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February 2009 Archives


Kansas Governor Kathleen Sebelius, a Democrat, has agreed to become Secretary of Health and Human Services in the Obama Administration.

Sebelius served as executive director and chief lobbyist for the Kansas Trial Lawyers Association (now Kansas Association for Justice) from 1977-1986. Before being elected governor in 2002, she also served as Kansas Insurance Commissioner, an elective office.

During the 2007 legislative session, Sebelius vetoed S.B. 55, which -- in her terms -- sought to exempt the entire health care industry from the Kansas Consumer Protection Act. She signed a follow-up bill, H.B. 2451. From her office's news relase:

HB 2451 amends the Kansas Consumer Protection Act (KCPA) regarding health care providers. Under this bill, the KCPA will not provide a private cause of action or remedy against a licensed health care provider for personal injury or death resulting, or alleged to have resulted from medical negligence. This bill is the compromise that was reached after SB 55 was vetoed.

Well, it's not as if any health care reform package coming out of the Obama Administration was going to embrace medical malpractice reform.

"Road map" on NYC 9/11 dust claims

In the litigation filed on behalf of more than 9,000 plaintiffs, Southern District of New York Judge Alvin Hellerstein has appointed Profs. Henderson and Twerski as special masters; they've picked 225 more-serious pilot cases of which six "will soon be selected for what are formally scheduled to be trials but are really a path toward settlement". [NYLJ]


Nonpracticing New Jersey physician Joseph Piacentile "now makes a living suing drug companies," and the new action in which his name figures against Forest Laboratories follows earlier suits he's helped instigate against Medco Health Solutions, Bristol-Myers Squibb, and Cephalon Inc. [Frankel/American Lawyer]

Around the web, February 27

  • Voices of moderation, trial lawyer dept.: Atlanta tort attorney likens Georgia state damages caps to steps taken by Russia's Putin to curb trials of "crimes against state" [Ken Shigley]
  • Prosecution of W.R. Grace execs in wake of environmental offenses against populace of Libby, Mont. is being liveblogged in joint project by U. of Montana law, journalism schools [site via TortsProf]
  • "Study Finds Firms With Market Power Don't Impose One-Sided Terms on Consumers in Software License Agreements" [Consumer Law & Policy Blog, and all credit to them for highlighting research findings that will discomfit some of their co-thinkers]
  • EFCA/card check could have some of its biggest impact in "right-to-work" states [Carter @ ShopFloor]
  • Uh-oh: new push for more lawyer-driven voir dire, easier bouncing of juror prospects "for cause" http://is.gd/hs6p [Anne Reed, a ways back]
  • CPSIA vs. Irish step dance costume makers [Overlawyered]


William Roberts Wilson, who was done out of his share of asbestos fees by Dickie Scruggs and lost the ensuing litigation (federal prosecutors say) because Scruggs's agents had reached the judge, says the bribe money Scruggs paid should be considered his rightful property and refunded. Former Mississippi tort luminary Joey Langston, who says he was gypped himself of his proper share of the payoffs in the Scruggs II (DeLaughter/Peters) bribery case, is backing Wilson up.

Uninjured patients of California, unite!

Russell Jackson has a great post on class action litigation on behalf of uninjured plaintiffs, his example at hand being a California lawsuit on behalf of a class of patients not hurt by Lasik surgery (via Beck & Herrmann). It seems the surgery had gone on with the use of a laser tool that had not yet been approved for that use by the Food and Drug Administration, though it subsequently was. In order to sidestep individualities that might defeat class treatment, the class was defined specifically to include only persons who were entirely unharmed by the successful surgery, and merely, you know, wanted money on the principle of it all.


In an interesting review of the lead paint public nuisance cases, the veteran analyst says pressing the courts into service as surrogate regulators didn't work well there.

Around the web, February 26

All-law-blog edition:


It came through for Jere Beasley again, per Alison Frankel at American Lawyer: "A state court jury in Tuscaloosa hit the Novartis subsidiary Sandoz with $28.4 million in compensatory and $50 million in punitives." Representing the state of Alabama in the action, Beasley is getting a 14 percent contingency -- very much as if a prosecutor were allowed to pocket a share of fines. Sandoz, which in this case was sued in its generic-drug capacity, is the fourth pharmaceutical defendant to be knocked over in the Alabama campaign, which Beasley is also rolling out elsewhere, getting himself hired by a half-dozen other states to sue over drug pricing sins.

More on Scalia "honest services" dissent

From Rick Hills at Prawfsblawg:

The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway over the political process in harmful and even corrupt ways, all in the name of fighting corruption. ...

That patronage politics are now a criminal offense in Chicago is surely eye-opening. That U.S. Attorneys can determine when patronage politics are criminal, based merely on their own sense of ethics laced with miscellaneous rules on disclosure and conflict of interest, is simply wacky. ... Have all of these state and local rules now been transformed into political weapons for use by U.S. Attorneys -- political appointees themselves and often aspiring politicians -- against their political rivals?

A Crime for Every Controversy

It's like clockwork: Some new scandal pops up in the news, and Congress comes up with legislation to criminalize it.

The latest: The Captive Primate Safety Act, which passed the House yesterday. "Consideration of the needed legislation comes just one week after a woman was critically injured in a vicious chimpanzee attack in Stamford, Connecticut - leaving no doubt that the danger of nonhuman primates in homes and to communities must be addressed," say its sponsors, Reps. Earl Blumenauer and Mark Kirk.

Oddly enough, the law actually doesn't prohibit keeping chimpanzees as pets; instead, it amends the Lacey Act to impose restrictions on their importation and transportation across state lines. Lacey Act violations are punishable by criminal fines and serious jail-time.

