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December 2007 Archives

It's another setback for vaccines-cause-autism campaigners, as the court (applying Maryland's Frye-Reed standard, as opposed to Daubert) excludes a team of experts led by the controversial Dr. Mark Geier. Kathleen Seidel has details; see also AutismDiva @ Autism Speaks. Earlier here, here, etc.

P.S. Oh, well, at least the campaigners still have Donald Trump and the Huffington Post on their side.

Around the web, December 30

  • Paul Weiss could reap $174 million contingency fee suing Marsh actuaries on behalf of state of Alaska [Juneau Empire via ABA Journal]
  • Wall Street firms head for court over mortgage derivatives [UK Independent]
  • First successful asbestos suit in South Korea [Korea Times]
  • Those darn "Republican male" judges are giving CAFA a sympathetic interpretation, complain Profs. Clermont & Eisenberg [Burch, MassTort Prof]
  • Texas state bar, often seen as lax at disciplining errant lawyer/members, does crack down when they don't pay dues [KXAS Dallas]
  • Memo to John Edwards: even lefty Mother Jones mag thinks you sound like a broken record with the constant business-bashing [Jonathan Stein]
  • A well-diversified portfolio: should it include bets on litigation? [Times Online (UK) via Cowen, who's just noticing this trend, familiar to our readers]
  • Jonathan Kozol is the education expert who seems incapable of learning [Leaf/Weekly Standard]

Standard incandescents to be banned

The three major light-bulb makers "concede they basically wrote" the new measure, according to Timothy Carney: "Had Thomas Edison employed the same business strategy as his 21st-Century heirs at General Electric, he would have lobbied Congress to outlaw the candle in 1879 when he perfected and patented the light bulb." More: Andrew Ferguson.

Ohio Supreme Court upholds damage caps

Arbino v. Johnson & Johnson was a 5-2 decision, and joins at least 19 other state courts that recognize that it is within the power of a legislature to regulate civil remedies. [AP/Law.com]

The New York Times's one-sided hit-piece on Rudy Giuliani's representation of Purdue Pharma omits the critical piece of information that explains the dynamic of a pharmaceutical prosecution: debarment. A federal prosecutor who wins a trial on the most severe charges against a pharmaceutical company can cost it billions and billions of dollars and drive it out of business entirely a la Arthur Andersen. And federal prosecutors know that pharmaceutical defendants will never risk trial for just that reason: even a 99% chance of success at trial makes the risk untenable. Thus every investigation into pharma in the last decade by ambitious federal prosecutors has eventually led to a plea bargain on lesser charges, and Purdue Pharma's May 2007 plea on OxyContin sales was no different. Prosecutors get a scalp and good headlines without having to risk a loss at trial, and corporate defendants pay the extortion. The word "misdemeanor" never appears in the Times article, though that was all Purdue Pharma and its executives pled to; rather, the company is treated as murderers for the drug abuse of people using (and often stealing) the drug illegally. Jonathan Rauch's 2002 Reason article is a much more balanced look at the underlying factual claims.

The abuse of criminal prosecutions of the pharmaceutical industry has essentially turned into an inefficient and de facto windfall profits tax, and, along with the lack of federal preemption in products liability, does much to explain why pharmaceutical prices are higher in the United States than elsewhere.

Talk of a $50,000 -per-doctor surcharge has physicians in the state "petrified", according to Robert Goldberg, president of the Medical Society of the State of New York. "A Brooklyn brain surgeon now pays $267,000 a year in malpractice insurance premiums and an obstetrician in Queens pays $180,490," but now it turns out, per state insurance superintendent Eric Dinallo, that insurance rates have been "been artificially low for more than a decade".

The challenge to the Vioxx settlement made on ethical grounds (which got substantial publicity in the New York Times and blogosphere when it was filed last week) was voluntarily withdrawn in a brief filed on December 22, and will not be argued on January 7 as originally reported. The supporting papers in the motion to withdraw state that the parties are meeting on the issue and have made "great progress," but do not specify what that progress is.

"DOJ's Free Pass for Tort Fraud"

In a scathing WSJ op-ed -- subscriber-only at the moment -- Cardozo lawprof and friend of this site Lester Brickman assails the U.S. Department of Justice for its apparent unwillingness to pursue signs of fraud in mass asbestos and silicosis litigation. Discussion: Cliff Hutchinson (applauding the article), Esoteric Appeal (taking the interesting view that it isn't fraud for a "party trying to prove their case" to tailor a diagnosis to fit). Plus: related Examiner editorial.

