the EPA's $2 billion Leaking Underground Storage Tank trust fund, which has been collecting a tenth-of-a-cent tax per gallon of gasoline for years.
Summy objects. "It's unfair to hold the taxpayers responsible for this," he says. He might as well add that such recourse would produce no legal contingency fees.
For Baron & Budd's views, you can check out their own website. (More: Jan. 28)

A number of stories on the Gordon Maag lawsuit (Dec. 24; Dec. 23; OL Dec. 23 and links therein) have mentioned Maag's lawyer, Rex Carr, and his then-record-setting $9 million libel judgment against the Alton Telegraph in the early 1980s. It's worth noting that this case, Green v. Alton Telegraph is an example of the abuses of Madison County.

In 1969, the Alton Telegraph, attempting to verify a story, sent a memo to the Justice Department asking if a local builder, James C. Green, had ties to organized crime. The story never ended up in print.

In 1976, the Justice Department sent the memo to the Federal Home Loan Bank Board, which had underwritten a loan to Green. The Board sent the memo on to a local bank; the bank cut off Green's credit.

Green (and Carr) sued the newspaper over the unpublished memo. A jury awarded $9 million. The newspaper could not appeal unless it posted a $10 million bond, and instead declared bankruptcy, eventually settling for slightly more than its insurance limits. The decisions of the Madison County trial court to let the case proceed on these tenuous circumstances and the judgment stand could not be appealed. Under the new owners, the Alton Telegraph avoided controversial stories. (Lyle Denniston, "Press Watch," Washington Journalism Review, (March 1982), p. 52; Kevin McDermott, "Appeal bonds are focus of hearing", St. Louis Post-Dispatch, Jan. 27; Anthony Lewis, 1983 Colby College Convocation Address.)

Madison County judges appear to be recusing themselves from Maag's case, and the case will likely be heard by an out-of-county judge. (Georgina Gustin, "Madison County court will seek to move Maag suit", St. Louis Post-Dispatch, Dec. 23; Brian Brueggemann, "Outsider requested to hear Maag case", Belleville News-Democrat, Dec. 28.)

And the Madison County Record reports that Judge Maag isn't the only plaintiff Maag. Judge Gordon Maag's son, Thomas, is suing Steve Tomaszewski for trespassing to put campaign signs on his property. Worse, Tomaszewski allegedly issued press releases to newspapers denying that the property was Maag's--so Maag is suing for slander of title, as well. ("Legally blonde", Madison County Record, Dec. 26). The younger Maag (see Overlawyered Oct. 29) is an attorney with the Lakin Law Firm, which Overlawyered has covered Jul. 12, 2003. Lest anyone think the Madison County Record is a lapdog of the tort reform movement, it has also recently published a glowing puff piece about Mr. Carr. (Steve Gonzalez, "Rex Carr: champion of victims", Madison County Record, Dec. 22).

Spitzer and malpractice insurance

In one of his latest projects, reported on here by the ABA Journal, the omnipresent New York AG is investigating companies that insure lawyers against professional liability claims, pursuing theories that they're unfairly refusing to provide malpractice insurance for class-action lawyers. Those same lawyers, of course, figure among the most important constituents for Spitzer's brand of activism, and shame on you for thinking there's anything beyond coincidence in that.

Vioxx and Texas liability reforms

Despite doomsaying talk last year that Texas's landmark liability reform package was so sweeping as to wipe out the prospects for plaintiffs' recovery, Texas Lawyer has confirmed that suits against Merck over its painkiller are being filed in volume in the Lone Star State, though it's true some are being forum-shopped to other jurisdictions considered more favorable.

Vacation, holiday reading

I'll be out of town through New Year's, so I won't be posting the rest of the week. For those interested in more reading, though, you may want to check out these two new entries from our friends at the Washington Legal Foundation:

Gibson Dunn's Ted Olson, former U.S. Solicitor General (who argued Bush v. Gore at the Supreme Court), has a co-authored legal opinion letter on the Kentucky Supreme Court's decision in Sand Hill Energy, Inc. v. Smith, which we discussed here.

Glenn Lammi, who heads WLF's Legal Studies Division, has a co-authored Legal Backgrounder discussing positive guidance from the Michigan Supreme Court on challenges to tort reform laws.

Also, I'd be remiss if I didn't point readers to our own Ted Frank's wonderful post on Overlawyered, "Center for Justice & Democracy's Zany 'Zany Immunity Law Awards.'" Ted picks apart CJD's flimsy document on supposedly outrageous legal immunity laws that was apparently designed to counter the American Tort Reform Association's well-documented "Judicial Hellholes" report. (Judicial Hellholes is 54 pages and has 391 footnotes; Zany Immunity is 15 pages long with 20 footnotes and humorous illustrations. Last year, CJD resorted to the tried-and-true tactic of calling ATRA's report "racist" because the judicial hellholes were in disproportionately minority counties.) It really boggles my mind that CJD thinks it's "zany" to stop baseball fans from suing stadium owners if they're hit by an errant fly ball, or -- get this -- to stop thieves who break into anhydrous ammonia tanks on farms to make methamphetamines from suing the farmer if they're injured in the theft. Read Ted's full posting for a thorough and entertaining analysis.

See you all in the new year!