On some days, it does seem like the front page of the New York Post sets Congress's criminal law agenda.


Last year New York trial judge Herman Cahn ruled in favor of class-action giant Milberg in a high-profile dispute over whether it could share its winnings from past cases with disgraced felon and former name partner Melvyn Weiss, the firm's former driving force. Judge Cahn stepped down from the New York bench in December, and now it develops has been hired by Milberg as its "distinguished" new attorney. And you -- with the Wall Street Journal's editorialists today -- certainly have a suspicious mind. There probably won't be any shortage of funds with which to pay the former jurist: an American Lawyer headline last month read "Milberg Among Plaintiffs Firms Awarded $120 Million in Xerox Class Action". (cross-posted from Overlawyered)

Obama and those "medical" bankruptcies


Many supporters and critics alike of state-level punitive damage caps might be inclined to predict that such caps will be more commonly enacted after large and noteworthy awards. However, Jonathan Klick (Pennsylvania) and Catherine Sharkey (NYU) examine data and find little detectable correlation of this kind, raising that possibility that state lawmakers enact them more as a prophylactic than as a palliative; indeed, state legal cultures in which high awards are endemic might prove equally if not more resistant to caps than states in which they are rare. An incidental but arresting finding: Republican-party vs. Democratic-party control of the lawmaking process may make less difference in outcomes than most would assume. [SSRN via TortsProf]


Slate's "BizBox" blogger writes that the Lilly Ledbetter Fair Pay Act "only has the potential to harm" those businesses "who, frankly, deserve to be harmed".


The WSJ praises a bill supported by Florida Attorney General Bill McCollum to limit the possibility of jackpot fees when private lawyers team up with the state AG's office, a practice in which his state had been among the worst offenders during the tobacco heist:

The Florida bill, which would cap attorneys fees at $50 million, would hardly consign lawyers to a life of penury. Outside counsel could receive contingency fees of 25% for the first $10 million, 20% of the next $5 million, 15% for the following $5 million and so on. We're guessing there are still attorneys willing to work at those rates. The bill would also require competitive bidding and make contracts transparent to voters by posting them on the Attorney General's Web site.

The bill faces ferocious opposition in Tallahassee, however, from a lobby that frequently gets its way there.


Idaho may restrict government employers in the state from allowing automatic payroll deductions that finance union political activities, the Supreme Court ruled today. In Ysursa v. Pocatello Education Association, a group of unions sued the state, arguing that the limitation on deductions stifled their First Amendment rights. Reversing the Ninth Circuit, the Court held that the prohibition merely allows the state to avoid subsidizing political activities and does not restrict them in any way. So no strict scrutiny, and so no problem.

Unions have a long history abusing systems like automatic payroll deductions to force workers into subsidizing their political activities, and laws like Idaho's ensure that workers do not have to subsidize political speech with which they disagree. So count today's decision as a big win for workers' rights.

Around the web, February 24

  • Affidavit of merit laws could curb low-quality suits. And maybe low-quality defenses too? [Ross Jurewitz, San Diego Injury Lawyer]
  • "Slums of Hope -- For displaced peasants, the world's vast urban ghettos are a gateway to a better future." [Husock, City Journal]
  • White paper on defending the California product liability case [Cal Biz Lit]
  • More on push for tort reform in South Carolina [Pero]
  • "Election Law Litigation Has Doubled Since 2000" [Coyle, NLJ]
  • Brilliant idea from Connecticut politicos: regulate hedge funds right out of the state [Christopher Fountain]


Today marks the U.S. Senate's annual observation of George Washington's birthday, commemorated since 1862 with the reading of Washington's Farewell Address. The honor this year goes to U.S. Senator Mike Johanns (R-NE).

We note this passage in the Farewell Address:

To the efficacy and permanency of your Union, a government for the whole is indispensable. No alliance, however strict, between the parts can be an adequate substitute; they must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a constitution of government better calculated than your former for an intimate union, and for the efficacious management of your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.

Our emphasis.

Soon after the reading of Washington's address, the Senate proceeds to a debate on S. 160, the bill granting Washington, D.C., (and Utah) a vote in the U.S House.


It's unconstitutional, and that's that? Maybe not. In a piece for the Heritage Foundation, Nat Ward and I consider, among other things, whether anyone would actually have standing to challenge the "District of Columbia House Voting Rights Act," assuming Congress votes to pass the buck (cl. 3) to the courts. Short answer: Don't count on it.

Full vote for D.C. in Congress?

There's nothing much wrong with the idea, except, of course, for the text of the U.S. Constitution.


"Honest services" fraud, writes Justice Antonin Scalia in a sharp dissent (PDF) to a denial of certiorari today, lacks any "coherent limiting principle" to prevent its "abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct." The 28-word mail-fraud statute's fundamental vagueness, he concludes, may itself be illegal, making the Court's refusal to squarely confront its meaning and constitutionality "quite irresponsible."

Update: Commentary on Scalia's Sorich dissent from Orin Kerr and my Heritage colleague Brian Walsh.