A plaintiff's attorney who fraudulently avoided paying a legal malpractice judgment that itself arose out of previous fraud was given a second chance last week, reports the New York Law Journal (via Law.com)

Southern District of New York Judge Denise Cote sentenced David A. Dorfman to two years of probation for criminal contempt, a charge that was brought only because the judge became so frustrated with Dorfman that she asked prosecutors to intervene and indict him. Judge Cote ordered Dorfman to spend six nights of confinement in a halfway house before June 2008, but decided against a fine because she said that every possible penny earned by Dorfman should go to the party who had obtained a $360,000 malpractice award against him.

The client had hired Dorfman to prosecute a health-related torts claim against New York City, because the lawyer claimed he had founded a "dynamic" law practice and falsely represented that he had created the healthcare L.L.M. program at New York University School of Law and acted as counsel to health care companies.

Dorfman filed suit on the client's behalf in March 1995, after the one-year-and-90-day deadline for filing had expired. That suit was thrown out.

In 1999, in the client's malpractice suit against Dorfman, a jury verdict was confirmed awarding Baker $360,000 in compensatory damages and $25,000 in punitive damages for malpractice. Dorfman was censured for his conduct in 2003. His fraudulent efforts to escape payment of the claim are detailed in the NYLJ article. Presumably he now will be disbarred.

A lawyer who receives the opposing counsel's work product must stop reading the document upon realizing its privileged nature, and must immediately notify opposing counsel to try to resolve the situation, the California Supreme Court announced on Dec. 13 (Rico v. Mitsubishi Motors Corp., Cal., No. S123808, 12/13/07, aff'g 20 Law. Man. Prof. Conduct 109 ).

In this case, both the attorneys for the plaintiffs and their experts in a vehicle rollover case were permanently disqualified.

The 12-page document in question summarized, in dialogue format, a meeting between Mitsubishi's defense counsel and defense experts. One of the defense lawyers, James Yukevich, had asked a Mitsubishi case manager to take notes at the meeting; Yukevich later edited those notes and added his own handwritten comments.

After a deposition ended the plaintiffs' attorney, Raymond Johnson, somehow wound up with this document. Johnson later said that a court reporter accidentally gave him the document, whereas Yukevich contended that the document was taken from his files when Johnson temporarily "commandeered" the deposition room for a personal meeting.

Johnson made a copy of the document for himself before returning the original to the court reporter. He studied the document, sent copies of it to the plaintiffs' experts and the other lawyers for the plaintiffs, and used it to impeach a defense expert during a deposition.

Upon realizing that Johnson had a copy of his notes, Yukevich demanded that all copies be returned, and moved to disqualify Johnson and the experts who had seen the documents. The California Supreme Court has now happily sanctioned Johnson's misfeasance.

Many readers will be familiar with Britain's infamous libel laws, which are extremely plaintiff-friendly and which, notably, have been used by Islamists and their fellow-travelers to attempt to muzzle those who reveal their activities. In the words of the New York Post, British libel laws gave rise to a practice that critics call "libel tourism." [The British High Court tightened its jurisdictional rules somewhat in 2006, truth be told.]

The Sun reports that, earlier this week, New York's highest court passed up an opportunity to protect American authors from libel tourism. That state's Court of Appeals ruled that New York-based Rachel Ehrenfeld could not use Empire State courts to challenge a British judgment ordering her to pay 30,000 British pounds � more than $60,000 � for "defaming" a Saudi billionaire widely felt to be a funding source for terrorist organizations. The court found that the Saudi had so few dealings involving New York that its courts had no personal jurisdiction over a suit against him, though of course that would change were he ever to attempt to enforce the British judgment in New York. Ms Ehrenfeld had sought a declaratory judgment that the British libel tourism was an infringement on her First Amendment rights. Now she'll have to wait to be sued, in limbo as it were, with other victims of libel tourism victims.

Bloomberg and securities class actions

The Mayor can talk a pretty good game about the need to rein in destructive shareholder litigation. So why exactly is his NYC Employee Retirement System board contributing to the problem with a suit against Apple?

"Gov. Charlie Crist has asked three prominent trial lawyers to review the property insurance industry's compliance with an 11-month-old reform and recommend whether or not to sue the insurers," reports Aaron Deslatte of the Orlando Sentinel. Prof. Grace wonders if Gov. Crist has been taking tutelage from Mississippi AG Hood.

I'm interviewed...

...at Kevin O'Keefe's site Real Lawyers Have Blogs (and this is probably a good place for a reminder that I am not in fact a lawyer).

Panel on Vioxx settlement at AEI, January 7

Already committed to speak at the AEI Legal Center/Federalist Society lunchtime event: Richard Nagareda (Vanderbilt); George Cohen (Virginia); Mark Herrmann (Jones Day and Drug and Device Law Blog); Ted Frank (AEI).

Updated and bumped December 21: Just added to the panel: Plaintiffs Steering Committee member Andy Birchfield. Register on-line.