Finally, I do want to note that I think the entire Maag-Karmeier race shows just why we shouldn't popularly elect our judges. Politics comes into the appointment process too, of course, but it's simply impossible to explain to the general public in political soundbites reversals and remands, the exclusionary rule, the sixth amendment right to confront a witness, or the fourth amendment protections against illegal searches. Ted reminds me that such issues can confound journalists, who we presume to be better informed than the average voter: "A good example of this was the Bork hearings, where Bork was forced to describe basic Fourteenth Amendment jurisprudence, and his neutral descriptions of such things as the 'compelling interest' test made lay journalists think he was a madman."

In addition to the inability to explain legal doctrines in a political campaign, there is real potential for corruption. And such corruption is extremely dangerous: We expect self-interested factions to try to attempt to influence legislators -- hopefully neutralizing each other, as Madison suggests in The Federalist Papers -- but when judges become susceptible to outside influence, and our neutral, impartial arbiters of the law become the arms of interest groups, we threaten the very rule of law itself.

So, what's to be done? Well, David Rottman at the National Center for State Courts has done a lot of interesting research on judicial election and appointment systems, as has Alex Tabarrok of George Mason University and the weblog Marginal Revolution. They'll be here next month for our newest featured discussion, "Elections and Selections." Stay tuned!

More on Maag

My comments yesterday on the Gordon Maag defamation suit have stirred up more commentary over at the Legal Underground, where Evan Schaeffer originally made the posting to which I responded. Interested readers may wish to check it out, since both Ted Frank and I give some new details about the Marcus Jackson case, in addition to more thoughts about the defamation suit.

I do want to say, though, that it just seems to me that Evan and his commenting allies Mike and "1L" (who are in or just out of law school, from what I can tell) are missing the forest for the trees. This is was a very nasty race. As Ted pointed out on overlawyered back in October, both sides were reprimanded by the Illinois State Bar Association for deceptive negative ads.

According to the Brennan Center, Karmeier and his backers spent $2,713,822 on 3,588 television advertisements and Maag and his backers spent $2,576,320 on 3,765 TV ads. Many of those ads were nasty, inflammatory, and lacked full context (see, e.g., here, here, and here). Maag's ad alleging that Karmeier had granted "probation" to a child rapist and molester "[d]espite prosecutors'objections" was particularly deceptive; Karmeier had originally sentenced the criminal to seven years in jail and only reduced the sentence to probation after he was overruled from an appellate court. So Maag's ad insinuates that Karmeier is soft on crime, when in actuality in this case he was reversed on appeal for being too tough on the criminal.

Calif.'s "vexatious-litigant" law

It's unconstitutional, argues veteran San Francisco litigant Burton Wolfe, who's filed more than 40 lawsuits in his home town and, per the Recorder, says he's "settled about 25 for a total of $200,000 or so". The Ninth Circuit is letting his suit go forward.

"People on the [vexatious-litigant] list can be required to get permission from their local presiding judge or post security bonds before filing any more suits. There are several ways to get listed, including the repeated filing of pointless suits. For Wolfe, it was his repeated losses in lawsuits over the employment status of cab drivers." By all accounts, judges don't invoke the vexatious-litigant statute very often; one recent high-profile instance, involving serial disabled-rights complainant Jarek Molski, was discussed Dec. 12 on Overlawyered.

Yesterday, I noted (see also back links there) that Gordon Maag, the sore loser in Illinois's Supreme Court race -- the most expensive judicial race in American history -- has filed suit against the Illinois State Chamber of Commerce and the Coalition for Jobs, Growth, and Prosperity for defamation over allegedly false charges in a political flyer, to the sum of $110 million (who knew a state judicial seat paid so well?). Our editor has more on overlawyered, with lots of links.

Although local newspapers have condemned the suit, Madison County lawyer and blogger Evan Schaeffer finds much to like and agrees with Maag attorney Rex Carr that "the charges are so blatantly false that no one could make them without lying or recklessly ignoring the truth." (The legal standard for libel against a public official is "actual malice," i.e., that you published material you knew was false or in reckless disregard of the truth.) Evan goes on to take up each part of the flyer, point by point, and asserts that each part meets this high threshold. (Read the post in its entirety, including all the comments -- our own Ted Frank has some good observations.) To me, Evan's very analysis -- and its sloppiness and one-sidedness -- gives insight into how trial lawyers think (and goes a long way toward showing why there's no way Maag should be able to win his case).

I've looked up each case alluded to in the flyer myself, and I'll address each in turn below.

Latest airline class action

When customers purchase nonrefundable tickets and then fail to use them, airlines don't usually volunteer to refund them the taxes and airport fees. Reason enough for a class action, according to a Massachusetts attorney (Josh Gerstein, New York Sun, Dec. 17).

The family Palsgraf

An instant mini-classic in the genre of "follow-up journalism", on the subject of the distinctively named family immortalized in the torts textbooks. Nutshell version: they've continued to be an accident-prone bunch, and not lucky in court.

More on Maryland med mal

While on the subject, I took part in a panel discussion of medical liability in the Free State this fall (Sept. 30), sponsored by the Baltimore Lawyers chapter of the Federalist Society. "Well Fed", the weblog of the University of Baltimore Federalist chapter, has a reasonably detailed account of the proceedings. Incidentally, the Well Fed account chides the Maryland Trial Lawyers Association for refusing, in what the blogger terms "an exceptionally childish letter", to send a member to participate in the discussion. Scott Haiber of the Federalist chapter was kind enough to provide me with a copy of this letter (written by Dennis O'Brien, Public Relations Chair, MTLA) and I am amused to report that Mr. O'Brien singles me out in the letter as a reason why the trial lawyers association "cannot, in good conscience, lend legitimacy to this program by offering to participate", citing in particular the title of my recent book. Another addition to my souvenir file!