Around the web, February 23

  • "How a Few Radical Employment Law Changes Will Create Lots of Work for Attorneys" [NLJ]
  • Discussion of what to do with teetery banks often totally misses issue of their holding companies [Tyler Cowen, MargRev] "Regulators to Banks: We Want You To Lend, But..." [Bank Lawyer's Blog] TARP "a lousy program", says CEO of one of the Midwest's largest banks [same]
  • Stimulus bill massively expands health-privacy law, with state-AG enforcement and damage awards for patients whose privacy is impaired: lots more HIPAA liability and litigation coming up [Health Law News][HIPAA Blog]
  • More stimulus woe: "Sweeping New Whistleblower Law May Cover All Employers Who Receive Stimulus Funds" [Morrison & Foerster, PDF, JD Supra]
  • "Our view: Latest efforts to roll back Maryland's malpractice reforms are misguided" [Baltimore Sun editorial]
  • ABA views on medical device pre-emption good for prosperity of litigators, not so hot as national policy [Hillyer, D.C. Examiner]

Bad legislation in Sacramento

It marches on and on: "Assembly Bill 335, authored by Assemblyman Felipe Fuentes (D-Los Angeles), would invalidate any mandatory choice of law clause or forum selection clause in an employment contract in California." [California Civil Justice Blog] After all, why give parties a chance to reduce the uncertainties of litigation in advance? It's not as if we want to avoid tactical forum-shopping or anything.

More: Larry Ribstein provides a more extended analysis, with an equally critical conclusion, noting that he takes up these issues in his and Erin O'Hara's new book, The Law Market (first chapter and summary here).

"Nuance" is something this bill [AB 335] avoids assiduously. Many states void some choice of law and forum clauses that would undercut some kinds of mandatory provisions. This bill applies to any employment contract. Even to the ceo of a Fortune 500 company? It protects not only mandatory state laws but also default rules. This prevents interstate firms from getting standardized interpretation of their contracts even where this would not interfere with state policy.

Not only that, the bill includes an escape clause that is sure to provide ample grist for litigation:

(d) Nothing in this section affects the right of an employee to voluntarily agree to a choice of law or forum selection provision that is not required as a condition of employment and that is the subject of independent consideration.

He notes that the bill has already gone down once, so perhaps the march of bad legislation in Sacramento is not so inevitable after all.

"Radical" suggestions for med-mal reform

Loser-pays may be one of the milder ones offered by emergency room blogger White Coat.

Quin Hillyer on trial lawyer earmarks

The big expansion of whistleblower provisions is part of a pattern, according to the D.C. Examiner commentator.

Surge in single-state class actions

That's been one of the effects of the federal Class Action Fairness Act (CAFA) with its restrictions on state-court handling of multi-state class actions, as a new study confirms.

Blawg Review #199

It's up at Mark Bennett's Defending People, and is being praised as a model of the best-of-the-legal-blogs traveling-carnival genre.

Around the web, February 20


Senator Patrick Leahy of Vermont has introduced a new expansion of federal criminal law in S. 386, the Fraud Enforcement Recovery Act, which has already drawn a letter of opposition (PDF) signed by -- note well the interesting breadth of opposition -- both the National Association of Criminal Defense Lawyers and the Heritage Foundation. An excerpt:

Among the over 4,450 criminal offenses already in federal law, Congress has already enacted all of the tools prosecutors need (and far more) to prosecute any criminal activity associated with the subprime market or the current financial crisis. In fact, analysis of the federal criminal code demonstrates that the federal government is sufficiently armed to prosecute any criminal conduct that has a federal nexus and may be related to the market crisis.


Relatedly, we've created a new post category, "Criminal Law and Prosecution", to reflect the site's longstanding interest in this area. We've begun to populate it with a selection of the site's extensive past coverage of episodes like the Justice Department's Thompson and McNulty memos, the Conrad Black, Enron Task Force and backdating prosecutions, the inappropriate use of criminal prosecution as a way of accomplishing essentially regulatory objectives, extraterritorial application of U.S. criminal law to overseas transactions, and many like topics.

Criminal trial of W.R. Grace executives

The charges are based on the executives' failure to take stronger steps to protect the population of Libby, Montana, from the dispersal of mined vermiculite naturally containing asbestos. It is being widely watched as a test case in the application of criminal law to environmental and product-related injury; the New York Times account quotes lawprof and friend of this site Lester Brickman.

Around the web, February 19

  • Did auditors of funds that lost money with Madoff have a duty to check whether/warn that he was using bottom-of-barrel accountants? [WSJ law blog]
  • Retroactivity, the people's friend? "Judge: Exxon May Be Sued for Natural Resource Damage Done Prior to Passage of N.J. Spill Act" [NJLJ, earlier]
  • Florida regulators stage tantrum against insurers seeking to leave its underpriced, overrisky homeowners market [CEI Open Market, earlier]
  • What the new TARP rules on executive compensation mean in practice [Hodak Value]
  • "Another Welding Rod Defense Verdict" [Cal Biz Lit]
  • Whistleblower bar wins big in stimulus bill with massive new provisions covering local governments, federal contractors [Whistleblower Law Blog]

New York Times on CPSIA

After months of ignoring the issue, the paper of record runs an unusually idiotic editorial on the Consumer Product Safety Improvement Act, and I let them have it with both barrels at my other blog.

Obama housing plan includes 'cram down'

President Obama unveils his latest plan for restoring the economy through government action later today in Mesa, Arizona, this time focusing on housing. The Department of Treasury has already posted an executive summary to go along with the announcement, and the President has indeed decided to include "cram down" provisions to let bankruptcy unilaterally modify contracts. From the executive summary:

Allowing Judicial Modifications of Home Mortgages During Bankruptcy for Borrowers Who Have Run Out of Options: The Obama administration will seek careful changes to personal bankruptcy provisions so that bankruptcy judges can modify mortgages written in the past few years when families run out of other options.
  • How Judicial Modification Works: When an individual enters personal bankruptcy proceedings, his mortgage loans in excess of the current value of his property will now be treated as unsecured. This will allow a bankruptcy judge to develop an affordable plan for the homeowner to continue making payments. To receive judicial modifications in bankruptcy, homeowners must first ask their servicers/lenders for a modification and certify that they have complied with reasonable requests from the servicer to provide essential information. This provision will apply only to existing mortgages under Fannie Mae and Freddie Mac conforming loan limits, so that millionaire homes don't clog the bankruptcy courts.