Vioxx suits meritless? Now they tell us

Alex Berenson article about the expected challenge to the anti-cherry-picking provision of the settlement:

As a practical matter, plaintiffs will not be well served by bringing cases to court, given Merck�s strong record, said Christopher A. Seeger, a plaintiffs� lawyer who was on the negotiating committee that helped devise the [settlement] deal.

Earlier: Nov. 13 and Nov. 19.

The attack on judicial seminars

Volokh conspirators are calling attention to the pending bill with its disturbing implications: federal judges would find themselves in large measure barred from attending conferences not "sponsored by any bar association, any judicial association (including the National Judicial College and Federal Judicial Center), subject-matter bar associations, and the ABA's Judicial Division." After all, the organized legal profession and judicial bureaucracy has the best interests of us all at heart, so why permit judges to turn elsewhere for possible sources of ideas or analysis?

It's hard to see the proposal as anything other than an example of the Jacobs thesis come to life and parading itself around unashamedly for all to see. Earlier here, here, here, and here.

Cy pres: "When judges get generous"

The editorialists of the Washington Post say that although judges may be legally empowered to find other uses for unclaimed funds left over from class actions, "giving the money away to favorite charities with little or no relation to the underlying litigation is inappropriate and borders on distasteful". Case in point: Judge Harold Baer's disposition of moneys remaining from a class action on behalf of fashion models (via Bader). And maybe an even better case in point: "A court battle between a giant drug benefit company and its stockholders may wind up putting $400,000 worth of free hockey tickets in the hands of Nashville�s needy." The plan has come under considerable criticism from Tennessee lawyers and commentators.

Top 10 insurance coverage cases of 2007

David Rossmiller (who continues to have must-read Scruggs coverage above and beyond what the newspapers and other legal blogs are reporting), has Randy Maniloff's Top 10 cases of 2007.

More successful countersuits by docs?

Not clear at all whether there's a trend -- and the legal system is set up to make it extremely hard for doctors to prevail in countersuits -- but the AMA's American Medical News notes that three Ohio doctors have succeeded in getting their legal fees paid by adversaries over the past six months, along with a similar such case in Mississippi. The real pattern to be discerned, if there is one, may be that the Ohio State Medical Association assisted in all three of the wins in its state "through its Frivolous Lawsuit Committee, a program that educates physicians about the practice and helps them defend against it". More: White Coat Rants.

Sexual harassment of mall Santas

Daniel Schwartz has some thoughts on the employment-law aspects.

The other Scruggs Katrina scandal

The bribery charges stemming from the fee dispute have been getting 99 percent of the attention, but as David Rossmiller relates (and earlier here), there are some major developments as well in the thicket of misconduct charges arising from Scruggs Katrina Group's remarkably uninhibited tactics in its litigation against State Farm. One highlight: a smoking-gunnish note by an engineer cooperating with SKG "recount[ing] an apparent conversation between Special Assistant Attorney General Courtney Schloemer and an SKG attorney: 'they agreed that a criminal conviction [if one could be obtained against State Farm] could help civil cases.'" Some further discussions here, here, here, and here.

Also, the Wall Street Journal's free OpinionJournal.com site has now posted a no-subscription-needed link to my Saturday op-ed on the Scruggs indictments. It can be found here.

Cincinnati Enquirer on fen-phen scandal

Last month the Cincinnati Enquirer published a special section laying out what's known about the Kentucky fen-phen scandal in which lawyers covertly pocketed $125 million of a $200 million settlement over the diet drug, leaving $75 million for their clients. We've covered the scandal extensively at this site and at Overlawyered. Somewhat relatedly, it appears that attorney Angela Ford, who has been representing victimized clients in the affair, is going after at least some other lawyers in other parts of the country who worked with the Kentucky lawyers. Forty-nine plaintiffs represented by Ford "allege J. Brent Austin of Lexington, the defunct Mississippi law firm of Langston, Sweet and Freese, and the Alabama firm of Beasley, Allen, Crow, Methvin, Portis & Miles bilked them of the money." Beasley Allen says it did not take any improper fees and suggests that if there were any shortfalls in what its clients received, the problem was at the Kentucky lawyers' end.

U.K. class actions: a carom-shot strategy?

The way at least one British lawyer tells it, the push to open up class action procedures in the U.K. may represent a sort of carom-shot strategy on the part of the U.S. plaintiff's bar: they want to stir up these actions, but aren't actually likely to file them in British courts:

...the US plaintiffs� Bar is showing a keen interest in recruiting claimants in the UK. The aim is not to develop claims in Europe, but to export claims in which the US courts are accepting jurisdiction. So if you have a choice as a claimant, the US will be first every time: no risk on costs, contingency fees and high damages make it attractive. If a UK claimant can be recruited either as a lead plaintiff or as a candidate for opting out of the class settlement, the returns for the attorneys can be significant.