Maryland med-mal: special session

Last week, we linked to Michael Krauss's paper on the state of medical malpractice liability law in Maryland. On Monday, Maryland Governor Robert Ehrlich signed an executive order calling the Maryland legislature into special session on December 28 to address the issue. Also on Monday, the Maryland Public Policy Institute, which published Michael's paper, held a public forum to discuss the medical malpractice reform proposals currently being discussed in the state; participants included Krauss, University of Illinois law professor David Hyman, and Anirban Basu, chairman and chief executive officer at Sage Policy Group LLC in Baltimore. The panelists generally felt that the proposed solution -- a "stop-loss" fund to help doctors meet spiraling insurance premia -- would not be an effective long-term fix. Krauss asserted that the policy's result would actually be "negative," in that it "subsidize[d] tort liability."

Prop 64: "Let's not buy a landslide"

Last month California voters dealt trial lawyers a stunning defeat by passing Proposition 64 by a 59-41 margin. How'd that happen? Gov. Arnold Schwarzenegger's support for the measure and the favorable stance of many large newspapers undoubtedly helped a lot. But sheer complacency on the part of the measure's opponents also seems to have played a role, to judge by a Nov. 3 Recorder article, "Prop 64 Took Plaintiff Bar by Surprise" (subscriber-only):

"Our attitude was 'Let's not buy a landslide,'" said Bruce Brusavich, former president of the Consumer Attorneys of California. "The thing was doing poorly by everyone's polling -- 41 percent was the strongest we ever got on our own polling. Then, about five days ago, we got concerned. It was trending the wrong way." By then, major media buys were basically sold out, said Brusavich.

According to the same article, it might be premature to assume that the election results have eroded the strong position of the trial-lawyer lobby, Consumer Attorneys of California (CAOC), in the state legislature in Sacramento. Sen. Joe Dunn (see Overlawyered, Jul. 22) has been named Senate Judiciary chair. On the Assembly side, the CAOC ranks are gaining reinforcements:

Those newcomers include Assembly Democrats Noreen Evans, a Santa Rosa City Councilwoman, and Thomas Umberg, a former assemblyman from Orange County. Both are attorneys funded by CAOC and both have been rumored as possible candidates for the Assembly Judiciary Committee chair.
Speaking of suing tort reformers

...the Atlanta legal paper has the latest on that lawsuit claiming that an infomercial made to promote medical liability reform in Georgia inflicted a privacy invasion on a now-deceased patient pictured fleetingly in the video (although it seems the daughter of the incapacitated woman did, in fact, sign a release approving the filming). For more on the case, see "Running tort reform ads? See you in court", Oct. 25.

Lose an election? Sue, of course

Back in November, we covered the Gordon Maag/Lloyd Karmeier Supreme Court election in southern Illinois (see Nov. 5, 4, 3, 2). Maag, the trial-lawyer-backed candidate, not only lost the Supreme Court race but also (in an Illinois first) his retention election to the Court of Appeals.

Now Maag is fighting back in the way he knows how -- he's suing. Maag is seeking $110 million ($10 million in compensatory damages and $100 million in punitive damages) from the Illinois Chamber of Commerce and the Coalition for Jobs, Growth, and Prosperity, along with the latter group's president and treasurer. Maag alleges that an election flyer produced by the two groups was defamatory.

(via Bashman)

Posting doctors' malpractice histories

New Jersey's new practice of posting physicians' payout histories (at njdoctorlist.com) has several distinct advantages for plaintiff's lawyers -- it can help them decide whether to take cases, give them the jump on discovery, and enable them to develop arguments that defendants were on notice of problems -- but also a potentially serious disadvantage: according to the New Jersey Law Journal, scattered reports suggest that doctors are becoming more reluctant to approve settlements now that they can do so only in the public glare.

Silica castle erodes suddenly

At an October deposition a radiologist testified, to the dismay of his plaintiff's-bar sponsors, "that he shouldn't have signed his name to silicosis diagnoses that were subsequently used as the medical basis for each of" 3,617 claims of silicosis. According to defendants, screening companies and attorneys have mass-produced dubious claims of silica lung damage (Sept. 22 and links from there) with the most intense activity found in the Gulf Coast stretch that includes Mobile, Ala. and Pascagoula, Miss., dubbed "the screening hub of the universe". Eddie Curran of the Mobile Register, whose reporting on these issues has been outstanding, has the developing story. PDF documents from MDL litigation in Corpus Christi before U.S. District Judge Janis Graham Jack: motion for summary judgment, exhibit, deposition transcript of George Martindale, MD, judge's order. (Hat tip: Scipio).

Contemporary Ob/Gyn sponsors a roundtable on the med-mal crisis. Yale Medicine professor Dr. Robert Auerbach comments:

The American Trial Lawyers Association (ATLA) has been very effective at perpetrating three myths on the American public. The first is that we're in this insurance crisis because the stock market tumbled. ATLA argues that insurance companies need to increase their premiums because they lost so much in the market. There's a fair amount of data to show that's not true. Insurance companies are regulated on a state-by-state basis, and in virtually every state, insurers can have no more than 10% of their assets in the stock market. In fact, when you look at investment income from insurance companies across the board, it only fell about 1.6%, from about 5.6% to 4%, during the stock market tumble.