Thus, the sanctity of contracts no longer holds, and especially not for people with jumbo mortgages.

Todd Zywicki of the Mercatus Center at George Mason University testified last month in Congress on the topic. His testimony is available here, as summarized:

As the nation currently faces a foreclosure crisis of historic proportions with many homeowners in grave financial troubles, the desire to "do something" to address this crisis is understandable. It is thus tempting for law makers to amend the Bankruptcy Code to permit modifications of home mortgages since it appears not to require government expenditure. However, the cost of modifying mortgages in bankruptcy, known as "cram down" in bankruptcy lingo, will have enormous costs not only on aspiring future homeowners, but on any American who uses any kind of credit. This written testimony, prepared for submission to the House Subcommittee on Commercial and Administrative Law, elaborates that a "cram down" amendment will lead to an increase in the risk of home mortgage lending, and a dramatic increase in Bankruptcy filings, which will in turn have spillover effects on other consumer credit facilities.

See also Zywicki's February 13th op-ed in the Wall Street Journal, "Don't Let Judges Tear Up Mortgage Contracts."

UPDATE: The relevant legislation in the House is H.R 200, to amend title 11 of the United States Code with respect to modification of certain mortgages on principal residences. Sponsored by Rep. John Conyers (D-MI), the bill was reported out of the House Judiciary Committee on a 21-15 vote.

Around the web, February 18

  • "Plaintiffs Insist Vaccine Court Rulings in Autism Litigation Are Not the End of the Road" [AmericanLawyer.com]
  • Ted Frank: "The TARP Trojan Horse" [American Spectator] Camel's nose unwelcome in tent? "Connecticut Banks Saying No To TARP" [Hartford Business]
  • "'Right to Work' Is No Protection From Card Check" [U.S. Chamber, ChamberPost]
  • What happens in securities arbitration? An overview [SECLaw.com]
  • The plaintiff's bar's case against federal preemption in video form, for those who like that sort of thing [Center for JD/Alliance for Justice]
  • A reminder: you can follow Point of Law on Twitter here, primarily a feed of new posts on the site, but also including some items that haven't appeared in this space.

Stimulus bill pay caps

It's fair to say that Prof. Ribstein is not a fan.


The newest entry in our Featured Column series is Virginia Postrel's must-read meditation from last week on the Consumer Product Safety Improvement Act and its high costs, the "glamor" of government regulation at the moment as the solve-all and cure-all for public fears, and the disdain of some in the prestige media for controversy over a law whose harshest effects are falling on sectors of the economy with which they may be only vaguely familiar, such as thrift and consignment stores and their shoppers, apparel and toy crafters, motosports dealers, secondhand traders in children's books, and so forth.

Around the web, February 17

International and comparative law edition:

  • Asbestos in the U.K.: in wake of Law Lords ruling, British government considers compensation for asymptomatic pleural plaques [Guardian, Global Tort (defense-oriented "Commentary on Torts, Disputes and Insurance"), earlier]
  • "Will former Bush administration officials be prosecuted in foreign countries?" [E. Posner, Volokh] The Israeli military? [Keitner, ConcurOp]
  • Jury trial in retreat in Russia and Britain, expanding in China, South Korea and Japan [The Economist via Genova]
  • Latest round in Ecuador vs. Chevron: oil company protests court-appointed expert's revamping of damages upward to $27 billion [Reuters, earlier]
  • Attorneys for 16 Indiana National Guardsmen sue contractor KBR over exposure to toxics from Iraq water pumping plant [CNN]
  • Academic applauds Alien Tort Statute for bringing international law into U.S. courtrooms [more Keitner via ConcurOp]

"'Secret' life insurance triggers suits"

Some life insurance products sold to large employers on the lives of their employees have little or nothing to do with traditional reasons for the purchase of life insurance, but instead are meant to allow the employers to pursue tax and investment goals. In the course of doing so, they supposedly bet on the lives of their lower-level employees -- hence the terms "dead-peasant" or "janitors'" insurance. Lawyers have begun suing on the theory that "COLI" or "BOLI" (corporate-owned or bank-owned life insurance) is an imposition on the employees in question (who neither benefit from nor pay into this peculiar line of insurance, and are commonly not much aware that it is going on at all). Expect more such litigation to be rolled out soon, against large banks in particular. [NLJ]

Securities arbitration tightens

"The securities industry's self-regulator, the Financial Industry Regulatory Authority (Finra) has made it much more difficult for securities firms to obtain summary dismissals in disputes brought by investors". [Workplace Prof]

"Stimulus bill contains H1B restrictions"

Because the surest way to revive the banks is to keep them from hiring their choice of specialized talent from around the world -- or something like that -- the stimulus bill will make it a lot harder for recipients of bailout money to use the H1-B visa program, a key pathway by which American firms avail themselves of highly trained technical staff. Sens. Charles Grassley (R-Ia.) and Bernard Sanders (I-Vt.) deserve the blame.

"2008 Litigation Trends in Canada"

From the law firm of Faskin Martineau (via Wise Law):

Canada is more litigious than most believe, according to a study commissioned by leading Canadian law firm Fasken Martineau. Over 40% of respondent companies indicated they were involved in some form of litigation over the prior year.

Labour and employment issues rank the highest in the type of dispute that most concerns Canadian companies according to the Fasken Martineau study. Contracts, personal injury and product liability rank second, third, and fourth, respectively.


The circuits are split, making it likelier that the Supreme Court or Congress will act to resolve the issue.