This interest is likely to be heightened by a series of decisions in the US courts. In a claim by shareholders against Vivendi, the judge in the Southern District of New York decided arbitrarily that English claimants could litigate claims before the courts, but Germans could not. All turned on the view of the court as to whether a class judgment or settlement would be enforceable; yes in England but no in Germany.

Best v. Taylor Machine Works

Today is the tenth anniversary of Best v. Taylor Machine Works, where the Illinois Supreme Court undid legislative tort reform on the grounds that only the state courts could legislate in this area, with the chutzpah to claim that the legislature was violating the separation of powers. (It also struck the statute under a disingenuous application of rational-basis review.) This illegal judicial aggrandizement (still on the books) has a lot to do with why there were so many judicial hellholes in the state: the legislature is nearly powerless to constrain them. As Ed Whelan notes, the dissent correctly said:

�Today�s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority�s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.�

Shutting down judicial travel, cont'd

A provision in the judicial pay raise act would revive earlier attempts to shut down judicial seminars of the law-and-economics variety, and also torpedo a lot of judicial travel for other purposes, such as the giving of speeches at law schools, reports John Fund in the WSJ.

The policeman's widow profiled in this highly sympathetic Times article claims to be shocked that the City of New York is advancing all the legal arguments at its disposal to counter her money demand for $250 million: "It's like they don't care anymore." Funny how that can happen, isn't it? Central to her suit, it seems, is the exceedingly lame theory that it was negligent for the city's police department to have bought Chevy Impalas and Luminas as highway patrol cars.

The criminalization of science

For all you hear about the so-called Republican war on science, one should be more concerned about the left's and trial bar's war on science, which has actually cost lives. In today's Wall Street Journal, AEI's Scott Gottlieb discusses the prosecution of off-label promotion of truthful scientific claims—and, if anything, understates the problem, by focusing on Department of Justice abuses to the omission of the parasitical qui tam and plaintiffs'-bar litigation against the pharmaceutical industry and doctors over similar off-label use.

(The AEI Legal Center for the Public Interest is commissioning research into the law, economics, and public policy of off-label prescriptions and marketing. If you are interested, please contact me.)

Arbitration discussion at Overlawyered

Bipartisan legal reform bill in the Senate

Federal legal reform is still conceivable in a Democratic Congress, so long as it doesn't directly touch the pockets of the trial bar. One of the greatest expenses in litigation is document discovery, especially in an age of e-mail. It's not simply a matter of photocopying file cabinets: there is something called attorney-client privilege, and if a privileged document is produced to the opposing side, it can argue that the privilege has been waived, and it is entitled to all of the privileged documents. Because of the huge consequences of a mistake in production, parties must expend huge resources on attorneys reviewing documents to ensure that the privileged documents are withheld. Some courts have ordered the return of inadvertently produced privileged documents (and some state bars have even held it unethical to fail to return inadvertently produced privileged documents), but there is no consistency in this, so the incentive is to overspend on defensive lawyering. The increased cost of discovery means that a complaint that gets to the discovery stage has a greater chance of forcing an extortionate settlement, even if illegitimate.

S. 2450, introduced by Sens. Leahy and Specter, would implement a new Federal Rule 502, establishing a presumption for the return of inadvertently produced privileged documents. The effect on litigation expense will be small, but material, to the benefit of everyone except attorneys, though the impact may be overwhelmed by recent developments in the federal law of privilege recognition.

Update, Dec. 18: And an example of the problem at Drug and Device Law Blog.

Around the web, December 17

  • What did baseball get for the $20 million invested in Mitchell steroids probe? [Kirkendall]
  • "Backdating options -- the scandal within a non-scandal" [same]
  • Political opponents snipe that controversial Ohio AG Marc Dann is a "mistake factory" [AP/Cincinnati Post]
  • Broward County, Fla. judges feel heat from crusading law blog [NLJ]
  • Fairness opinions in M&A? Well, at least they give the lawyers something to do [Epicurean Dealmaker]
  • An overdose of public piety [Krauthammer, WaPo]
  • Who are those people waving signs at the courthouse in Beaumont, Tex., and why are they so mad at asbestos plaintiff's firm Provost Umphrey? [Beaumont Enterprise]

Wal-Mart and small business

Maybe not so destructive after all (via Ribstein). (Note: this Sunday morning post replaces one that I pulled when I realized it more or less duplicated an earlier item by Ted).

"What determines malpractice payments?"

Plenty of interesting settlement statistics drawn from the National Practitioner Data Bank by a new publication calling itself MedMal Reporter (PDF) (via Maryland Injury Lawyer Blog, who says that the report "answers the questions I have always wondered about: whether gender matters (it does not), and what is the optimal age of a plaintiff with respect to settlement/trial value of the case (30-39).")

