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January 2006 Archives

Senator Harry Reid (D-ATLA) has announced that he will "oppose the motion to proceed to the asbestos legislation." By virtue of this procedural maneuver, the Senate will need sixty votes to proceed to consider the bill, but press coverage is unclear how fervently the Democrats will seek to obstruct consideration. (Reuters, Jan. 31).

Vioxx legal bill for 2005: $285 million

That's likely just for the lawyers and associated expenses; it probably doesn't cover the cost of lost internal employee time complying with discovery requests and trial attendance. Merck had previously reserved $675 million for legal defense expenses, and has upped the reserve another $295 million, which it expects to cover costs through 2007. There are "9,650 lawsuits, which include approximately 19,100 plaintiff groups alleging personal injuries resulting from the use of VIOXX." Another 3800 plaintiffs have signed tolling agreements, meaning that they've cut a deal with Merck to forego suing in the short term; should Merck start losing Vioxx suits against plaintiffs with marginal cases, these thousands are likely to pile on. There are also 190 putative class action lawsuits, just about all of which are for claims other than personal injuries. Merck has not yet reserved any money for liability. (Merck press release, Jan. 31).

Separately, Peter Lattman reports that even Judge Higbee was willing to throw out a case where a plaintiff blamed Vioxx for his stomachache.

Revamp to U.K. company law

British businesspeople are sounding the alarm about its provisions, which would include a new obligation to look out for the interests of so-called stakeholders (via Stuttaford).

Anger management, via website

In November a painting contractor filed a lawsuit against the Chamber of Commerce in the small San Diego County town of Ramona, along with 24 current and former members of its board of directors. One of the defendants, Jeff Agnew, was "absolutely livid" and decided to erect this website to vent the defendants' side of the story.

Foreign sovereign immunity watch

"The US Supreme Court has allowed a lawsuit against the Vatican Bank to go forward, despite arguments that the suit involved foreign-policy issues that are not within the jurisdiction of American federal courts. ... The suit, first filed in a California court in 1999, alleges that the Vatican Bank and the Franciscan order profited from assets seized by Nazi leaders from Jewish prisoners at concentration camps during World War II." (Catholic World News; Associated Press). More on suits against the Vatican in U.S. courts here, here and here.

USG asbestos settlement

Rumors of a USG asbestos settlement shook the markets last week, as an early Business Week report seemed to indicate that USG was giving up on hope that the Specter-Leahy bill would pass. It turns out that the $4 billion settlement includes a $3 billion contingent note that would be voided if the legislation passes. (Bloomberg, Jan. 30 (via Lattman). USG stock soared on the news, reflecting the difference between the expected value of the settlement and the Business Week report.

Bedfellows: Lerach and the unions

Bill Lerach has given millions to major unions and their law firms; they've repaid the favor by hiring him for lucrative securities class-action work at what is apparently supra-competitive rates. (Daniel Fisher, "Bedfellows", Forbes, Feb. 13 (via Lattman)).

What I don't understand: named-plaintiffs and their attorneys have a fiduciary duty to the class. Why hasn't a single unnamed-class member sued Lerach and the unions for alleged breach of fiduciary duty, especially in light of the Lazar allegations? Perhaps already-approved settlements are protected by the res judicata effect of Rule 23, but there are surely settlements pending approval where Lerach could use a taste of his own medicine and face civil discovery, and that civil discovery might merit some Rule 60 motions in the resolved cases. (And do the Rule 60 time limits apply when the parties were not adverse in the original litigation?) Where's the entrepreneurial spirit of the plaintiffs' bar when it comes to actual consumer protection rather than just shaking down corporations?

Peter Geier at NLJ discusses the "creative" ways plaintiff's counsel are finding to go after the outside lawyers who advised a target company. Lyle Roberts discusses ("Attorneys Beware"). More: and sure enough, here's WSJ columnist Ashby Jones with a trend piece on how, at "a time when companies are struggling to find enough qualified and willing directors to rudder their companies, law firms are scaling back the practice of letting partners serve on their public clients' boards of directors."

Medical liability crisis in Pennsylvania

It's not over with -- not even close -- says Donna Rovito.

Online job applications

New rules applicable to federal contractors, says the ABA Journal eReport, could be a "gold mine for plaintiff's lawyers". See our entry last month.

Wisconsin politics

A W$J editorial says prospective opponents of Gov. Jim Doyle are going to make sure the liability issue stays on the front burner in his re-election bid:

Scott Walker, the Milwaukee County Executive, put tort reform into a hundred-day plan he announced within days of the Governor's vetoes.

Congressman Mark Green, who is also running for the Republican nomination, was equally emphatic. "People in Wisconsin are blue-collar conservatives. They don't believe in the lawsuit lottery. They want to see our manufacturing economy grow. The lead paint decision could spell disaster for Wisconsin." Both candidates noted that the lead paint decision has potential ramifications for anyone who makes things. Its impact is not likely to be limited to the paint industry.

More molehills made into mountains

Thom Lambert refutes the New York Times' latest attempt to create a scandal over the innocuous practice of judicial education seminars and Justice Scalia's decision to keep a pre-existing commitment rather than attend a meaningless swearing-in ceremony that was scheduled barely days in advance.

"Legal Strategy for Vioxx to Test Merck"

In military tactics, "scorched earth" is the term used to describe the act of burning crops to deny the enemy food. According to the Washington Post, it's also an apt term to describe a corporation that, believing it's unjustly accused of acting negligently, has decided to defend itself in court. Other than the blind adoption of the plaintiffs' bar metaphoric characterization of Merck's insistence on defending itself rather than turning over the keys to the company to trial lawyers, the Post has a good article on the challenges facing Merck over the next few months, and the thought-processes behind tactical decisions. (Brooke Masters, Jan. 27).

Meanwhile, in Garza, the plaintiffs surprised nobody by dropping from the case two doctors who were sued as co-defendants, one of whom never even gave the decedent Vioxx. Press coverage acknowledges that the doctors were put through three years of legal trouble only for the forum-shopping purpose of keeping the case in Rio Grande City state court, a judicial hellhole. (Brittney Booth, "Doctors dropped from Vioxx lawsuit", The Monitor, Jan. 27; AP/Newsday, Jan. 26). More on forum-shopping and Vioxx: Oct. 15; Mar. 28; Overlawyered Jul. 11.

And, oh, by the way, Leonel Garza, Sr.? 71 years old, and "had a 28-year history of heart disease, including a heart attack, quadruple bypass surgery and two heart catherizations. Still, he did not heed his doctors� warnings to exercise and quit smoking." And he had stopped taking Vioxx weeks before he died, but the widow has changed her testimony to claim that medical records are wrong, he received a one-month sample of Vioxx, and that the family threw out the physical evidence. (Brittney Booth, "Plaintiff: Merck & Co. brushed off Vioxx perils", The Monitor, Jan. 26).

No "living wage" for hired picketers

The Detroit News comments on a phenomenon previously noted here and here:

It's time to throw out the tired union rhetoric about equal pay and solidarity. Why? Because some union bosses in cities such as Baltimore and Atlanta are hiring homeless people to walk picket lines, but they're not paying them living wages or offering the golden benefits they so proudly promote. Apparently getting the cheapest labor possible isn't such a bad idea after all.

Brennan clerks impressed with Alito...

...and they're critical of the alarmism of the Senate Democrats and N.Y. Times editorials, reports the New York Sun. At RedState, "Leon H." observes that the tactic of "Borking" well-qualified nominees like Alito is damaging to the image of the legal profession as well as the courts, and is likely to provoke distaste from much of the bar, conservative or not. (via Taranto)(cross-posted at Committee for Justice blog).