The Government Accountability Office (GAO) says that at most, about 7% of our premiums may be attributable to stock market losses. With premiums escalating at 30% per year, that's really a very, very small proportion.

The second myth ATLA has been perpetrating is that insurance companies are price gouging. Quite to the contrary, since 1990, malpractice insurance has not been a profitable business. Even if investment income is considered, this line of insurance has been unprofitable since 2000.

The third myth is that a very small proportion of all physicians are responsible for the majority of claims. That is a sort of statistical magic, because unfortunately, a small proportion of the physicians in high-risk specialties, such as obstetrics and gynecology and neurosurgery, are responsible for a disproportionate number of the claims.

Federalism and liability reform

Eugene Volokh weighs in on the question of whether those who generally back state autonomy against federal dictation are wrong or inconsistent to simultaneously support Congressional liability reform.

Ohio enacts wide-ranging liability reforms

Following strenuous battles, the Ohio legislature this month enacted and sent to Gov. Robert Taft (who plans to sign it) a watered-down but still significant package of liability limits. The legislation:

* Limits noneconomic damages to $350,000 per person and $500,000 per incident except in cases of catastrophic injury;

* Expands the current definition of frivolous lawsuits;

* Curtails punitive damages;

* Enacts a ten-year time limit for many product liability claims, chemicals and drugs excluded, as well as a government standards defense;

* Enacts a seat-belt defense in car-crash cases;

* Protects some companies from successor liability over asbestos products once sold by companies they bought;

* Restricts obesity litigation against restaurants and foodmakers;

(Cincinnati Enquirer (+ editorial); Toledo Blade; legislative guide from Bricker & Eckler law firm).

Earlier (see Aug. 20), Ohio enacted first-in-the-nation legislation requiring asbestos claimants to meet specified medical criteria to qualify for compensation. Although the Ohio Supreme Court in much-criticized opinions threw out two earlier sets of liability reforms, voters have since shifted the balance on the court and the present line-up of judges is thought more likely to uphold the law.

P.S. A Dec. 14 Toledo Blade editorial states: "One glaring shortcoming is that the measure fails to include a British-style 'loser pays' provision, which would dramatically discourage frivolous lawsuits."

Global warming lawyers call in the Inuits

Environmental lawyers intend to file a human rights complaint against the United States in the name of a quasigovernmental organization known as the Inuit Circumpolar Conference, on behalf of the Inuit, or Eskimo, people, whose Arctic lands are affected by global warming. "If the Inuit effort succeeds, it could lead to an eventual stream of litigation, somewhat akin to lawsuits against tobacco companies, legal experts said," according to the New York Times's Andrew Revkin. Among lawyers involved: "EarthJustice, a non-profit San Francisco law firm, and the Center for International Environmental Law, in Washington". See Dec. 3 and links from there. More: Dec. 18, 2005.

Merck's defense costs

The drug company "could pay well over $100 million to outside law firms in 2005 for litigation related to Vioxx", per Legal Times.

Bracelet campaign

It's lime green for medical liability reform.

POTUS conference on legal reform

As noted yesterday, the President held a "Conference on the Economy" that included a major session on lawsuit abuse. The transcript of the lawsuit abuse conference is available here. In addition to strong statements by the President and Commerce Secretary Evans, there are comments from small business owners, the CEO of Home Depot, a doctor and patient, Common Good's Phil Howard, and our own George Priest, who makes an exceptionally compelling case. I'd encourage everyone to read the transcript in its entirety.

Medical courts

In November, Phil Howard of Common Good chimed in here on Point of Law to make the case for specialized medical courts for medical malpractice cases. According to an article in today's National Law Journal, at least four states -- Illinois, Maryland, Massachusetts and Pennsylvania -- are considering such a proposal.

Fen-phen food fight

Intense bickering between plaintiff's firms in the diet drug litigation has shone a spotlight on the various types of firms that trade and sell inventories of cases, including the "advertisers" who may do little more than answer the phone for their high share of a fee (farming out the actual representation immediately to other firms) and the "warehousers" who accumulate cases for batch disposition. The New York Sun's Josh Gerstein quotes Notre Dame law prof Jay Tidmarsh who says the batch handling of settlements needs more scrutiny: ""The ethical rules we have were really developed for one-on-one cases. What we have in this mass tort area are a very different animal," Mr. Tidmarsh said. "It's a significant problem."

New York AG's office

...slips up in a major way in its boring old core function of defending the state in litigation. The result: the state loses its right to present expert testimony and runs into a $42.4 million tort verdict in a case arising from a Thruway accident that catastrophically injured a nine-year-old boy when his mother fell asleep at the wheel and went off the road (lawyers for the family sued on the grounds that a planned guardrail had never been erected). If Spitzer & Co. were a private law firm, would its client have a malpractice claim?

Radio America

My brief interview with Radio America's "Dateline: Washington" will air tonight at 6pm. I discuss the tort reform climate, especially in light of the president's comments today at the White House Conference on the Economy. The broadcast can be accessed here.

Judicial Hellholes

The American Tort Reform Association this morning released its 2004 Judicial Hellholes report, which focuses on the worst magnet court jurisdictions in the country. Madison County, Illinois, again ranks as the worst jurisdiction in the country, with neighboring St. Clair County, Illinois, close behind in second place. (The Center for Legal Policy has studied Madison County in three separate civil justice reports, in September 2001 and July 2002 reports by John Beisner and Jessica Davidson Miller, and in an August 2002 report by our own Lester Brickman.)