Welcome Wall Street Journal readers

My op-ed in Saturday's Journal on the Dickie Scruggs case is here. For more on the indictments and their aftermath, check out my regular updates at Overlawyered and David Rossmiller's at Insurance Coverage Blog. You'll find much more on highlights of Mr. Scruggs's litigation career at both sites, and also right here at Point of Law, where there are special categories devoted to product liability, regulation through litigation and insurance law. In this post from March, we took issue with the New York Times's lionizing treatment of the Oxford, Miss. litigator.

Around the web, December 14

The New York Law Journal (via Law.com) reports that a New York state appeals court has thrown out a $14 million medical malpractice verdict, holding that a Brooklyn Supreme Court judge's inappropriate conduct, including presenting the brain-damaged 4-year-old plaintiff with a box of candy in front of the jury, denied the defense a fair trial.

My own experience is that such judicial behavior (outside the presence of a jury) is not uncommon -- judges not infrequently show their cards, as it were, during pre-trial settlement hearings. Defendants get a loud and clear message to settle....

"Here come the climate-change lawsuits"

A financial writer at Motley Fool advises caution on stocks of companies that might face legal claims: "Known to its detractors as Trial Lawyers, Inc., the plaintiffs' bar makes serious bucks by launching mass tort and class action suits. The bigger the damages, the bigger the contingency fees, so high-profile harm is how these litigation firms make hay -- and it doesn't get much more high-profile than climate change."

Massachusetts med-mal reform

Proposals now before the Bay State legislature would adopt proportionate liability in place of joint and several liability; set the prejudgment interest rate at the same as Treasury bills, instead of four (!) points higher; require that plaintiff's expert witnesses be board certified in the same specialty as defendant physicians; allow periodic payments; and allow consideration of collateral sources. The Massachusetts Medical Society's testimony in favor is here, and a Worcester Telegram editorial was recently supportive as well.

They seem to be bouncing back, per Kevin LaCroix at D&O Diary.

Toledo lead paint lawsuit

Soundly dismissed, reports Jane Genova. More: defendants' statement.

Judge Posner on trial management

He has predictably robust opinions on the subject, as Anne Reed recounts:

Although he was never a trial judge, he has presided by designation over "15 or so" trials, and told the Chicago Tribune, "I think I've learned a lot." ...

In a recent dissent, he wasn't satisfied with the model of umpireal passivity for judges:

Trial judges can and should control long trials by quizzing lawyers on their witness lists and documentary evidence ("Why do you want to call this witness? If you do call him, what (in general terms) will he be testifying about? What will that testimony add to your case? How lengthy would his testimony be and what would he cover that requires that length of time? Do you really need witness X to discuss topic A when you already have Y to discuss it? Can the parties agree to a stipulation in lieu of some of the evidence?"), putting time limits on trials, and holding active pretrial conferences, Judge Posner and the others went on. And they should do it before they're asked to...

It doesn't mention this site, or our issues. But it's still pretty interesting.

Dukes v. Wal-Mart redux

The Ninth Circuit, ten months after its 2-1 decision in Dukes v. Wal-Mart, withdraws its old opinion and has issued a new 2-1 decision that comes to the same result in response to the motion for rehearing. The new opinion is four pages shorter than the old opinion, and the new dissent is three pages longer than the old dissent. I haven't yet made a page by page comparison, but the main change appears to be punting on the question of the due process violation of the certification where the old opinion expressly denied the claim of a violation. Judge Kleinfeld's dissent is once again persuasive. Wal-Mart will surely file a new motion for en banc rehearing, and the loser of the proceedings (if any) resulting from that motion will surely file a cert petition.

The Texas Lawyer (via Law. com) reports that solo practitioner Mary Roberts has been convicted of theft. It seems the married Roberts had successive affairs with four men, then assisted her husband Ted in obtaining $155,000 from the men in exchange for the husband's not suing them for the emotional distress caused by their "tortious interference" with his life. Ted has already been sentenced to five years' imprisonment for his participation in the extortion ring.

Roberts' lawyer, apparently incredulous at the verdict, exclaimed that "this was ordinary conduct that lawyers do"...

Around the web, December 12

  • Meet trial lawyer David Dorris, who blocked U. Ill.'s idea of giving Chief Justice Roberts an honorary degree [NRO Corner, Wash. Times]
  • Criminal forensics doctor in U.K. who wrongly accused parents could lose right to practice [Times Online]
  • Those "tobacco AGs" really haven't done so well running for higher office, have they? [X Curmudgeon]
  • An injury lawyer finds himself in his own auto accident [Turkewitz]
  • Toxic if swallowed? California Prop 65 right-to-know lawyers sue Apple over chemicals in iPhone [InfoWorld, ABA Journal]
  • Get your more or less daily new Scruggs developments at my other site, and at David R.'s [Overlawyered, Insurance Coverage Blog]

Minnesota as the new Madison County

I appreciated this ABA Journal article on the rise of Minnesota as a products liability (and general torts) magnet.