Robert Rubin on liability reform

Former Treasury Secretary Robert E. Rubin, generally considered the architect of the Clinton economic expansion, in Tuesday's W$J:

Finally, regulation should provide constraints where markets fail to reflect externalities, but those constraints must be based on risk/reward calculations. Thus, effective environmental protection should be recognized as a long-term economic imperative as well as a value in itself, but restraint should be proportionate to the benefits, however difficult measuring those benefits often is. Similarly, further tort reform could strike a better balance between providing the ability to obtain redress and generating costs that impede competitiveness. More generally, our objective should not be to eliminate all risks, but rather to reduce risk to optimal risk/reward levels.

Today's Sarbanes-Oxley reading

Larry Ribstein has a must-read post on "the yawning gap between what the promoters of SOX and corporate crime prosecutions are saying about the results of their efforts, and the reality," another reviewing the evidence of the adverse impact SOX is going to have on the New York City economy as it loses business to more efficiently-regulated capital markets, and a third exploring the "time bomb" SOX creates for businesses as plaintiffs' lawyers learn to be creative and concoct new theories of civil liability over trivial and immaterial actions that could be argued to violate of the law. And, finally, Ribstein rebuts Arthur Levitt's WSJ editorial defending SOX for small businesses: if SOX is so critical to small-business need to attract capital, why not allow businesses to choose whether to opt out?

Save the date: Ribstein, along with Henry Butler, will be presenting a paper on Sarbanes-Oxley at AEI for the AEI Liability Project the morning of March 13. More details as they become available.

An impressive conference on the PSLRA will be held at the US Chamber of Commerce on February 16.

This half-day conference will ask the critical question, who really benefits from securities class action lawsuits? Hosted by the U.S. Chamber Institute for Legal Reform and the National Chamber Foundation, the forum will evaluate the impact of the current securities class action framework on plaintiffs, companies, and other key stakeholders in securities lawsuits, with an eye towards reform.

There's also a live webcast.

NYT Mag: How litigation costs lives

Perhaps no editorial page in the country--and certainly none of remotely comparable influence--is as opposed to reforming America's litigation system as is The New York Times. Would that the editorialists at the Gray Lady read an article that jumped out at me in that paper's Sunday Magazine last weekend. Entitled "Protect or Disinhibit?" the article details how the AIDS drug tenofovir, marketed as Viread, has shown some success as a prophylaxis against HIV in trials with monkeys and has anecdotally gained a following in underground use. Now, "[p]lacebo-controlled trials are enrolling 5,000 people on four continents who are in high-risk groups, including gay and bisexual men, sex workers and injecting drug users."

Sounds great, right? Well, yes, but here's the rub: "In part because the prospect of harming a healthy person raises formidable liability issues for Gilead Sciences, tenofovir's manufacturer, the company says it has no interest in marketing the drug as a prophylaxis, even if trials prove that it works."

Peter Huber in Liability long ago argued that our liability system can cost more lives than it saves. As The New York Times Magazine article notes, the human cost imposed by our liability system can be profound indeed: "Optimistic mathematical models [that do not account for behavioral changes stemming from the presence of a prophylaxis] show that if tenofovir PrEP is effective 90 percent of the time and is used by 90 percent of the people who are at highest risk of becoming infected, it could cut new H.I.V. infections in a community by more than 80 percent in a few years."

Steve Jobs, Disney, Pixar, and Apple

Larry Ribstein on how the Disney-Pixar merger, combined with the breadth of Sarbanes-Oxley, will create all sorts of opportunities for mischievous plaintiffs' attorneys.

"Spitzer's Targets Use His Tactics"

The Eliot Spitzer team's tactics are to use unrelenting media pressure and leaks of discovery to force a settlement, so when they have to try a case from someone willing to risk defending themselves, they run into trouble. The team appears to have run up against a couple of defendants, the NYSE's Richard Grasso and AIG's Hank Greenberg, who wish to conduct civil discovery of their own. (Aaron Lucchetti and Ian McDonald, Wall Street Journal, Jan. 24; Reuters, Jan. 24). It's not clear that the requests—which include seeking a deposition of Spitzer himself—aren't a bit overreaching.

Today's Wall Street Journal has a good—if only partial—overview of the problems facing Merck as it tries to defend itself from the feeding frenzy of Vioxx litigation. The Garza case, which began yesterday, demonstrates the logistical challenge: the trial—with its one-week-on, three-weeks-off calendar in a jurisdiction where a third of the jury pool knew the plaintiff's family—was scheduled only three weeks ago, which required a new trial counsel because of a scheduling conflict with the old one. As many as a dozen cases could be tried simultaneously in 2006, and each trial team must be familiar with seven million documents and tens of thousands of pages of videotaped deposition testimony. Meanwhile, the company is distracted from its mission and numerous executives' careers are ruined by the need to spend months sitting in courtrooms, with the concomitant problem that witnesses get "stale" after repeated use, and a single in-trial or in-deposition mistake by a witness will get used against that witness in all future trials. (Heather Won Tesorio, Jan. 26; AP, Jan. 24). But, as not mentioned in the Wall Street Journal article, Merck has little choice but to defend itself if it is to avoid the problems of Wyeth, which paid billions in phony fen-phen settlements in the mistaken belief that settling cases would end its litigation troubles.

Elsewhere in the Vioxx case, Merck deposed New England Journal of Medicine editors today, who have been placed on the plaintiffs' trial-witness list in the Plunkett retrial. Derek Lowe comments; our earlier coverage: Dec. 8, Dec. 10, Dec. 16, and Jan. 8.

Of late, numerous specialty medical societies have explored the idea of investigating and perhaps sanctioning those among their membership who give unreliable, erroneous or dishonest testimony as hired experts in litigation; some societies have begun to adopt rules toward that end. Peter Nordberg, who frequently espouses viewpoints on issues of expert testimony that are in contrast with ours, argues (in part I of what he promises will be a multi-part series) that although couched as efforts to hold testifiers to ethical standards, these medical society initiatives in fact "represent a real or attempted usurpation of the legal system's legitimately exclusive authority in regulating the presentation of evidence". Moreover, he argues, such efforts "may even be viewed as a form of witness tampering subject to criminal sanction under current law in some jurisdictions" -- or if not, he suggests, than should be made so.

The upshot, if Nordberg's arguments are accepted by those who run the legal system? Officials of groups like the American Academy of Emergency Medicine and American Academy of Neurology might be led off to long prison sentences for their impertinent interference with matters that should be within the domain of legal professionals only. Or maybe we're missing something.

P.S. He's now posted Part II here.

The Colorado Supreme Court has just ruled that lawyers can be sued under the state's consumer protection act.

Richard E. Crowe sued Franklin D. Azar & Associates, claiming that the law firm perpetrates a fraud on the public by using television advertisements that falsely tout its ability to obtain full value for its clients� personal injury claims.

Mr. Crowe contended that he retained the Azar firm to handle his personal injury case based on its boastful advertisements, that the firm did not perform as advertised, and that he was pressured into settling for far less than the full value of his claim. According to Crowe, the firm is a high-volume personal injury practice whose profitability depends on quick settlements of cases with minimal expenditure of effort and resources by the firm. Crowe's complaint included a count alleging that the firm was in violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. ��6-1-101 et seq.

The court rejected Azar's argument that lawyers are exempt from the state consumer protection law.

The bad news is the recognition that this type of practice of law is commerce, not professionalism. The good news is the public statement that lawyers who sell snake oil can be sued for doing so.