Around the web, February 15

Science and the law edition:

"Research agendas"

Jason Mazzone at Concurring Opinions notes that whether one is interviewing applicants for junior faculty positions, whose claimed research interests often seem to take the form of "a conclusion that has already been drawn without the benefit of research", or attending the Law and Society conference on the theme of "Law, Power, and Inequality in the 21st Century," "it is little wonder that the prospective (or new) professor might get the message that promoting an agenda is what legal scholarship is about".

Trashing pre-1985 children's books

I've got a new opinion piece up at City Journal on one of the most startling and dismaying results of the Consumer Product Safety Improvement Act (CPSIA). It builds on my coverage of CPSIA in recent days and weeks at my other site, Overlawyered.


If so, it would make for a dramatic expansion of workplace liability; while Michael Fox is concerned the new law will be read that way, Ross Runkel believes it will not.

Tougher rent controls for NYC?

Megan McArdle sounds the alarm on a truly insane development up in Albany: "This bill, if it passes the Senate, will represent the third time that New York has reneged on its promises not to control new housing."

Around the web, February 13

  • Parol evidence rule usually seen as helping defense side in employment litigation, but not always [Workplace Prof Blog]
  • "Businesses' Data Collection: What Legal Risks Exist and Who Can Sue If Breaches Occur?" (WLF, PDF)
  • "It's hard for women lawyers to hear, but it's true": male lawyers tend to do better in mock jury experiments [Anne Reed, Deliberations]
  • Upcoming Feb. 24 webcast: Liability of Professionals in the Financial Crisis [Securities Docket]
  • NYU School of Law magazine: Roderick Hills and Catherine Sharkey on pre-emption [via Mass Tort Lit]
  • Push for broad tort reform package in South Carolina [S.C. Civil Justice Coalition]


Finally, today, the U.S. Court of Claims ruled that combined measles-mumps-rubella vaccines are not to blame for children's autism. The special panel of judges found, as they had to, that the scientific evidence was overwhelmingly contrary to the 5000-odd plaintiff parents' claims -- and backed years of science that found no risk.

Hopefully this tragic search for reasons by the aggrieved parents will now change directions.

Illinois trial lawyers' agenda

Besides knocking out medical malpractice caps at the state's high court, they'd like the state legislature to vote them a generous prejudgment interest law.

Around the web, February 12

  • California cities' and counties' is the only lead paint nuisance suit left standing [Calif. Civil Justice Blog]
  • Retailers in "panic" over court's last-minute reinstatement of phthalates ban [WSJ Law Blog; more CPSIA coverage]
  • Who needs skilled immigrants, anyway? Stimulus bill bars bailout beneficiaries from hiring international talent through H-1B visa program [Cowen, MargRev]
  • Home field advantage for state of Alabama and Jere Beasley against Sandoz in drug pricing lawsuit [AmLaw Daily]
  • Anti-vaccine figure Andrew Wakefield, accused of various impostures, wins Olbermann "Worst person in the world" award [Orac] But alas... [follow-up]
  • First post-Engle tobacco trial begins in Florida [Childs]

Georgia judge strikes down med-mal caps

Plaintiff's lawyers are jubilating; the case now heads to the Georgia Supreme Court.


From The Hungry Horse News, "Recreation bill clears House":

The Montana Recreation Responsibility Act, or House Bill 150, is sponsored by House District 3 legislator Dee Brown and requires that people who engage in potentially dangerous activities "assume the inherent risks in that sport or recreational opportunity and (are) responsible for injuries and damages."

The bill runs the gamut of sports, from rodeos to rafting, baseball to skiing. Brown introduced a similar bill in 2005 that had plenty of local support -- particularly from the rafting industry -- but it was never passed.

The bill and its legislative history are available here.

The Montana Trial Lawyers Association is opposed, claiming it's unconstitutional. Not sure why -- federal authority over navigable waterways?

Governor Brian Schweitzer is quite the friend of the plaintiff's bar -- recall his chortling at the AAJ convention last summer? -- so we'll be interested to see whether the bill makes it to his desk.


Employee Free Choice Act roundup

This ominous piece of legislation, whose misleading name is not the least of its insults to the body politic, hasn't gone away, even if we've been tending to neglect it lately:


  • Friend of this site and perennial libertarian favorite lawprof Richard Epstein details "The Case Against EFCA" [SSRN]
  • Similar law already in effect in Ontario might foreshadow how card-check could work [Dolan Media] But would Americans be happy trading our current labor-management state of affairs for the very different and far more union-friendly climate that prevails in Canada, where a major university (York U.) has been enduring a staff strike that has shut classes for months? [Western Standard, Doorey]
  • Public polls, on this issue even more than most, are manipulable through the wording of questions; and why is Atlantic's Marc Ambinder taken in by union spin re: workers' "choosing" to dispense with secret ballots? [Michael Fox, Mickey Kaus, Jennifer Rubin]
  • Fourth Circuit opinion cited by SCOTUS in 1969: "It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a 'card check,' unless it were an employer's request for an open show of hands. The one is no more reliable than the other. No thoughtful person has attributed reliability to such card checks."
  • Unions claim workers can still obtain secret ballot if enough of them want it. Funny, cards themselves don't seem to inform them of that option [IBEW, Machinists courtesy Eric B. Meyer]
  • The Hill: "Wary of card-check bill, tech lobbying against it";
  • Some other recent commentaries [Gary Becker and Richard Posner at Becker-Posner Blog; George's Employment Blawg; Mary Rogers and Adin Goldberg of Day Pitney at Metro Corp. Counsel]
  • Finally, Georgetown's Michael Gottesman responds to an earlier Epstein piece (in the WSJ) arguing that EFCA is unconstitutional ("Epstein's imagined constitutional difficulties haven't the remotest chance of gaining judicial acceptance") and Epstein posts a rejoinder.