In addition to the study's information on the worst jurisdictions in the nation, it contains an in-depth analysis of the outstanding legal reform efforts cleaning up Mississippi, which had been for years among the nation's worst jurisdictions. Those interested in a webcast of the report's release conference, including ATRA president Sherman Joyce and ATRA general counsel Victor Schwartz, can go here.

Bainbridge on Spitzer

Last week Stephen Bainbridge greeted the news of Eliot Spitzer's likely gubernatorial run with this post, which helpfully provides links to his extensive criticism of Spitzer's performance as New York's AG.

Calif. Prop 64 aftermath

One month after Golden State voters approved the measure reining in the state's unique Unfair Competition Law, the big controversy is over whether the proposition's terms apply to cases already filed and in the pipeline. The 17200 Blog provides comprehensive links to coverage of the issue.

Last week Jim Copland recommended Steve Hantler's December 7 WSJ op-ed, "How to Beat the Trial Bar." At the time, the piece was available online only to Journal subscribers. This appears still to be the case. However, it is now accessable, at no charge, via the website of the Legal Reform Project of the Emerging Trends Consulting Group. This site links to a number of other writings, including the work of the aforementioned Mr. Copland. Add it to your web itinerary!

Litigating pensions into oblivion

Sue pension plans enough, and they'll go away: In September IBM agreed to a settlement of up to $1.7 billion in a widely publicized case in which lawyers representing 140,000 workers accusing its plan of discriminating against older workers. That's in no way an isolated case, reports The Deal: "Dozens of corporations are being sued for altering their pension plans, with the potential liabilities running into the hundreds-of-billions of dollars;" shifts from defined-contribution to "cash-balance" plans have been especially controversial. And so what logically happens next? Yep: IBM just announced that new hires won't be entered into pension plans as such at all in the future, but only 401(k) savings plans. Not that 401(k)s are entirely safe from a legal standpoint either, as Delta Air Lines management could tell them.... (all links courtesy Law.com). More: yet another link (from before recent IBM settlement).

Maryland med-mal

A couple weeks back, Walter noted a new study by our own Michael Krauss on medical malpractice liability in North Carolina, issued under the auspices of the John Locke Foundation. Last week, Michael issued another report on the topic, this time focusing on Maryland, for the Maryland Public Policy Institute. The findings were covered in Sunday's Washington Times.

Gladwell on mammography

The New Yorker's Malcolm Gladwell is out with an article on the very imperfect art/science of mammogram-reading. MedRants focuses in on the litigation implications; there's an enormous leeway to second-guess the readings of radiologists and others who read mammograms. For more, see Overlawyered, Jun. 14, 2004 and Oct. 3, 2003.

King/Drew lessons

Horror stories of medical errors have been emerging from a public hospital in south central Los Angeles, the Martin Luther King Jr./Drew Medical Center, and trial lawyer advocate Jamie Court, writing in the L.A. Times, tries to put the blame on the state's MICRA damage limits. Doug Lorenz ("Perspectives on Liberty") slices and dices Court's argument.

Justice Talking

This week on National Public Radio, the show "Justice Talking" will air my debate with Arthur Bryant, the Executive Director of the Trial Lawyers for Public Justice, a trial lawyer-friendly "public interest" law firm (see posting Nov. 15). The debate was wide ranging on the desirability of tort reform, with a special emphasis on medical malpractice issues (a number of doctors were in the audience, which is unsurprising given that Pennsylvania is one of the American Medical Association's "states in crisis").

The program is one hour, condensed from an hour-and-a-half debate. I had no input over editing but any in-context flubs to answers are obviously my own; at the time, I thought I'd done respectably (especially against a seasoned trial lawyer). The program is on today in the New York metropolitan area at 4 pm, on 91.5 FM. For airtimes and stations in other areas, check local listings.

UPDATE: I have been told that New York's WNYE 91.5 FM chose to run a different, older Justice Talking today, rather than the Limiting Lawsuits program with Arthur Bryant and myself. The debate can, however, be accessed online via Windows Media Player here. If you wish to contact WNYE to inquire whether, and when, they are running the "Limiting Lawsuits" program, they can be reached at (718) 250-5800.

The ballot battles continue: trial lawyers and allies in Washington state have gathered enough signatures to qualify a ballot initiative that would (as with recently successful Florida measures) curb peer-review confidentiality and bar doctors from practice after three findings of medical negligence. It would do other things, too, including outlaw confidentiality agreements in settlements, start a supplemental insurance fund, and, so it is said, sanction lawyers who file frivolous lawsuits. Doctors have their own proposal which hasn't qualified yet (via KevinMD).

Gulf War Syndrome: a stacked panel?

A recent report from a Research Advisory Committee on Gulf War Illness, in contrast to many earlier governmental reports, gives credence to the idea that veterans are suffering a distinctive illness caused by environmental exposures during the first Gulf War. But Michael Fumento, scourge of GWS illness theories, isn't impressed (via MedPundit).