Dumbest judicial ethics story ever

ABC News "Nightline" is strongly in contention for that honor with its breathless Brian Ross investigative report revealing that Justice Scalia didn't attend the swearing in of Chief Justice Roberts because ... he had a previously scheduled calendar appointment to give a speech on the separation of powers. Not only that, but it was for the sinister Federalist Society! And at a Colorado resort where one could, and he did, play tennis! It's just shocking!

A general hail of dead cats has descended on ABC from commentators including, among others: Tom Goldstein, SCOTUSblog; Mike Cernovich, and again at more length; Orin Kerr; Sean Sirrine, Objective Justice; Ed Brayton; and Bill Nienhuis. Just for the sake of balance, here are a few blogs that appear to buy into ABC's analysis without question: Michael Froomkin, Shakespeare's Sister, David Sirota.

Don't just blame ABC, though. Blame lawprof Stephen Gillers, who was much relied on by Ross in his report, and who's enjoyed a status in much of the press for years -- a quite inexplicable status, as this episode shows -- as the go-to guy on legal ethics.

As we noted Sept. 8, trial lawyers are livid about a proposal by the National Highway Traffic Safety Administration to make its standard on roof crush strength dispositive in later liability litigation -- thus preventing later lawyers and juries from endlessly second-guessing whether a car roof design meeting the standard at the time of its sale was truly defective or not. Now 26 of the 50 state attorneys general have signed a letter to NHTSA opposing the pre-emption provision. The National Conference of State Legislatures, a reliable opponent of most federal-level steps toward liability reform, doesn't like the idea either. According to the AP coverage:

"State governments and the federal government will have to cover millions of dollars in health care costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of manufacturers," the attorneys general wrote.

Comments reader Peter Eipers: "...responsibility of the drivers, I'm sure he meant to say."

Benjamin Zipursky of Fordham University School of Law writes for Jurist that the Vioxx litigation "serves once again to expose numerous serious shortcomings in our system."

Garza v. Heart Clinic, a Texas state case with an even weaker theory of causation than the first three trials (Jan. 11), starts today in the judicial hellhole of the Rio Grande Valley. (Lynn Brezosky, "Plaintiff paradise waits for Vioxx trial", AP, Jan. 22). However, the court is convening only four days a month, so the retrial of Plunkett v. Merck, which begins February 6 in New Orleans, will probably reach verdict first. Mark Lanier will try his second case starting February 27 in New Jersey before Judge Higbee. (Brenda Sapino Jeffreys, "A New Obstacle for Vioxx Case Attorneys: an Intermittent Trial Schedule", Texas Lawyer, Jan. 23).

Elsewhere in the world of Vioxx litigation, a Missouri state-court class action embarrassed itself when it discovered that the named plaintiff had never actually taken the drug. A new named plaintiff, presumably equally compliant with the attorneys really directing the litigation, was substituted in, and the Eighth Circuit has held that this substitution does not constitute a "commencement" for purposes of the Class Action Fairness Act. (Plubell v. Merck (hat-tip to A.T.)).

Blawg Review #41

This week the traveling carnival, which assembles some of the week's best law-related blog posts, is being hosted by Point of Law's own Jonathan B. Wilson at his eponymous site. Check it out!

AEI panel on asbestos FAIR act

A video of the Jan. 19 event is now available here.

Keeping "B-readers" honest

Speaking of the ethical problems with attorney-driven lung screenings, the WSJ had a (subscriber-only) editorial on the subject yesterday. Relevant excerpt:

a coalition of industry and other groups has began pushing the National Institute for Occupational Safety and Health (Niosh) to start policing its "B-reader" program, which certifies doctors to read X-rays. The federal agency proposed new ethics rules in November, after a federal judge slammed several government-certified doctors who had ginned up sham diagnoses in a silicosis suit. But Niosh needs to go much further to clean up this corrupt corner of American medicine.

Judy Pendell of AEI-Brookings has released an important paper on this subject. The abstract:

Attorney-funded mass medical screenings for asbestos and silica litigation have been shown to have a high rate of false positive diagnoses. It is likely that hundreds of thousands of asbestos and silica lawsuits have been based on unreliable medical evidence. Several analysts have discussed the financial and legal consequences for defendants and the courts. This paper adds to the discussion by focusing on the effects on the workers who are screened. I find that there are numerous breaches in acceptable medical procedures. Harms to workers include: unnecessary anxiety caused by false positive diagnoses, unwarranted x-ray exposures that increase the risk of cancer, and invasive procedures that may have resulted from false positive diagnoses.

The most effective prevention of further abuses by attorney-funded litigation screenings would target the point at which the lawsuits are allowed to move forward in the courts. I recommend that judges carefully scrutinize asbestos and silica claims and dismiss any that are not based on reliable medical evidence; legislatures should establish medical standards for these suits; and medical authorities should investigate attorney-funded screening activities.

The Manhattan Institute earlier this month released a comprehensive report entitled "Albany Inc.: The Special-Interest Conglomerate That Runs New York" (press release), which has received extensive publicity (see listing currently on Institute front page). One section of the report profiles the Empire State's powerful plaintiff's bar, which has played a kingmaker role in the state's politics under Democrats and Republicans alike. "New York has steadfastly avoided tort reform, which no doubt partly reflects the fact that key state legislators are prominently associated with personal-injury law firms�including Assembly Speaker Sheldon Silver and the chairs of both houses' judiciary committees, Assemblywoman Helene Weinstein (D-Brooklyn) and Senator John DeFrancisco (R-Syracuse)."

The idiosyncrasies of New York's liability climate have furnished a steady source of material for my writings over the years, including vicarious car-rental liability, finally overridden last year by an act of the U.S. Congress; New York City's high liability burden; and the predictably dodgy arrangements behind the state's tobacco fees.

New PoL column: Hawaiian tribal claims

On Friday, the U.S. Civil Rights Commission held a hearing on Sen. Daniel Akaka's bill (see Aug. 17) to create a newly recognized federal tribal entity to represent ethnically native Hawaiians. Commission member Abigail Thernstrom, a Manhattan Institute fellow, expressed skepticism over the measure, saying she was "very unhappy about what I regard as proposals for race-based governments. This is not the way I want this country to go, and I would like to see some acknowledgement that the story of governance of Indian tribes in this country has not worked out well," Thernstrom said.

One of the witnesses speaking before the commission on Friday was University of San Diego law professor Gail Heriot, who has (OL Sept. 1 and links from there) been among the most outspoken critics of the Akaka bill. In the newest installment in our Point of Law column feature, Prof. Heriot argues that the bill is a dangerous end run around Supreme Court decisions which endanger the "ethnic spoils system" that has prevailed in Hawaiian politics. "By retroactively creating an Indian tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, the Akaka bill will be breaking new ground." Other groups could pick up on the precedent, subjecting the U.S. to yet further ethnic balkanization.

Welding rod shenanigans

Golly gee whiz, some lawyers are saying, we never thought our own clients would be fibbing in their claims. The Washington Examiner isn't buying that excuse, though. More: Jan. 9 and links from there.

Last-ditch effort to stop Alito

Mike at the Crime and Federalism blog has a deft refutation of the latest and lamest Senator Kennedy effort to derail the Alito nomination.

Wisconsin liability trip

The Litigation Lobby's big victories recently in America's Dairyland are the subject of a WSJ/OpinionJournal op-ed. On the Wisconsin Supreme Court's by-now-notorious lead paint ruling, Maureen Martin of the Heartland Institute writes:

as if it could get any worse, nothing in the ruling limits the "risk contribution" theory to lead pigment. It could, arguably, apply to any product. So it was no surprise when a Chicago plaintiffs' firm recently filed a case against 13 Wisconsin companies alleging that a client died from asbestos exposure, but not necessarily from asbestos manufactured by any of the 13 named defendants.