Labor-leaning Democrats' latest argument for card check.

Dan Seligman, 1924-2009

Farewell to one of my favorite magazine writers, whose "Keeping Up" column at Fortune was a small miracle of pointed wit and concision.

Debate on FDA preemption

Richard Epstein (Chicago) versus Rick Hills (NYU), moderated by John McGinnis (Northwestern), sponsored by the Federalist Society, on audio and video (via Stier/Mass Tort Prof).

Google Latitude and employer liability

The very neat new application that lets you watch where your friends are real-time on a map might lead to unexpected liability for unwary employers.


The Washington Examiner editorializes against the Senate provision empowering state AGs -- quite possibly in concert with outside private lawyers working for a percentage of the swag -- to seek cash damages under the HIPAA health-privacy law.

Around the web, February 9

  • Mississippi: Dickie Scruggs said to plan second guilty plea, this time in Peters-DeLaughter matter [NMC @ Folo]
  • Biden aide Mark Gitenstein, tapped for Office of Legal Policy, is target of latest plaintiff's bar campaign because he's lobbied for the U.S. Chamber [slanted L.A. Times via Drum Major Institute, David Arkush of Public Citizen acting as point person; Gitenstein defended by prominent liberals]
  • Mass tort actions brewing against Merck over Gardasil cervical cancer vaccine? [Burch/Mass Tort Lit Blog]
  • Credit crisis litigation wave enters third year [Kevin LaCroix, D & O Diary]
  • Serve the papers on your way out: Ledbetter legislation likely to offer greatest litigation incentive for employees at brink of retirement [McCormick/Prawfsblawg]
  • Two papers by Robert Leflar on medical malpractice and liability in Japan [TortsProf]

Roots of the vaccine-autism panic

Dramatic new allegations of data falsification in the Times (U.K.) against British antivaccine crusader Andrew Wakefield, who, unbeknownst to many, had an ax to grind when he sounded the (now-debunked) alarm against the MMR shot: he was working with personal injury lawyers hoping to build a case against the vaccine manufacturers. (Mike Dunford, Orac, David Bernstein @ Volokh)

Take issue with "Buy American"...

...and the AFL-CIO will impugn your patriotism.

HIPAA and medical advancement

The health-privacy law is hindering medical research, and the Institutes of Medicine have some reform ideas (via HIPAA Blog).


The decision by Ohio AG Richard Cordray to drop the state's lawsuit against paint manufacturers for lead contamination reminds us to check back on another attorney general's public nuisance suit -- the one brought by North Carolina AG Roy Cooper against the Tennessee Valley Authority for air pollution caused by the TVA's coal-fired power plants.

(Earlier post.)

Cooper appears to have won. On January 13, U.S. District Judge Lacy Thornburg of the Western District of North Carolina ruled in the state's favor and ordered specific steps the TVA must take. The TVA's latest 8K filing is quick and to the point:

On January 13, 2009, the United States District Court for the Western District of North Carolina issued its decision in the lawsuit brought by North Carolina against TVA alleging that TVA's operation of its eleven coal-fired power plants in the states of Tennessee, Alabama, and Kentucky constitute public nuisances. The court held that emissions from the Bull Run Fossil Plant ("Bull Run"), the Kingston Fossil Plant ("Kingston"), the John Sevier Fossil Plant ("John Sevier"), and the Widows Creek Fossil Plant ("Widows Creek") constitute a public nuisance. The first three plants are located in Tennessee, and Widows Creek is located in Alabama. The court declined to order any relief as to the remainder of TVA's coal-fired plants, holding that their emissions did not significantly impact North Carolina.

The judge goes on to order specific actions regarding flue gas desulfurization systems, scrubbers, and nitrous oxide emissions. Cooper issued a statement hailing the ruling's effects on "our air, our health, and our travel and tourism economy."

Rate payers will pick up the costs, obviously; already the TVA had ordered $1 billion in pollution controls for three of the plants. From AP: "The nation's largest public utility, already paying out $1 million a day to clean up a massive coal ash spill in Tennessee, said expenses could rise even more if it has to meet a federal judge's accelerated deadline for reducing smokestack pollutants blowing into North Carolina."

The Tennessean has had excellent coverage, including background materials, to which we link from the main story, "TVA must limit plants' pollution


The ash spill has certainly colored coverage and commentary on the ruling, and the New York Times reached for the grand conclusion in an editorial, "Collapse of the Clean Coal Myth."

Around the web, February 8


The Cardozo professor on an area of litigation we've covered a number of times: "The appellate decisions upholding cash balance pensions against the claim of age discrimination are unconvincing. Nevertheless, these decisions reach the proper result as a matter of pension policy." (via Workplace Prof).


A news release from the office of Ohio Attorney General Richard Cordray, "CORDRAY DISMISSES LEAD PAINT LAWSUIT":

(COLUMBUS, Ohio) - After careful consideration, Ohio Attorney General Richard Cordray today voluntarily dismissed the lead paint lawsuit filed by former Attorney General Marc Dann in April 2007. This lawsuit was pending in the Franklin County Court of Common Pleas against ten paint manufacturers and was focused on abatement of lead paint throughout Ohio.

"I understand and strongly agree that exposure to lead paint is a very real problem," said Attorney General Cordray. "But I also know that not every problem can be solved by a lawsuit." After assessing the law, facts, and adverse legal rulings in these types of cases nationally, the Attorney General concluded that those at risk - and Ohio's economy - would be best served by focusing on how public/private partnerships can be enhanced to address any existing problems with lead paint exposure.