There's an interesting article in the December issue of Wired how a number of European communities are reducing traffic accidents and improving traffic flow by counterintuitively reducing what are commonly thought of as safety features -- traffic signs, lane-marking, traffic signals, clearly demarcated sidewalks. The article is unclear whether the reduction in automobile problems is actually the result of design improvements, or simply a function of would-be drivers substituting their traffic problems to more conventional roads to avoid the hassle of an unmarked roundabout. (For example, I usually drive three blocks out of my way to avoid Dupont Circle.) There would also be substitution away from driving in favor of pedestrian activity, though this would be a benefit in the long run. (Tom McNichol, "Roads Gone Wild", Wired, Dec. 2004) (via Marginal Revolution).

So perhaps this is real innovation and improvement, and perhaps not. But there's one factor critical to American implementation that is not mentioned in the article at all: governments could not hope to inexpensively implement such programs in many places without a change in existing law. Right now, a number of jurisdictions, most notably California, permit lawsuits against state highway designers for accidents "caused" by failures in road design. (E.g., Overlawyered, Sep. 30, Mar. 16). In Michigan, in Fiscal Year 1996-97, the Dept. of Transportation paid out over $11 million in judgments and settlements in design lawsuits, and that doesn't count the millions of dollars of employee time wasted in such lawsuits. In such states, any city adopting a non-traditional traffic architecture risks having their decision second-guessed by a jury. While it may be that "making driving seem more dangerous could make it safer," it's certainly the case that "making driving seem more dangerous" makes it seem more dangerous to juries. And if enough places adopt "psychological traffic calming," plaintiffs' lawyers won't hesitate to sue road designers who've adopted or rejected it for failing to do the opposite.

Top legal thinkers

Legal Affairs magazine has an online poll that will be used to select the "Top 20 Legal Thinkers in America." Voters are to choose among 125 nominees based on who they "think are the country's most influential and important legal thinkers�the ones whose ideas are pushing the law forward (or backward, as the case may be)."

Nominees include academic heavyweights like Richard Epstein, Cass Sunstein, and Larry Tribe; the nine Supreme Court justices and intellectual judicial luminaries such as Richard Posner, Frank Easterbrook, and Guido Calabresi; academic-bloggers such as Glenn Reynolds, Eugene Volokh, and Lawrence Solum; and -- among "writers/commentators" -- our own editor, Walter Olson.

(via Volokh Conspiracy)

Conservatives in academia, II

On Wednesday, I linked to Professor Bainbridge's excellent article on bias in hiring on law school faculties. Those interested in the issue may wish to read articles in today's Harvard Crimson and yesterday's Boston Globe on the not-too-friendly reception new Harvard Law School faculty member Jack Goldsmith has received there among his colleagues. Formerly a law professor at the University of Chicago and the University of Virginia, Goldsmith was most recently an assistant attorney general heading the Office of Legal Counsel for the White House and prior to that special counsel to the general counsel of the Defense Department.

Although over 80 percent of the faculty voted to hire Goldsmith, according to standard practice, some of his opponents are now taking issue with his hiring in public. Goldsmith's colleagues have attacked him based on memos emanating from the two government departments where he worked that examined the applicability of international law to detained Al Qaeda members. Goldsmith has denied working on "torture memos," and no evidence has been presented to question his denial.

Whatever one's thoughts about arguments raised in the memos in question, the brouhaha at Harvard gives some insight into the politics at work on law school campuses. For a similar story, see the discussion at the Volokh Conspiracy in May about student demands for the resignation of Boalt Hall (Berkeley) law professor John Yoo, who had coauthored a memo "arguing that the protections of the Geneva Conventions did not apply to captured members of Al Qaeda or the Taliban militia." (May 24, 24(2), 26)

"Extortion applauded"

That's Ramesh Ponnuru's two-word summary of an item by Noam Scheiber of the New Republic, expressing satisfaction over the prospect that "the financial services firms Spitzer has hounded as attorney general [will] get on board and pony up money" to his campaign for governor, both "to buy themselves some much-needed goodwill" and recognizing that Spitzer will be "in a potentially even more powerful position to hurt them as governor".

Internal safety discussions

If you work for a large organization and want to brainstorm with your colleagues about safety risks and how best to prevent them, you may be uncomfortably aware that whatever you write down may be seized on someday by a hostile lawyer and waved about as a supposed "smoking gun" demonstrating awareness of risks. Might this chill safety discussions within organizations? Yes, it very well might. CoyoteBlog has some reflections, based on his experience as a mechanical engineer, on the question. (I wrote about this issue in my chapter on discovery in The Litigation Explosion; the excerpt isn't online, though.)

Howard on litigation and education

As I noted on Nov. 29, Phil Howard's Common Good has set up a new website "Over Ruled" that tracks the burden of litigation and regulation on New York's public schools. Those who missed it should also check out his Dec. 3 editorial on the topic in the New York Times.

Hantler on the trial bar

Steve Hantler, assistant general counsel of DaimlerChrysler, published an op-ed in Tuesday's Wall Street Journal entitled "How to Beat the Trial Bar." ($) Hantler gives corporate legal counsel and other tort reformers many good ideas about how to fight back against the litigation industry. Our readers might also enjoy his characterization of trial lawyers' strategy:

Page One from the [trial lawyer] playbook is research and development. Right now there are several dozen trial-lawyer firms poring over every successful company's government filings, press releases and all their public documents. The purpose: To find the next billion-dollar "mistake."

Page Two is testing this alleged mistake on mock juries and the media. If the story sells, they move to Page Three and bring the issue to government regulators, including state attorneys general, and try to involve them.