Former chief FTC economist Jeremy Bulow, who's done some of the most incisive analysis of the Great Tobacco Robbery of 1998, has a new working paper out (PDF) spelling out many of the deal's ongoing consequences. One tidbit, concerning the benevolent cartelizing influence of the National Association of Attorneys General:

The owners of the largest grandfathered SPMs [subsequent participating manufacturers, small cigarette producers that joined after the deal was struck] have all become extremely wealthy courtesy of NAAG --- in addition to the owner of Medallion, the owners of Commonwealth and Santa Fe sold out for over a billion dollars between them.

Marking the 25th anniversary of Ronald Reagan�s first inauguration, the Wall Street Journal is opining on the last two and one-half decades of Reaganomics: the view that lower tax rates and reduced governmental regulation of business prompt greater investment, more jobs, higher productivity and a concomitant improvement in public welfare.

Kirkendall on Seymour Lazar

Tom Kirkendall is skeptical of the Milberg Weiss investigation, but concludes "it's with more than a touch of irony that Mr. Lerach is now the target of an investigation that is strikingly similar to the prosecution of agency costs that Mr. Lerach and his new firm are wildly profiting from in connection with the Enron class action securities fraud case."

Sarbox compliance

Brian Doherty at Reason interviews four business people. Sarbanes-Oxley compliance consultant Stephen Stanton:

One thing that defies common sense is that the law requires controls to be documented, so anytime you change your process you have to go back in time to readjust your reporting. Anytime you change the way you do business, install new software, start a new line of business, you need those changes documented. So all of a sudden change is the enemy; creative destruction is a bad thing. We actively encourage clients: Don't change your system; don't upgrade anything; don't change anything for the last three months of the year.

So it really stifles innovation, stifles growth.

Alito and LePage's II

Thom Lambert discusses Senator Dewine's questioning of Judge Alito on the LePage's case. We discussed Alito's vote in the case Oct. 31.

Elsewhere in Supreme Court antitrust news, Josh Wright, Christine Hurt, Mike Hofman, and Ron Davis discuss the Court's review of the abysmal Ninth Circuit decision in Texaco v. Dagher, which essentially held joint ventures per se illegal; oral argument was heard January 10, and SCOTUSblog gave their standard preview. The Chamber of Commerce and NAM filed an amicus brief. Ninth Circuit watchers won't be surprised that Judge Reinhardt wrote the majority 2-1 decision.

Legislative history

Mickey Kaus gives reason #373 why Scalia and Easterbrook are right about the need to disregard "legislative history" in statutory interpretation:

I wrote some Congressional legislative history once myself once, and my goal was to bury the most tendentious and partisan interpretations deep within unbroken paragraphs of tedious boilerplate, where nobody would find them except our allies in the "public interest" bar.

"I look at patients differently now"

The experience of one doctor sued by a nursing home patient (Medical Economics, via KevinMD).

Sometimes the arguments advanced to defend the class action industry of Madison County, Ill., are just as interesting as the points advanced by critics of that industry. Last year the St. Louis Post-Dispatch reported on controversy over a legislative proposal in Springfield to tighten rules on where suits could be filed, thus curbing "venue shopping". But the venue-reform proposal drew sharp criticism from Sen. William R. Haine, D-Alton: "I'm not going to be in favor of any bill which limits the ability of a citizen to seek a remedy in an Illinois court". Later in the article, we get a glimpse of the other hat Sen. Haine wears when not acting as a legislator:

Haine works for the East Alton law firm of Simmons Cooper, which has collected several billion dollars in asbestos settlements in recent years in Madison County Circuit Court. He said he did not believe venue shopping had been a problem for his home county.

"These civil suits have created a windfall for Madison County taxpayers," he said. "The county's used the proceeds to add a new courts building, build a new county (health department) facility in Wood River and to pay down debt. So as far as cases clogging the courts, 'clogging' is in the eye of the beholder."

Tom Kirkendall has a wrap-up.

The "Little Guy" and civil justice reform

A fictional dialogue by Evan Schaeffer repeats the common trope that the "little guy," a Joe Sixpack, is who is hurt by tort reform most. It's actually a fairly insulting What's-the-Matter-with-Kansas-style claim that Joe Sixpack (who's likely in the 80%+ in polls who support tort reform) is too stupid to recognize what policies are really good for him. But Joe Sixpack is smarter than Schaeffer's characters give him credit for—which is why it takes millions of dollars of trial lawyer money in elections in three branches of government to override the popular will in this area.

Those millions of dollars by themselves put the lie to the claim that civil justice reform will hurt the little guy the most; it's clear that the main beneficiaries of the status quo are the members of the litigation lobby.

And it's Joe Sixpack who stands to gain the most from civil justice reform in terms of lower prices and greater economic opportunity. Those born wealthy or who have fungible skills beyond rent-seeking in a particular jurisdiction are better situated to avoid the problems created by an economy made sclerotic by the predations of trial lawyers. An unskilled or manufacturing worker who's one of the tens of thousands of people who lost his or her job because of abusive asbestos litigation is probably not so well-situated.

Who is going to represent the little guy? Certainly not the trial lawyers, who represent themselves first, and then the little guy only when a particular little guy is a means to that end. If the little guy is a small business fighting off extortionate slip-and-fall or employment litigation where winning costs more than settling for the plaintiff's demand, it's not the trial lawyers who are on the side of the loser-pays reform that will make the difference between staying in business and not. If the little guy is someone who would be better off or happier with a sub-prime mortgage or a morning-sickness cure, it's the trial lawyers fighting to keep these options from the little guy.

From the Wall St. Journal (subscription required), an interesting piece on students' claim that they wouldn't have stolen music had a server not made the theft possible. Is this like arguing that highway robbery would not have occured had the highway not been built, or is some other analogy appropriate (such as, this highway was only meant for robbery and for no other purpose)? I think cases like this one raise the most important questions about individual responsibility and about created temptations. The latter are everywhere -- but is it tortious to create them?

Will the FAIR Act Fix the Asbestos Mess?

The AEI Liability Project is sponsoring a panel Thursday afternoon on S. 852, The Fairness in Asbestos Injury Recovery (FAIR) Act. I will be moderating a panel featuring Professor Lester Brickman, the leading academic on asbestos litigation; Patrick Hanlon of Goodwin Proctor, a prominent supporter of the bill; and AEI's Kevin Hassett, who co-wrote a report for the Coalition for Asbestos Reform opposing the bill (Nov. 25).

NY Times mag on "living wage" laws

The Times magazine in a cover story this weekend did its best to promote this supposedly progressive set of proposals, even going so far as to run a series of pictures of low-paid workers who tell of their dreams of "what they'll do with" the new money their employers will be legally obligated to pay them. Cafe Hayek has a series of posts in response (first, second, third) which may serve as a much-needed corrective. More: Julian Sanchez, Reason "Hit and Run".

Parade of new blogs

Lawprof William Childs (Western New England School of Law) has begun TortsProf, an entry in the Law Professor Blogs Network. A group of law, business and economics scholars who previously made a splash guestblogging at Larry Ribstein's have launched Truth on the Market; their number include Bill Sjostrom, Geoffrey Manne, Josh Wright, Keith Sharfman and Thom Lambert. And as Ted notes at Overlawyered, critics of trial lawyers in the Lone Star State have come up with the fact-filled and heavily illustrated Texas Shark Watch, which focuses in particular on efforts by prominent plaintiff's attorneys to acquire influence within the Republican Party.