Minnesota has one of the nation's longest statutes of limitations (6 years for negligence suits and 4 years for "strict liability" products suits). In addition, only Minnesota allows an out-of-state resident to pursue an out-of-state defendant (who need only be authorized to do business in the state) even if the plaintiff's suit would b time-barred in the plaintiff's own state. The combination of these two rules has made it possible for plaintiffs to revive "dead" suits by suing in federal court in Minnesota -- about 93% of drug and medical device cases filed in the state since 2004 have been filed by out-of-state plaintiffs, the overwhelming majority of which would have been time-barred not only in the plaintiff's home state but in every other state.

Minnesota's unique configuration of rules (arrived at somewhat by mistake, as the article demonstrates) makes a mockery of federalism.

Earlier this year, Judge Higbee refused to dismiss the claims of 250 Michigan residents who sued in New Jersey, even after the New Jersey Supreme Court's decision in Rowe v. Hoffman-Laroche that one could not abuse choice-of-law principles to evade Michigan law by filing in New Jersey. Among the Michigan residents with pending frivolous claims who will be eligible for Merck money in the settlement: Leslie Richter, who was extensively used in television advertising against state Republicans in 2006 over the pharmaceutical immunity, and singled out by the pro-trial-lawyer thinktank Drum Major Institute as a "tort reform victim." (Kyle Mellinn, MIRS Capitol Capsule, Dec. 7 (subscription only)). The MIRS story quotes me extensively. Earlier: Nov. 27 (Michigan). Rowe isn't the only precedent Judge Higbee ignored; she also disregarded Buckman in permitting punitive damages claims to go forward against Merck in violation of New Jersey state law.

FDA preemption in the courts

Beck and Herrmann give a good overview of the three big cases pending in the Supreme Court (one which awaits cert) and substantial coverage of the recent Third Circuit argument in Colacicco.

To follow up on our Dec. 9 posting, it looks like Mr. Scruggs will have to take commercial airlines like the rest of us. Unlike me, though, I bet Mr. Scruggs will fly first class.

Plaintiffs' attorneys often claim that the Supreme Court case of Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), which prohibits courts from conducting a preliminary inquiry into the merits of the case for purposes of determining whether the defendant should bear the costs of notice, also prohibits courts from giving any scrutiny to class allegations at the class certification stage. Not so. As Szabo v. Bridgeport Machines, 249 F.3d 672 (7th Cir. 2001) (Easterbrook, J.), notes,

if some of the considerations under
Rule 23(b)(3), such as "the difficulties likely
to be encountered in the management of a class
action", overlap the merits--as they do in this
case, where it is not possible to evaluate
impending difficulties without making a choice of
law, and not possible to make a sound choice of
law without deciding whether Bridgeport
authorized or ratified the dealers'
representations--then the judge must make a
preliminary inquiry into the merits. ...

But nothing in the 1966 amendments to Rule 23, or
the opinion in Eisen, prevents the district court
from looking beneath the surface of a complaint
to conduct the inquiries identified in that rule
and exercise the discretion it confers.

We've posted the latest in our series of podcasts with distinguished Manhattan Institute scholar (and U. of Chicago lawprof) Richard Epstein. This one is entitled "The New Antitrust: Reexamining Microsoft and Other Consent Decrees," and is once again introduced by MI's (and Point of Law's) Jim Copland.

P.S. Ted notes that AEI has more of related interest here and here.

Around the web, December 10

  • Our kind of talk: "Frankly, I think plaintiffs' attorneys would support a true loser pays system." [Personal Injury Law Roundup # 39 at Austin, Tex.'s Perlmutter & Schuelke LLP; the weekly series, formerly hosted by Eric Turkewitz, is now hosted there, see predecessors #38 and #37]
  • Not just here: lawyers in Ontario pressing for elimination of no-fault threshold [Toronto Star]
  • You'll have to tell your auditors more under Sarbox, and then guess who can scoop up the information later? [NYTimes]
  • Judge-shopping aided attorney Tillery in juicy $17 million payout in Sears appliance tipover class action [US Chamber/MC Record]
  • Shut down Indian Point nuclear plant? Not so fast, Attorney General Cuomo [Applebome, NYT]
  • Bottom-line pressures in legal practice undercutting civility, collegiality and professionalism, says Judge Baer as he sanctions Dorsey & Whitney [NYLJ]

The Wall St. Journal's Law Blog has a nice posting on Dickie Scruggs' request (he must request such things because of his bail requirements) that he continue to be allowed to fly his private jet out-of-state to consult with his pro hoc vice defense attorney.