Very welcome, although a predictable political move. Given the Rhode Island Supreme Court's dismissal last year of the state's public nuisance suit against paint manufacturers, followed by the city of Columbus' dropping its suit, and other dismissals across the country, Ohio's suit was a sure loser, legally AND politically.

Besides, it was Marc Dann's idea.

UPDATE: Jane Genova at Law and More notes Cordray's decision and brings us up to date on the last of its kind litigation, Santa Clara County, now under review at the California Supreme Court.

CPSIA, collateral and Sarbanes-Oxley

What happens when a law like CPSIA suddenly renders valueless large stocks of inventory of children's products, amounting to tens of thousands or even millions of dollars at a given company? One result, notes manufacturer/activist Rick Woldenberg, will be to throw many businesses overnight into default on bank loans that are secured with inventory as collateral. Another will be to present publicly held companies with sudden issues of Sarbanes-Oxley exposure. Have their public disclosures of the losses prompt and comprehensive enough?

With yesterday's court decision making it unlawful to sell children's goods containing certain phthalates as well as lead after next Tuesday, the question for many retailers (and some manufacturers) will be what to do with inventories whose lead- or phthalate-containing status is unknown and that have not been tested to verify the substances' absence. A legislative bulletin from the Toy Industry Association says, "TIA has learned that some large national retailers - noting the stay on testing and certification and the difficulty in obtaining information on older inventory - are presuming that product already on shelves does not violate CPSIA requirements unless specifically advised otherwise by the Commission."

In other words, despite the $100,000-per-instance penalties on the books, they're going to hope they get lucky.

"Overselling Law School"

Students seem to be catching on that law school isn't for everyone, notes Charlotte Allen at the Manhattan Institute's academic-reform website Minding the Campus.

"Can the ILO Be Saved From Itself?"

"The International Labour Organization is veering far from its core mission."

Risks overblown? No, that never happens

Relevant to the renewed push for the misguided "Precautionary Principle", this jaw-dropping assertion (PDF) from a group of law professors affiliated with the Center for Progressive Reform, expressing concerns over the Cass Sunstein nomination:

It is difficult to think of a single public health or environmental threat that with the benefit of additional research has not proven even more dangerous over time.

David Bernstein @ Volokh doesn't find it difficult to think of such instances at all:

Mercury in vaccines; Bendectin; Silicone breast implants (and medical grade silicone in general); PCBs; Asbestos in buildings; Fluoride in water; Birth control pills; Occasional marijuana use; High fat diets; Exposure to low level nuclear radiation; New carpet fumes; "Toxic waste dumps"/Superfund sites; Moderate overweightedness; Moderate alcohol consumption; Spermicides; Metal fillings (for teeth); Cancer from physical trauma; Masturbation; Predictions in the 1970s of worldwide food shortages; "Overpopulation"; Global Warming (the predictions of the level of man-made warming have decreased dramatically, even among strong advocates of the theory); Miscarriage from video display monitors; Cancer from electromagnetic field radiation; Radon; Dioxin; Pesticides commonly used on fruits and vegetables causing cancer to "eaters";

The authors of the Center for Progressive Reform declaration, for the record, are: John S. Applegate, Indiana Maurer (Bloomington); Robert Glicksman, Kansas; Thomas McGarity, Texas; Sidney Shapiro, Wake Forest; Amy Sinden, Temple (Beasley); Rena Steinzor, Maryland; Robert Verchick, Loyola New Orleans; and James Goodwin, Center for Progressive Reform.

Legal reform proposed in Georgia

Gov. Sonny Perdue's recommendations include, among other steps, assessing attorneys' fees against those who file lawsuits thrown out as without merit [Macon.com, WSB, Dan Pero at the Atlanta Journal-Constitution, Atlanta Business Chronicle].


"Go to Nevada," advises Cal Biz Lit.

Defense firm sanctioned

In Louisiana, for groundless motions to remove cases to federal court.

"Obama dictates bankers' pay"

Steve Chapman: "Our leaders in Washington didn't know how to prevent the current financial crisis, don't how to solve it, and don't know how to keep it from ever happening again. They haven't figured out how to eliminate the drag of toxic debt, stem the flood of foreclosures or revive lending. But they do know one thing: how much money bankers should make." More: Larry Ribstein, John Carney (announced measures have more sound than bite), Geoffrey Manne, Truth on the Market (notes plans to extend pay regulation to unbailed-out businesses). Contrary views: Yves Smith, Felix Salmon.


Ohio Supreme Court and tort law, cont'd

In a new paper for the Washington Legal Foundation (PDF), Bruce Mandel and James Kline of Ulmer & Berne commend the court for its greater deference to the legislature's role in shaping tort law (via Stier/Mass Tort Prof). "As a result, the landscape in Ohio for businesses and product liability defendants has improved considerably." Earlier coverage of the court is here.

Around the web, February 4

Aggregate litigation in Europe

A new issue of the Vanderbilt Law Review has two essays by familiar names on the topic: Richard Nagareda, "Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism," and Samuel Issacharoff and Geoffrey Miller, "Will Aggregate Litigation Come To Europe?"

"The SEC Should Leave Steve Jobs Alone"

Harvey Silverglate in yesterday's Wall Street Journal on the investigation of whether it constituted securities fraud for Apple not to have disclosed more and earlier about the state of its founder's health. Larry Ribstein: "How about this solution: let the shareholders decide."

Reversing preemption, one bill at a time

Reacting to the sale of salmonella-contaminated peanut butter, Rep. John Dingell has introduced a bill that, as the Washington Post describes it, "would give the FDA more money and authority over food safety, including the power to issue mandatory recalls of contaminated food."