1Ls and 2Ls

Common Good has a summer '06 fellowship program for you, application deadline Mar. 31.

More on Alito and judging as judging

Larry Ribstein in Forbes and Jonathan Adler in the Wall Street Journal discuss the appropriate role of the judiciary in the context of Democratic questioning and press coverage of Judge Alito. I also wrote about this Jan. 6.

Bainbridge, vindicated

Professor Bainbridge, who departed from a lot of conservatives in supporting the Gang of 14 filibuster compromise and bucked the GOP party hierarchy in being a powerful opponent of the Harriet Miers nomination, now feels vindicated. As he notes, it's still too soon to tell for sure how this political drama will all play out -- even though Sam Alito seems almost certain to be confirmed, the real battle royale will come when a replacement for Justice Stevens, the presumptive fifth vote to uphold Roe, is named. Stevens turns 86 this April; whether his replacement will be named by GWB or his successor is anyone's guess.

If you've been reading Point of Law and Overlawyered, the January 15 USA Today front-pager on post-Katrina litigation doesn't tell you much you don't already know, and, worse, tells things almost exclusively from the plaintiffs' side without distinguishing between the reasonable and unreasonable lawsuits. But one new entertaining tidbit is how quick the Louisiana Trial Lawyers Association is to abandon typical plaintiffs-bar rhetoric about the critical importance of the jury system when that system is an obstacle to a payday. It remains to be seen whether the post-Katrina demographics of a New Orleans where over half of the population has left (and those who have returned are generally wealthier than those who left) will continue to be such an unfriendly litigation environment for business.

Heather Mac Donald on legal clinics

City Journal has a longer version of Heather Mac Donald's earlier Wall Street Journal op-ed; the length does not detract from its excellence.

Milberg Weiss probe, cont'd

A problem for prosecutors: 78-year-old entertainment attorney Seymour Lazar, who's at the center of the investigation as the one alleged to have taken referral payments from the giant class-action firm, is so seriously ill that he may have little to fear from continued refusal to cooperate. A judge has released Lazar from house arrest. Josh Gerstein at the New York Sun has details. P.S. here's more on the challenges facing prosecutors, from Justin Scheck at The Recorder/Law.com.

Specialized courts

Atlanta's Fulton County has launched one to handle business disputes. Christine Hurt wonders (as have we) why the idea of specialized subject-matter courts has taken so long to catch on.

A task force of the New York State bar is going to look into the problem of prosecutors' increasing willingness to arm-twist defendants into giving up the privilege. For earlier coverage, see Mar. 17, Apr. 13, and Jul. 6 of last year, etc.

Reaffirming the general deference paid to state sovereign immunity, and following in the footsteps of its 1989 decision in DeShaney v. Winnebago County, the Supreme Court this June in Castle Rock v. Gonzales declined to create a constitutional right to sue a Colorado town for damages for its failure to enforce a restraining order against an estranged husband who wound up murdering a couple's children. The ACLU, which saw its arguments rejected in the 7-2 decision, isn't taking it quietly. On Dec. 27 its Women's Rights Project filed a petition with the Inter-American Commission on Human Rights (IACHR) claiming that the police department violated international law by not responding properly to Gonzales's requests for help. (New Standard; CBS 4 Denver; ACLU release). The panel, it argues, should order Ms. Gonzales monetarily compensated and should promulgate standards on handling of domestic violence cases intended to bind law enforcement agencies around the U.S.

Conservative commentators have been warning that the proliferation of international human rights law might some day pose a threat to our national sovereignty and right to govern ourselves according to our own Constitution. If the ACLU wishes to fan these fears and hasten the emergence of a critique of this novel sector of law, it should go right ahead and keep pressing cases like this one.

Kennedy vs. freedom of association

Via Taranto, here's TigerHawk posing a pertinent question regarding Sen. Kennedy's demand that the Senate subpoena the private papers of former National Review publisher William Rusher, a founder of Concerned Alumni of Princeton, in search of dirt about Alito's possible ties to the conservative group (details: S.F. Chronicle, Daily Princetonian):

Senator Kennedy took the scary position that it was just and appropriate for the Congress to extract by coercion the private, internal records of a political advocacy group just because it was considering the nomination of a person who had once been a member of that organization.To understand how weird this is, consider the following "thought experiment": If the next Democratic SCOTUS nominee once belonged to the American Civil Liberties Union (as Ruth Bader Ginsburg actually did) and, say, Sam Brownback proposed issuing a subpoena for the "records" of the ACLU to help him "understand" the nominee's testimony, what do you imagine the reaction of the mainstream media might be? The implications of Senator Kennedy's demand for freedom of speech and association are appalling. Where's the outrage?

(cross-posted from Committee for Justice blog)

Enron: Lay, Skillings go to trial

Roger Parloff at Fortune (via Kirkendall) handicaps the forthcoming proceedings. His conclusion: "the trials' outcomes are very much in play". P.S. The recent plea agreement of an Enron accountant drew comment from Prof. Bainbridge here and from Tom Kirkendall here and here.

"'Pick me' urgency"

That would be the emotion communicated by plaintiff's counsel angling for position and fees in a securities class action. A Delaware federal judge, ruling last month in a case involving the Molson Coors brewing company, made some pungent observations on the way to helping decide "which of the plaintiffs' law firms will win the money race." Lyle Roberts has details at 10b-5 Daily. Notes Roberts: "The judge concludes that PSLRA's lead plaintiff provisions may be ineffective because 'lawyers are still very much in the driver's seat.'" PSLRA Nugget and Securities Litigation Watch also comment. And the Denver Post covers the story (also via Roberts).

Concerned Alumni of Princeton

WaPo: "The records [of the Concerned Alumni of Princeton] are in the Library of Congress in the private papers of William Rusher, a former publisher of the National Review magazine. Rusher allowed the New York Times to review the records last year, and the newspaper found no evidence that Alito was active in the organization or was a major donor to it."

Nevertheless, Senator Ted Kennedy feels free to smear Judge Alito as a "closet bigot" because he supported CAP's support for Princeton ROTC—even though twenty years of public service shows no evidence of bigotry.

During the presidential election, when the Swift Boat Veterans for Truth implied that John Kerry lied about his war record, the two leading members of the Republican Party, George Bush and John McCain, disclaimed the argument, Bush even forcing out an outside counsel who happened to also do work for the Swift group. The analogy isn't perfect, though the major difference is unfavorable to Democrats: SBVFT was an independent 527 group, while Kennedy is a party leader. Still, is there a single Democrat who will come forward to condemn this appalling McCarthyesque smear on an innocent and honorable man?

Jonah Goldberg (via Betsy Newmark) is also critical of Kennedy's disregard for the truth.

AG hijinks, reported on by Forbes Sept. 19 ("Muzzling the pit bulls") but slipping between the cracks with us at the time:

In suing drugmakers Schering-Plough, Abbott Laboratories, Pharmacia and others, charging they defrauded state Medicaid, the attorney general of Ohio, James Petro, turned to a hired gun: Stanley Chesley, one of the fiercest plaintiff lawyers in the state.

Chesley agreed to forgo any legal fees from the state for a shot at a huge payoff if he wins the case--up to a 19% cut of any award or settlement. He is a political kingmaker in the state and is close to Petro in particular: Early this year Chesley hosted a fundraiser at his home for Petro, who is running for governor.

Cozy ties between state attorneys general and hungry tort lawyers have grown like hothouse mushrooms...Most of the 20 states pursuing Medicaid fraud cases against Big Pharma have hired contingency-fee lawyers to do it for them.