An Indian view of Bhopal

Twenty-three years after the gas disaster, "Alok Prasanna offers an angry and pessimistic two-part series from Bangalore on the Bhopal litigation" (first and second parts; via Erichson).

The Florida Supreme Court has declined an invitation to widen its rule that lawsuits for emotional distress can generally be maintained only if there is also a physical effect or injury of some sort. (There are narrow exceptions, including psychotherapists' breaches). Impact rules have eroded in recent decades in many states, and trial lawyers had hoped to achieve that result in this case as well. Two dissenters, Justices Pariente and Anstead, apparently favor abolishing the impact rule. (Jeffrey Woodard v. Jupiter Christian School, PDF)

Following up on my earlier post and Walter's note on Byron Stier's personal experience, let me add my own war story, complete with PACER citations to briefs I wrote nine and a half years ago.

Byron Stier has some comments from personal experience. Earlier here.

If you're not reading Overlawyered...

Things you're missing if you're still not reading my (and Ted's) other blog: intensive coverage of the Dickie Scruggs indictment and its fallout; new trial lawyer group fighting with AAJ over ATLA acronym; ten state AGs object to provision in TJX class-action settlement; NY courts kind toward lawyers on question of when contingency fee deal is inherently abusive of client; Crocs footwear fad fades, resulting in inevitable shareholder suit; "Civil Gideon" push for NYC tenants; feds intervene against alleged fee overcharge by marine-dumping whistleblowers' lawyers; outcomes of Paxil settlement held secret; and much, much more.

Around the web, December 7

All-legal-academia edition:

Tort reform in the third branch

Normally, persuading the legislature and the executive to pass a law reforming problems is sufficient, but when it comes to tort reform, the trial bar has a well-funded arm that takes the battle to the third branch of government, the judiciary, which, dozens of times, has asserted its own legislative authority to strike down laws. The December 10 National Law Journal covers ATLA/AAJ's Center for Constitutional Litigation and its battles. POL's Richard Epstein and Michael Krauss are quoted.

No sledding allowed in Easton, PA's parks anymore. Liability fears are to blame.

Connecticut Employment Law Blog

This relatively new blog has at least three recent posts of interest, right off the bat:

* A not very well known Connecticut law provides that privately employed persons who quit to assume elected public office must be taken back by their employers afterward, with benefits and seniority accumulated for the time off. Nice deal!

* Describing new employees as "probationary" might make it a jury question whether some sort of permanent tenure or right to performance reviews before firing had been promised to those who make it past that stage, according to a federal court interpreting Connecticut law.

* If you complain to your employer about discrimination, and then lose your job a year later, even a relatively liberal federal judge says you're not just entitled to establish a claim for retaliation -- you actually have to offer, like, evidence.

Ohio asbestos reforms

Welding equipment manufacturers had won 16 out of 17 cases alleging damages from welding fumes, cases that were based on questionable scientific evidence and sometimes even out-and-out fraud. But when damages are unbounded, the trial bar can make a profit on bogus product-liability claims just on the random mistakes juries make, and a $20.5 million verdict in federal litigation in Ohio is evidence of that. Over 3000 more cases remain pending in federal court in Ohio. (Scruggs Law Firm press releaseDamian G. Guevara, "Lincoln Electric ordered to pay welder sickened by fumes $17.5 million", Cleveland Plain-Dealer, Dec. 5; Erichson blog). (The $17.5 million in the newspaper headlines does not reflect the separate $3 million loss of consortium claim. (h/t S.R.)) The defendants' press release note that plaintiffs have been forced to voluntarily dismiss with prejudice thousands of cases already, and failed to recover any damages for any of their nine "showcase" plaintiffs. In April 2006, the Illinois Supreme Court denied an appeal of the only other plaintiffs' verdict. If this verdict stands (and there's a good chance of reversal in the Sixth Circuit on Daubert grounds), defendants will have won 16 out of 18 cases, but plaintiffs will be averaging over $1 million of recovery a case. See also Apr. 4.

NYC mulls "caregiver discrimination" law

"Under a bill authored by the city's public advocate, Betsy Gotbaum, employees who are taking care of children, elderly relatives, or disabled family members would receive legal protections akin to those regarding race, gender, or religion." New York Sun reporter Benjamin Sarlin quotes me with critical comments on the idea. More on what is variously called "family responsibility discrimination" and "caregiver discrimination" can be found here.

The Miami Herald(via ILR) reports that self-styled King of Torts Luis Robles has been sentenced to 15 years at Club Fed, for defrauding over 7000 clients.

Robles and his firm siphoned off more than $13 million from asbestos clients between 1989 and 2002, according to the indictment. Rather than pass the money to his clients, Robles used it to purchase apartments in Los Angeles, New York and Colorado as well as a 9,000 square-foot mansion on Biscayne Bay and to finance forays into the movie production business.