The Dingell bill is H.R. 759, the Food and Drug Administration Globalization Act of 2009. House Energy and Commerce holds an oversight hearing into the salmonella outbreak on February 11.

A key provision is "SEC. 2. RELATIONSHIP TO STATE LAW."

This Act and the amendments made by this Act may not be construed as modifying or otherwise affecting any action or the liability of any person (as defined in section 201 of the Federal Food, Drug, and Cosmetic Act) under the law of any State.

The anti-preemption language explains, at least in part, the American Association for Justice's support for the legislation, which AAJ hailed in a news release saying:

"With the onslaught of reports of contaminated spinach, tomatoes, beef, pet food, and now peanut butter, it is clear increased funding and authority is needed at the FDA like Congressman Dingell's legislation provides," said Bill Marler, a food safety attorney and member of the American Association for Justice's Foodborne Illness Litigation Group.

"However, the revelation the peanut manufacturer responsible for the salmonella outbreak knowingly endangered consumers by selling product they knew was harmful shows why FDA enforcement is not enough," added Marler. "The increased inspections and civil justice penalties provided by this legislation go hand-in-hand with the right to hold wrongdoers accountable for the food they sell and profit from," added Marler. "We are glad Congressman Dingell included language to protect the right of consumers to seek justice on these issues in the court system."

Around the web, February 3

  • Audacious: Stimulus bill would let state AGs file HIPAA damage suits using private contingency-fee lawyers [Chamber ILR]
  • Hemline effect? Periods of intensive empirical research at law schools said to correlate with stock market booms [Prawfsblawg, ConcurOp]
  • If "Human Rights Watch" wants to nose into U.S. domestic labor law, could it at least do so on the right side? [Carter at ShopFloor]
  • Canada said to have too few lawyers, a sentiment open to doubt [Maclean's]
  • Connecticut experiments with group voir dire, Norm Pattis comments [Connecticut Trial Lawyer] Best blogs and feeds about juries, by Anne Reed who is too modest to note that hers is in fact best [Deliberations]
  • Julian Sanchez on Cass Sunstein appointment [Ars Technica; earlier]



With a mention of the Manhattan Institute's recent "Trial Lawyers Inc. -- Louisiana" paper.

Litigation procedure in Ontario

How the mechanics of a lawsuit -- and, notably, the shifting of costs at its conclusion -- work up there:

Ontario is a cost-shifting or "loser pays" jurisdiction. As a practical matter, this means that a prevailing party is generally entitled to recover a portion of its legal costs, including both fees and disbursements, from the unsuccessful party. The proportion of actual costs incurred that are recoverable depends on the circumstances of the particular case. Absent unusual circumstances, "partial indemnity" awards in the range of 25 to 50 percent of actual costs are not uncommon.


The Federal Judicial Center in November released a report on the workings of the Class Action Fairness Act, which (contrary to some predictions made at the time) has in no way gotten the state courts out of the class action business, or swamped the federal courts with an inundation of transferred cases. Consumer Law & Policy had three posts on the news, here, here, and here, including an interview with Richard Willging of the Center.*

*Yes, we did note this in a roundup a few weeks ago, but with fewer links and none to the study itself, which was led by Emery Lee III of the FJC as well as Willging.


The secret, it seems, is to ask for a billion.

The next round of litigation

The American Association for Justice holds its winter convention starting next Saturday in New Orleans, providing an opportunity to see what might be new in the way of product liability and class action lawsuits coming from the nation's trial lawyers. A review of the convention's schedule reveals meetings of the following proposed litigation groups:

  • Oil and Gas Proposed Litigation Group Meeting
  • Federal Employees Liability Act (FELA) Proposed Litigation Group Meeting
  • Automated External Defibrillator (AED) Proposed Litigation Group Meeting
  • Asbestos Proposed Litigation Group Meeting
  • Bicycles Proposed Litigation Group
  • Intervention Cardiologist Proposed Litigation Group
  • Quinine Proposed Litigation Group Meeting

If you're a cardiologist who bikes to work after drinking gin and tonics, watch out!

AAJ describes litigation groups as "a critical tool for our members to level the playing field when forced to battle the overwhelming resources of corporate counsel. As a member of a Litigation Group you will be able to share accumulated information and experience, regarding a specific type of case."

The asbestos group raises questions -- there's a new angle on asbestos-related lawsuits? -- but the schedule does not provide additional info.

BTW, the AAJ's Townhall speaker is Howard Fineman of Newsweek. We see no mention of anybody from the new Obama Administration speaking, but perhaps that's a late-breaking development. Make it part a Katrina recovery tour.

Around the web, February 1

  • Getting to be an old story, we know, but yet another study finds no vaccine link to autism [Joanne Jacobs]
  • On a bad, bad Specter proposal: "The Criminalization of Products Liability: An Invitation to Political Abuse, Preemption, and Non-Enforcement" [Frank Vandall (Emory), SSRN, via TortsProf]
  • "A Comprehensive Look at FCPA [Foreign Corrupt Practices Act] Settlements" [Kevin LaCroix on NERA Economic Consulting study]
  • Podcast: "SCOTUScast 1-27-09 featuring Erin Glenn Busby" [Federalist Society via Mass Tort Prof]
  • A drugmaker's challenge: "Government By Contingent Fee In Pennsylvania" [Beck & Herrmann]
  • Another effort to tie deep pockets to terror, and with an Alien Tort Statute angle too: "Israelis Sue Oil-for-Food Companies for Alleged Ties to Palestinian Terrorists" [Legal Times]

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.