...Delaware Attorney General M. Jane Brady says contingency-fee lawyers continually pitch her dubious suits. "I have been solicited many times, mostly related to product liability theories like thimerosal, the mercury in vaccines," Brady says.

Alito and the dark side

Prof. Bainbridge reflects on the Alito peril, as seen by Democratic senators:

After catching up on the first day of the Alito hearings, one conclusion seems inescapable; namely, that Alito is more machine now than man; twisted and evil. He yearns to take liberals, women, minorities, gays, small children, and puppies to the Dune Sea, and cast them into the pit of Carkoon, the nesting place of the all-powerful Sarlaac, in whose belly they will find a new definition of pain and suffering as they are slowly digested over a thousand years. (Or maybe it's the slavering maw of Cthulhu the Great. I zoned out for awhile during Durbin's opening remarks.)

Everything is proceeding as I have foreseen. Schumer and Leahy's feeble skills are no match for the power of the Dark Side....

(cross-posted from Committee for Justice blog).

Politically one-sided legal clinics

Heather Mac Donald has an excellent op-ed on the subject in today's Wall Street Journal, and it's even public. Larry Ribstein and William Henderson comment.

The next Vioxx case: Garza v. Heart Clinic

71-year-old Leonel Garza, Sr., had had cardiovascular disease for 23 years, as well as a previous heart attack, when he died of a fatal heart attack. His autopsy noted severe atherosclerotic disease in all of his coronary arteries. Nevertheless, his survivors wish to blame his death on the one-week supply of Vioxx he took for arm pain the month before his death. The case will go to trial January 24, 2006, in the 229th Judicial District Court of Starr County, Texas.

The Plunkett v. Merck trial will be retried starting February 6 in New Orleans. The first trial resulted in a hung jury and mistrial.

"Top Ten Legal Ethics Stories of 2005"

John Steele of Legal Ethics Forum has done up a list, and we even helped a little.

New PoL column: "Shredding common sense"

We've just posted a contribution by Pittsburgh Tribune-Review columnist Ralph Reiland, who reflects on two of last year's most curious news items on the subject of blame-shifting: 1) a NYC jury's determination that the Port Authority was more responsible for the 1993 bombing of the World Trade Center than the terrorists themselves; and 2) the large settlement won by a multiple offender in England who reportedly fell through a skylight while paying an uninvited visit to the top of a warehouse building. For more information on the two cases, see Overlawyered here and here, respectively.

Being an ethical expert witness

Louise Andrew has some advice.

"Ingredient liability" suits
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A series of Minnesota and Oklahoma law suits against manufacturers of the ingredients used by criminals to create methamphetamines is progressing apace. In what may be the newest pain for the drug industry, plaintiffs' lawyers are claiming that the likes of Pfizer "knew" that a certain percentage of their decongestants would be illegally transformed into crystal meth. Therefore, of course, Pfizer should be liable for this huge drug problem.

This from the same people who have on similar grounds decided that gun makers should be liable for the crime problem and food makers for our obesity. Car makers should be liable for DUI accidents under the same rationale -- I guess the plaintiff's bar hasn't thought of that one yet.

I have written about this extensively -- it is a massive effort to divorce tort law from personal responsibility and proximate causation requirements. We must relentlessly resist this degradation of tort law.

Without any legitimate means to attack Alito, the early indications are that the Democrats are going to try to hang the hat of "appearance of impropriety" on Alito over his vote in a Vanguard case (Nov. 6; Nov. 11). (Senator Feingold had the gall to compare it to recent indictments and guilty pleas of elected officials, though I'm not sure what Jack Abramoff was ever elected to.) Professor Ronald Rotunda (via Bainbridge) deftly disposes of the "controversy":

The judge�s ownership of shares in a mutual fund (e.g., the Vanguard Index Fund) is not an ownership interest in the Vanguard Company itself anymore than my ownership of a saving account makes me an equity owner of the Saving Bank.

In other words, the ethics rules make clear that a �depositor in a mutual savings association, or a similar proprietary interest [e.g., Vanguard], is a �financial interest� in the organization only if the outcome of the proceeding could substantially affect the value of the interest.� Judge Alito�s decision in a case that a pro se litigant filed and lost at every level, was not a case where the outcome of the proceeding could �substantially affect� the value of his Vanguard mutual funds. Indeed, the judge simply had no financial stake in this case. ...

In the case in question, after the pro se litigant lost her case, she asked Judge Alito to recuse himself. The pro se litigant alleged that Judge Alito had a financial interest in a party; that he owned shares in a party; and even that he was a party himself! All those allegations were false, but he promptly recused himself anyway because it was his personal practice to recuse himself when a party raised an issue and �any possible question might arise.� The case was sent to a new panel and it came out the same way.

So far, in the first day of hearings, we see several Alito-opponent misrepresentations that could have been avoided by regular perusal of Point of Law: Senators Schumer and Feinstein argue that Alito held that Congress could not regulate machine guns (false); Senator Durbin raises the one-man/one-vote bogeyman (refuted); Senator Feinstein raises the Alito voting record on discrimination (refuted).

The left-wing activist group ACORN is working to place initiatives on state ballots this fall to raise the minimum wage. Bruce Bartlett points out an irony:

ACORN's involvement in this campaign is amusing because a few years ago the group sued the state of California in order to be exempted from its minimum wage requirement, which was higher than the federal government's. In its appellate brief, ACORN acknowledged that the more it had to pay each worker, the fewer such workers it would be able to hire. Of course, the same thing is true for businesses, as well -- something minimum wage advocates refuse to admit.

(via David Hogberg, Capital Research Center "GreenWatch" blog).

Forbes on welding rod litigation

"Once touted as the next asbestos, a mass tort involving welding rods is starting to look like a textbook case in the manufacturing of an epidemic." Mary Ellen Egan at Forbes has more on the litigation in which plaintiff's attorneys Dickie Scruggs and John (Don) Barrett, backed by Milwaukee physician Paul Nausieda, charge that manganese in welding fumes causes Parkinson's or other neurological impairments (see here, here and here).

Wisconsin governor vetoes more reforms

Governor Jim Doyle vetoed four civil justice reform proposals, including measures overturning the Wisconsin Supreme Court's politicized lead-paint decision (Nov. 23, Aug. 11, OL Jul. 23), a measure moving Wisconsin's lenient expert-evidence standards to Daubert, immunity for firearms manufacturers, and a product-liability reform bill. (Ben Fischer, "Governor vetoes bills on liability", Wisconsin State Journal, Jan. 6) (via Bashman). The governor had earlier vetoed medical malpractice reform. More on Wisconsin: Jan. 4 and links therein.

Wash. Post on Merck and the NEJM

Excellent editorial from the Washington Post about the New England Journal of Medicine's widely publicized retraction of a 2000 article on Vioxx (see here, here and here). The Post says the new development does not

alter our view that the courts are the wrong place to resolve disputes about drug safety. The New England Journal of Medicine's retraction is expected to have an enormous impact on the thousands of lawsuits against Merck. But it is still not clear that doctors prescribing Vioxx several years ago would have behaved any differently had the journal article showed that the risk of heart problems was very slightly higher. Scientific judgments about the risks and advantages of drugs are not black and white -- which is why they are best made by scientists and by the regulatory agency that employs them, not by jurors through the lens of hindsight.

(via our sister website Medical Progress Today, which comments).