Gauer Distinguished Lecture

I've been blogging a bit less in the last few months because in September, the National Legal Center for the Public Interest merged into AEI and I've been heading up the combined AEI Legal Center for the Public Interest ever since. Tonight, AEI continues the NLCPI's long tradition of the Gauer Distinguished Lecture in Law and Public Policy when SEC Chair Christopher Cox speaks tonight on government investment in the private market. In today's American, I discuss the history of the NLCPI.

Around the web, December 5

  • Newly formed Democratic Judicial Campaign Committee will no doubt do its bit to entrench partisan politics in the judiciary [Justice at Stake]
  • Plaintiff's bar back on the offensive scoring legislative wins on Capitol Hill [Bloomberg]
  • South Carolina high court tinkered with outcome of bar exam. Improperly? [Adler @ Volokh, Chen]
  • Turns out there's a National Association of Subrogation Professionals to talk up the plus side of insurer litigiousness [WSJ, sub-only]
  • "Tidal wave" of new lawyers approaches in New York [NY Sun]
  • Did/should Wisconsin nurse's fatal medication error rise to the level of criminality? [The Hospitalist via KevinMD]

Legal ethics highlights of 2007

John Steele at Legal Ethics Forum once again presents his nominees.

No need at all to worry about how judges dispense leftover money after class actions -- you've got the assurance of the New York state bar that the money won't go to dubious causes or litigator-driven slush funds. What, you say you're still not reassured?

ABA Journal "Blawg 100" controversy

The selection of sites, as well as the whole traffic-building beauty-contest genre that it may be seen as typifying, has stirred up a considerable volume of discussion: see Giacalone, Elefant, the unaccountably omitted Turkewitz, and Greenfield, as well as links from there.

On a strictly personal level, let me make clear that any negative or sniping thoughts of mine about the Blawg 100 contest will be vented here at Point of Law (which, sigh, is lagging behind in 6th place of 13 sites at the moment) while any admiring, upbeat comments will be saved for my other site, Overlawyered (which I'm happy to say is narrowly in #1 position at the moment in the same general category).

SEC nixes proxy access

Gretchen M. at the Times is not at all happy, but Profs. Ribstein and Bainbridge, and also DealBreaker, approve.

Wall-to-wall Scruggsblogging

...continues at David R.'s blog, and at mine.

Shopping for Judge Weinstein?

A lengthy story by Joseph Goldstein in today's New York Sun (via WSJ Law Blog) explores how plaintiffs' attorneys in gun and tobacco cases have used the related-case doctrine to judge-shop for Judge Weinstein, a phenomenon I noted in my March Liability Outlook.

A report from the Heritage Foundation impressively catalogs abuse of the FMLA reported in a recent request for information by the Department of Labor. Of note is this quote from the Chamber of Commerce:

[A]bsenteeism attributed solely to FMLA leave on any given day was estimated to be about 5 percent, and at least one employer overstaffed by 10 percent to accommodate the absence rate due solely to FMLA leave. However, many managers reported that cer�tain types of days, including the day after Super Bowl Sunday or the first day of hunting season, had much higher absentee rates for those employees with an FMLA medical certification. There was a high degree of consistency in high absentee rates linked to specific holidays reported across companies and industries.

The Department of Labor also documents some stunning abuses, including an employer where 30% of the workforce has an active medical certification for FMLA leave, leading to disruptive unscheduled intermittent leave.

FMLA abuse during the holidays can be especially problematic for service industries that already have to restrict vacation usage during peak times; it means that dishonest employees are effectively stealing vacation time from honest employees.

"An unbounded scale, but no modulus"

Eliezer Yudkowsky at Overcoming Bias compares the nature of certain jury deliberations with the task of observers instructed to estimate the loudness of certain sounds without being given a reference sound ("modulus") with which to compare them: "A jury award for punitive damages isn't so much an economic valuation as an attitude expression -- a psychophysical measure of outrage, expressed on an unbounded scale with no standard modulus." (via Haspel).

NSW Dust Diseases Tribunal

How a specialized court to handle claims arising from asbestos and other injurious dusts has operated since 1989 in Australia's largest state, New South Wales (official LawLink site and FAQ; 2007 regulation, Law Society site; Wikipedia page). Note that the tribunal hears civil claims and is an entirely separate entity from what is known as the Dust Diseases Board, which compensates industrial dust ailments on a no-fault workers' comp model. In the United States, by contrast, neither the courts nor the workers' comp system have developed specialized branches devoted to this type of claim.

P.S. Ted writes to point out, "Depends on your definition of 'specialized.' There's no formal 'Asbestos Court,' but most jurisdictions (including the federal courts) consolidate their asbestos dockets and place them under a single judge -- Madison County notably stopped being a magnet jurisdiction for asbestos cases when they switched who the asbestos judge was."



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.