Page Four is filing the lawsuit, if possible in one of those magic jurisdictions that the American Tort Reform Association calls "Judicial Hellholes." Page Five is staging a press conference or working with their allies at the network news magazines to generate incendiary coverage about their lawsuits. In Old West parlance, some of these events could be called "necktie parties" -- that is, public hangings. Trial lawyers have even been known to brief financial analysts who cover a company's stock in an effort to drive down share price.

Those interested in some of Mr. Hantler's other writings, in more depth, should check out his two recent contributions to the Manhattan Institute's Civil Justice Forum series, "The Seven Myths of Highly Effective Plaintiffs' Lawyers" and "Toward Greater Judicial Leadership in Asbestos Litigation."

Bainbridge on faculty hiring bias

Professor Bainbridge has a good new article explaining how, in his experience, faculties (particularly law faculties, with which he is obviously familiar) "discriminate" against conservative and libertarian job applicants. Relying on the economic rationale of "network effects," Bainbridge rejects both the conservative charges of intentional bias as well as the typical left-wing rationalizations (e.g., "conservatives are stupid," "liberals are better people"). "The real culprit is the law school hiring process." Interesting read.

Insurers and replacement auto parts

The Eleventh Circuit has just thrown out a class action alleging that insurers improperly engaged in a conspiracy to use inferior aftermarket parts for crash repairs rather than (more expensive) parts from original manufacturers. Martin Grace analyzes the outcome and compares it with the 1999 Illinois case in which State Farm was found liable for aftermarket-part use.

Circling the wagons

John C. Keeeney Jr., president of the D.C. bar, doesn't approve of election-season criticism of powerful plaintiff's tort lawyers or of activist judges: "An attack on lawyers and judges is truly an attack on each of us." But David Giacalone isn't going along.

Spitzer's friends, cont'd

Not to pile on New York AG Eliot Spitzer -- well, okay, maybe a little bit -- but the New York Times is asking why he has chosen to devote his crusading efforts almost entirely to correcting private-sector behavior, and scarcely at all to cleaning up the ethical catastrophe that is New York state government, widely seen as the most dysfunctional in the nation. And Tigerhawk has reprinted (via Bainbridge) excerpts from a scathing letter to the editor published in Business Insurance, from a former insurance executive, Tom Harvey, who charges that after Marsh agreed to hire Spitzer pal Michael Cherkasky as CEO (see Oct. 29), Spitzer altered a key negotiating position in a way favorable to Marsh.

P.R. by Fenton

Fenton Communications, the pre-eminent public relations agency for lefty causes, also has a lot of experience doing p.r. for trial lawyers and their allies. Notably, it's represented breast implant lawyer John O'Quinn and the Environmental Working Group, and its client list has also included Lerach Coughlin, Lieff Cabraser, Public Citizen, and so on. Over the years Fenton has come in for very tough criticism from conservative groups and others; the latest is this profile (PDF) from the Capital Research Center.

Why Spitzer's targets go quietly

Despite much grumbling from business quarters about the New York attorney general's adventurous enforcement initiatives, virtually all his targets elect to settle with him rather than insist on their right to trial. The major exception, former NYSE head Richard Grasso, is an individual as distinct from a publicly traded corporation -- and that distinction is probably no coincidence, according to the reasoning of this piece by Michael Bobelian of the New York Law Journal. More from the same source on the Grasso case, noting that "Spitzer faces significant legal hurdles in showing that the former stock exchange CEO and chairman violated New York's nonprofit laws".

Insurance rate suppression

Baylor professor and finance blogger Jim Garven (Dec. 1) posts on the politics of insurance rate regulation, with particular attention to the factors that can give rise to "rate suppression", which arises when regulators refuse to permit market-clearing rates. Of particular interest is his footnote 3, which reads in part: "The plaintiff�s bar likes rate suppression because this process renders the insurance ratemaking process into a very opaque and largely unintelligible process which makes it all the more difficult for consumers to discern the relative magnitude of the impact that the U.S. civil justice system has upon insurance rates. The reason why consumers� groups prefer low rates should be apparent, but an often overlooked second order effect derives from that fact that many of these groups are funded primarily by plaintiff�s attorney associations (e.g., Ralph Nader�s Public Citizen group is known to receive as much as 3/4 of its funding from plaintiff�s attorneys)."

Olson on obesity

For those who've been following my postings on the CDC's retraction of its flawed obesity study (see Nov. 30, Nov. 24), our editor has an extensive posting today on overlawyered. Included is a summary of prospects for "obesity" lawsuits in the near- and medium-term:

Finally, the Fulton County Daily Report, the Atlanta outpost of the Law.com empire, this summer published a useful discussion of the prospects for obesity litigation ("Trying Fat Suits On for Size", Aug. 3). The chief threat to food companies in the nearer term, as attorney W. Michael Holm (Womble Carlyle) notes, will come from private suits alleging false marketing or product adulteration -- theories which as it happens are often left untouched by state "cheeseburger bills" prohibiting a cause of action over sale of fattening food as such. Nor will the cheeseburger bills necessarily prevent plaintiff's lawyers from laying their hands on internal documents and publicizing them in the worst possible light, posing a significant reputational threat at least to their targets.