Rough justice, indeed, for Wal-Mart

Former EEOC general counsel Eric Dreiband (now with Akin Gump), on the sex discrimination case of Dukes v. Wal-Mart, in today's W$J:

The Civil Rights Act of 1991 permits each victim of unlawful discrimination to recover damages of up to $300,000. The plaintiffs seek punitive damages of between $450 and $510 billion (1.5 to 1.7 million women times $300,000). In order to shoehorn the case into a class action, their lawyers argue that money is "incidental" and "secondary." In other words, the Dukes plaintiffs seek, literally, a half a trillion dollars in punitive damages alone while their lawyers contend that money is something of an afterthought.

The Civil Rights Act also authorizes compensatory damages for victims of unlawful discrimination. The plaintiffs in Dukes decided not to seek compensatory damages: To do so would render the case inappropriate as a class action because compensatory damage awards depend upon injuries suffered by individuals, not classes of individuals. Any actual victim of sex discrimination by Wal-Mart will lose her claim to compensatory damages unless she hires a lawyer to file papers in the San Francisco court and "opts out" of the case....

This kind of "rough justice," under which any real victim loses her right to bring her own case for real justice while the lawyers become wealthy and move on to their next class action, makes a mockery of the civil rights laws.

"Merit-Based Judging"

Senator John Cornyn has an excellent piece in NRO decrying the media tendency to view judicial decision-making as results-oriented and akin to the legislative process.

A perfect example is the Supreme Court's recent decision in Lincoln Property v. Roche. The case involved a dry civil-procedure question about the jurisdiction of federal courts. The case did not turn in anyway whatsoever on whom the involved parties were. The decision, issued by Justice Ginsburg, was unanimous. In fact, it could easily have been written in exactly the same manner had the lawyers simply referred to their clients as "Party A" or "Party B". Nonetheless, the headline the next day read: "Justices side with landlord over tenants." [...]

It was proposed that Judge Alito was oriented against employment-discrimination plaintiffs because he voted in their favor on "only" 4 of 18 occasions. But this is hardly an extraordinary record. What the article failed to report was that employment discrimination claims are notoriously unsuccessful in federal court. A 2003 study of employment discrimination claims conducted by three law professors bears that out: among all federal appeals court judges, employment discrimination plaintiffs prevailed in only 13 percent of cases. By this standard, Judge Alito's record of 4 out of 18 cases � 22 percent � could be seen as particularly generous.

Alas, too often, judicial decision-making is results-oriented. But one would hope that the press would recognize that there is a faction out there trying to restore judicial honesty to the system. (As Walter has noted, pro-Alito advocates on the right wing aren't entirely free from blame on this issue.)

I had an interesting example of this distortion occur to me. When Alito was first nominated, I gave a lengthy interview to Forbes magazine about Alito's record. Daniel Fisher asked me whether I was concerned that Alito might, as a "movement conservative," join Scalia and Thomas in opposing constitutional limits on punitive damages. I took the position that, even if Alito were to rule against the BMW v. Gore standard, business is far better off with a judicial system full of Alitos that believe in the limits of judicial power and understand the economic realities of business in a litigation environment. I made the mistake of concluding with an eminently quotable soundbite: "All in all, business wins," meaning the positive effects of merit-based judging combined with an understanding how an opinion can affect more than just the parties before it outweigh the possible loss of a business-friendly ruling here or there.

This has been taken by some journalists and Professor Hoffman to mean that I think Alito will rule in favor of business reflexively. I don't think that, and his record demonstrates that he wouldn't. But I think business is better off in the long run with a judge and judiciary that decides cases on the merits and has an understanding of the second-order effects and consequences of their decisions than the appointment of a hack judge who makes his or her decisions based on the identity of the parties in the caption. If one appoints the latter type of judge, one has to acknowledge the legitimacy of the hack judges on the other side who reflexively rule in favor of plaintiffs, and neither type is good for the justice system.

Unfortunately, as I anticipated in June (in a now-defunct Haloscan comment), a 5-2 decision of the Florida Supreme Court has struck down a school-voucher program by manufacturing a nonsensical interpretation of a state constitutional clause out of thin air. Will Baude:

The majority commits the usual trick of announcing that a provision has a purpose that justifies creating a new but clearly different provision that resembles the old provision only with a newer, broader swath.

Institute for Justice Senior Attorney Clark Neily comments:

�This ruling is such a radical departure from Florida precedent and common sense that the opinion appears both nakedly political and specifically designed to avoid confronting the Blaine Amendment question. There is no case law whatsoever interpreting the �uniformity� clause to prevent the State from providing both public education and scholarships. And indeed, the State has a long history of paying for some public students to attend private schools. In fact, a unanimous Florida appellate court earlier in this case rejected the �uniformity� argument against Opportunity Scholarships, and no other state has taken such a radical interpretation of similar constitutional provisions.�

Because the decision was on narrow state constitutional grounds, there is no basis for appeal to the U.S. Supreme Court. (Or, perhaps better phrased as "To avoid appeal to the U.S. Supreme Court, the decision was on narrow state constitutional grounds.") The only remedy for Floridians is to amend their state constitution.

This opinion could lead to future outrages. Several states have constitutional provisions similar to Florida requiring a "uniform" school system. Some judges are activist, but feel some constraint to follow precedent. While such a judge would never nakedly strike down a voucher program with a brand-new interpretation of the uniformity provision, he or she would now have the fig leaf of the Florida Supreme Court "precedent" to hide behind—no matter how dishonest that precedent is.

Joseph Knippenberg was following the case closely and will no doubt have something to say. AEI's Katie Newmark was also following the issue.

The Chamber of Commerce and National Association of Manufacturers will endorse the Alito nomination today. Kathleen Schalch of NPR reports; I'm quoted shortly after the 2:10 mark. Professor Ann Althouse is also interviewed.

Philanthropy well spent

Noah at Gideon's Blog recommends year-end charitable contributions:

In the wake of the transit strike, I have redoubled my support for The Manhattan Institute. The Manhattan Institute is the only right-leaning think tank I'm aware of that focuses specifically on urban issues. And they understand these issues - they are not knee-jerk libertarians or the type of cultural conservatives who would prefer to saw off the eastern seaboard. Their fellows, like E.J. McMahon, Julia Vitullo-Martin and Steven Malanga have been ubiquitous in the New York media on a whole host of issues vital to the future of New York and, by extension, other cities. I also think they deserve credit for keeping Heather Mac Donald and Tamar Jacoby under one roof; if the GOP can continue to manage that same trick constituency-wise, I'll be even more impressed. Mayor Bloomberg has not been nearly so attentive to their advice as was his predecessor, but he hasn't been entirely closed either. I sincerely hope the next governor of our state is a regular reader. I'll certainly be listening to how they handicap the various prospects.

Well said -- the only thing to add being a mention of the Institute's great work on other issues, such as litigation reform.

Bad month for Connecticut ob/gyns

Reader Leonard Ferrucci writes in to say:

November was a bad month for Connecticut obstetricians and gynecologists to the tune of $53.7 million (plus 12% interest per year from when the cases were filed). Here are the details:

* "$36.5 Million Malpractice Award May be Record for Conn.": Hartford Hospital, and attending ob/gyn, found liable for infant's cerebral palsy and other injuries; electronic fetal monitoring allegedly indicated an earlier caesarean section than was conducted.

* "Parents Robbed of Tough Choice", by Thomas B. Scheffey, Connecticut Law Tribune Nov. 21 (subscriber-only): Shaun and Nicki Chamberland of Wolcott win $12 million "wrongful birth" award against Physicians for Women's Health LLC, which allegedly should have more strongly urged expectant mother to undergo testing which would have revealed fetal defects; parents say they would have aborted Shaun Jr., now 6, had they known.

* "University to appeal malpractice verdict": $5.2 million against Yale School of Medicine and private ob/gyn practice for allegedly erroneous cancer diagnosis and unnecessary hysterectomy: Yale School of Medicine Dean Robert Alpern expresses surprise at verdict's magnitude, saying "Awards of that size are the reason why medical malpractice insurance rates are so high."

The plaintiffs' bar's favorite four justices on the Wisconsin Supreme Court that issued a series of questionable 4-3 rulings expanding liability in 2005 (Jan. 4; Nov. 23; Aug. 11; Jul. 14) will stay put for another couple of years at least; though one of the four, Justice Patrick Crooks, was up for re-election this year, no one filed to challenge him on the ballot, essentially guaranteeing Crooks another ten-year term. The AP story fails to mention the fact that Crooks had incurred any controversy for his participation in the Court's power grab over the last year. (JR Ross, AP, Jan. 3).

A problem with electing judges is that an election campaign requires an attorney to interrupt her career. Clients needing work during the campaign may need to go elsewhere; clients anticipating long-term projects that will extend beyond election day may not want the risk of having to switch attorneys should their attorney be elected. And if one loses the election, it's difficult to rebuild the practice. All for a job that will pay far less than what an experienced attorney can make in private practice. (A similar problem plagued Miguel Estrada when the Senate filibustered his nomination for over two years; his withdrawal reflected the difficulty of trying to ride two career horses simultaneously.) An election process thus leads to candidates who tend to be prosecutors or other government attorneys—or those well-connected within the plaintiffs' bar.

Avery v. State Farm

Martin Grace, reacting to E.L. Eversman, has some further thoughts on the replacement-auto-parts class action, and specifically the way (until its reversal) it claimed a right for Illinois courts to regulate insurance contracts nationwide.

Wisconsin high court, again

For about the umpteenth time in the past year, it extends a hand to the plaintiff's bar at the expense of the coherence of the law: this time, by a 4-3 margin with the usual justices in the majority, it's stretching out the statute of limitations so as to allow a suit alleging that much-advanced theory, hypoxia-induced cerebral palsy, more than 11 years after a child's birth (via Red State Moron). More on the follies of the Wisconsin Supreme Court: Nov. 23, etc.

Alito's environmental record

...ably defended by Case Western lawprof Jonathan Adler, at National Review Online (cross-posted at Committee for Justice blog).

"Indicted Lawyer's Firm Smelled Trouble"

One should always take memos like this with a grain of salt—there's a danger of hindsight bias and cherry-picking in showing "knowledge"—but it's still worth noting The Recorder's Jan. 3 coverage of a Best Best & Krieger memo critiquing its processing (and what may be attempted laundering) of payments from Milberg Weiss to Seymour Lazar, who has since been indicted for allegedly taking $2 million in kickbacks from Milberg Weiss. "Prosecutors have also given immunity to at least two other former clients who say they received kickbacks from the firm via other attorneys. Lawyers familiar with the case say their allegations are similar to those detailed in the Lazar indictment."

The Wall Street Journal has moved its August 8 coverage of the investigation to its free pages. Other coverage: Oct. 5; Aug. 22; Aug. 16; Jul. 11.

Pemoline ban

The FDA, under pressure from Ralph Nader's Public Citizen, has required pemoline to be withdrawn from the market on the grounds that there are less risky ways of treating ADHD. This doesn't help Teresa Nielsen Hayden, who found the drug (often marketed as Cylert) to be the only adequate treatment for her narcolepsy, and is looking at the "end of [her] functional working life" (via Taylor). Since a black-box warning had been added in 1999, there had been one case of liver failure, though the rarity doesn't stop one plaintiffs' firm from trotting out the standard trope against Abbott for ever selling the drug in the first place: "We believe that drug companies who place profit above people must be held accountable for their negligence and the damage they cause to innocent victim�s [sic] lives." Kline & Specter also advertises for Cylert patients. Trial lawyers often work hand in hand with Public Citizen to promote work-creating measures for the plaintiffs' bar, but you won't see this documented in books on political movements' "war on science."

As I've noted elsewhere, the FDA already errs on the side of false negatives when it comes to drug approval—which makes the additional layer of risk of civil liability through tort a dangerous over-deterrent to pharmaceutical innovation.

Update: Note also the distorting effect of civil litigation on the FDA process. A pharma manufacturer faced with the lobbying campaign of a Public Citizen is limited these days in how hard it can fight back against unfair characterizations of its drugs. If the manufacturer lobbies the FDA in the opposite direction, it risks being second-guessed at a future trial: witness the lambasting Merck is taking for arguing with the FDA over Vioxx labeling. If the manufacturer says one thing that is later shown wrong after more data comes in, it is accused of "lying." Plaintiffs' attorneys and their surrogates are under no such constraints, and this pushes the FDA anti-approval bias even further in the wrong direction.

WSJ news side's blog

Speaking of Wall Street Journal reportage (as with the story on the Judd Burstein-Don King case which Michael just linked) the paper's news-side law correspondents have launched a new blog of their own, billed as "WSJ.com on law and business and the business of law".

Switching sides...
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I confess I can't remember ever seeing something quite so blatant: a lawyer representing A in a suit against B drops A, then takes on B in a suit against A based on the same contract, allegedly. Oh yeah, the switch was preceded by anger by the lawyer for not being paid what he thought he was owed by A. This [subscription to online newspaper required] is enough to make you wonder whether the "ethics" of professional boxing has rubbed off on the attorneys in that field.

More from the expert wars: The American Academy of Emergency Medicine has launched a web project asking members "to submit cases in which expert witness testimony was remarkable enough to be publicized. Examples of such testimony may seem farfetched, unbelievable or just plain wrong. Other testimony may be succinct, insightful or particularly helpful." The idea is apparently to draw on shame or applause as components of informal peer review.

The academy also has a position statement on ethics in medical testimony, which demands that "at all times" an expert witness offering testimony must "not advocate for the party who engages him or her as an expert witness" It also goes on to prescribe to the witness a "duty to confer" when so requested by a court, which Louise Andrew of the Coalition and Center for Ethical Medical Testimony says may be unique of its sort:

Duty to Confer

At the direction of the court, an expert witness will confer with other witnesses to

attempt to reach agreement on matters within the field of expertise of the expert witnesses;

prepare and sign a joint witness statement describing matters of agreement and disagreement among the witnesses, along with the reasons for disagreement.

In following the court's direction, the expert must exercise independent and professional judgment and must not act on the instructions or directions of any person to withhold or avoid agreement.

And Tresa Baldas of the National Law Journal has some reaction from the bar to the efforts by the American Academy of Neurology (see Dec. 14) to crack down on unqualified or inaccurate testimony in that specialty. Among lawyers quoted is New York med-mal defense attorney Michael Shalhoub, who "said that too often he has handled cases where plaintiffs' experts blatantly advocate for the plaintiffs, using terms like 'we' and 'our position.'"

More: Dr. Tony, at his own site and guestblogging at Kevin Pho's, has several posts (one, two, three) with many details about the first case to make it into the AAEM's database.

Blawg Review names Point of Law the winner of that award in its new "Blawg Review Awards 2005". It's not clear however whether there was any competition in that category for us to beat.

Speaking of Blawg Review, Evan Schaeffer in Blawg Review #38 names this site as a model of opinion/argumentative writing, which is not to say we've convinced him yet.

David Boies' Alaska oil lawsuit

...is disrespected both by Holman Jenkins in the W$J and by Tom Kirkendall.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.