Causation issues -- which food or other unhealthy influence caused which disease in which persons? -- would pose a "huge" hurdle to private class actions as well as individual suits, observes Scott A. Farrow, of Troutman Sanders. On the other hand, Holm discerns a "significant threat out there for the food industry" from the potential for state attorneys general eventually to get together and sue on a disgorgement or unjust enrichment theory, which might also (a la tobacco) include a claim to recoup Medicaid and other public health expenditures. And Polly J. Price, a professor at Emory University School of Law, notes that restaurant chains' widespread fear of getting sued if they furnish consumers with inaccurate nutritional information has the presumably unintended consequence of discouraging them from releasing nutritional data at all, since many such chains "can't control every meal that goes out of the kitchen" and thus can't undertake to warrant the exact number of calories, carbs or fat grams that a worker on the spot will incorporate into a sandwich or salad.

Check out the entire posting here.

Kudos for Point of Law

Well, we're being useful to somebody! PointOfLaw.com is honored to have been named the "Best of the Web" in the category Civil Justice Reform by the weekly magazine Business Insurance. Their full write-up had some very kind things to say about our site and our editor:

www.pointoflaw.com is a newcomer among civil justice reform sites, and a welcome one at that. Like www.overlawyered.com, which was recognized as one of the best in its class last year, Pointoflaw.com offers a wealth of information in a Web magazine format. That's hardly surprising, though, given that Walter Olson serves as editor for both sites. Mr. Olson, a senior fellow at the Manhattan Institute, a New York-based think tank, has written several books on tort issues.

Pointoflaw.com offers an almost unimaginable array of information, starting with straightforward postings dealing with broad areas of tort law, such as asbestos, loser pays and product liability. The site also features a discussion of some tort-related topic each month. This can involve experts reviewing other experts' papers or, as was the case before the election a back and forth among supporters of the presidential candidates regarding their positions on tort reform.

The centerpiece is a forum, updated several times a day, containing tort-related news stories and commentary. The participants do an outstanding job of ferreting out stories oriented to civil justice concerns that a risk manager or benefits manager might lack both the time and resources to pursue.

Like any Web site worth its salt, Pointoflaw.com boasts an impressive array of links and access to Web blogs. The value of the blogs varies greatly -- some are more amusing than informative and can leave a first-time visitor with the feeling that he or she is going deeper and deeper into Alice in Wonderland's rabbit hole.

But that's part of the beauty of a first-rate Web site -- a chance to experience the unexpected -- and Pointoflaw.com surely falls into the first-rate category.

-- By Mark A. Hofmann (online, but link for subscribers only via www.businessinsurance.com)

In addition to overlawyered.com, five other websites have been awarded Best of the Web in civil justice reform over the four years in which Business Insurance has run this series. Each is listed on our links page:

American Tort Reform Association
Common Good
Health Coalition on Liability and Access
RAND Institute for Civil Justice
U.S. Chamber of Commerce Institute for Legal Reform

We're proud to be among such company.

Biotech startups

Getting hit hard by securities class actions, per Dechert and the New York Law Journal.

Warming-suit activists cite new study

Reuters: "A study of a 2003 heatwave in Europe may give Pacific islanders and environmentalists new ammunition for legal cases blaming the United States for global warming, advocates said on Thursday." The usual bigger-than-tobacco promises are made, and the usual activists quoted (from Greenpeace and the "Climate Justice Program which advises plaintiffs"). See Dec. 1, Sept. 4, Aug. 18, etc.

"The myth of Vioxx"

Chris Rangel has some thoughts at RangelMD.

Federal vaccine compensation

An L.A. Times story by Myron Levin on the federal vaccine compensation program (with sidebar) uncritically relays assorted gripes by claimants and their lawyers against the program. Among them:

* Despite talk of the vaccine compensation program as a form of no-fault, cases in which causation or damages are disputed may be expensive, protracted and adversarial (true without doubt; but is all the adversarialism really getting into the process from the defense side, as the article implies?);

* The federal government has mostly declined to pay for the category of cases where kids are vaccinated and subsequently fall sick but causation is not established (a potentially big category, no? -- especially given the campaign to blame vaccines for autism. No discussion of this point either);

* Federal officials have tightened guidelines for imputing causation over the years, reflecting what they say is an evolving consensus that vaccines are not causing some injuries it was once thought they might be causing (the article does its best to depict such a position as mean-spirited, while failing to marshal evidence that such an estimate of the scientific consensus is not, in fact, correct).

The sidebar characterizes, as an example of "hard-nosed tactics" by the government, the switch of a key expert witness on DPT (diphtheria-pertussis-tetanus) vaccines from the plaintiff's to the defense side, based on what he said was the evolving state of the science. It's hardly unknown for experts to switch sides from one set of cases to the next, however. The article presents not a particle of evidence that there was anything improper about the evolution of Dr. Manuel Gomez's views -- and indeed, as it concedes, both the vaccine court and a federal appeals court rejected claims of any such impropriety. In light of which, it's remarkable that the L.A. Times would sympathetically relay a charge from a plaintiff's lawyer that Gomez's switch resulted from -- a serious matter -- "witness tampering". (via Peter Nordberg).

Global warming suits conference

This coming March 3 the Fordham Environmental Law Review is hosting a conference entitled "A New Legal Frontier in the Fight Against Global Warming", for which it is soliciting academics to participate as paper-presenters and panelists. The conference "will focus on the ramifications of a toxic tort lawsuit recently filed by 8 states and the City of New York against five large power companies."

CFOs flee Sarbox

Larry Ribstein takes note of a New York Times article on how the tightening web of accounting liability and white-collar law enforcement is driving talented persons away from CFO (chief financial officer) jobs.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.