Brownlee and Lenzer write:

In hopes of making reporters' jobs a little easier, we've created for journalists an international list of prestigious and independent medical experts who declare they have no financial ties to drug and device manufacturers for at least the past five years. We have nearly 100 experts from a wide array of disciplines. E-mail us at Brownlee.Lenzer@gmail.com, and we'll be happy to name names.

Of course, financial ties from "drug and device manufacturers" are not the only source of potential conflicts of interest; many "medical experts" who take no money from drug and device manufacturers are instead receiving substantial money manufacturing quack expert testimony for the plaintiffs' bar falsely condemning pharmaceutical companies for profit. I took Brownlee and Lenzer up on their public offer to share the list and asked to see it, because I thought it would be interesting to see how many of their "nearly 100" could be cross-referenced against testifying experts for plaintiffs, but Brownlee and Lenzner refused to submit the list to independent scrutiny because I work for AEI. Students of game theory know what the refusal to disclose to skeptical sources indicates about the quality of the hidden information; the refusal tells you you can safely assume the worst about the list.

Read all the way to the bottom of the Slate piece for an amusing exchange between Bill Lichtenstein (who reveals that Lenzer only blasted his program on Slate after he refused to profile them on air) and Lenzer complaining that Lichtenstein dared to mention the scandal that forced BMJ to retract a Lenzer hit piece on Eli Lilly at the same time she makes ad hominem attacks on Peter Pitts and Trevor Butterworth without addressing the substance of their comments. To wit, Butterworth notes:

Lenzer, a former physician's assistant turned freelance writer, appears to be of the "industry money corrupts" school of medical reporting. This has its place, but only if an accusation of vested interests can be shown in faulty research methodology and poor statistical methods, or that the drug is pointless or has a greater risk profile than similar drugs without any greater benefit. Otherwise, it's a way of reporting whose bias is at least as bad as the bias it purports to expose precisely because it's unscientific in method; it insinuates corruption without demonstrating it in the data.

Lenzer's bias is evident in her attack on Butterworth. And, speaking of bias, we somehow doubt that Lenzer will ever have the problem that she will write an article that BMJ has to retract in its entirety and apologize for because it was mistakenly too favorable to industry.

Since Brownlee and Lenzer will point this out if they respond at all, my employer, AEI, receives a small portion of its annual budget from pharmaceutical companies. I have previously performed legal work or consulting work for pharmaceutical companies. None of this has previously prevented me from taking public-policy positions opposed by the pharmaceutical industry. Neither AEI nor any of its donors has dictated or sought to dictate the conclusions of any of my work.

Peters, who was ead counsel for plaintiff Wolters Kluwer Financial Services in a suit against Scivantage, had been sanctioned by Judge Harold Baer for using what the judge found to be scorched-earth litigation tactics in a trade secrets case in the Southern District of New York. Less than a month after filing the lawsuit--and just before her opponent met a discovery deadline and turned over thousands of documents--Peters voluntarily dismissed the complaint and immediately filed a similar action in Massachusetts federal district court.

As factors justifying the interim suspension, the committee cited the nature and seriousness of the charges against the lawyer, the strength of the record supporting those charges, and the danger that Peters might repeat her misconduct since she disputes its wrongfulness. The grievance committee noted especially that Peters had instructed an associate in her firm to mark up deposition transcripts to make it appear that they were work product that could arguably be withheld from the district court, and then attempted to mislead the court about that incident by characterizing her instructions to the associate as a "joke." Peters had also used deposition transcripts in the action in Massachusetts in violation of a confidentiality order entered in the Southern District litigation.

The committee found that Peters clearly violated at least three disciplinary rules of the New York Code of Professional Responsibility by engaging in conduct prejudicial to the administration of justice (DR 1-102(A)(5)), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (DR 1-102(A)(4)), and disregarding a tribunal's rulings or advising a client to do so (DR 7-106(A)).

Judge Baer's sanctions order and referral to the grievance committee are part of a refreshing new tendency of judges to sanction unethical attorney conduct. This phenomenon and this case were discussed by your reporter extensively in a recent Washington Legal Foundation podcast, which had been advertised on this site and is available on the web.

Ohio Attorney General Marc Dann is expected to announce his resignation later today, The Plain Dealer has learned. He planned to break the news to his senior staff this afternoon.

The decision came as Dann faced intense pressure from fellow Democrats and Republican critics who said he was not fit to continue as the state's top lawyer.

It also followed action targeting Dann in the Ohio General Assembly today by lawmakers from both parties. House Democrats this morning filed articles of impeachment against Dann, accusing him of misconduct and malfeasance in office. And House Republicans began plans to fast-track a bill that would allow the state Inspector General's office to conduct an independent investigation into Dann's office.

UPDATE (4:29 p.m.): AG's office says not the case: "At 3:55 p.m., as a group of reporters and camera people stood gathered outside Dann's office on the 17th floor of the Rhodes Office Tower, a receptionist handed out a short statement that read, 'In response to numerous media inquiries today, the office is issuing the following statement: "Ohio Attorney General Marc Dann has not resigned and no further announcements are planned.'"

And here's an observation from Crain's Cleveland Business, made just about a year ago:

Marc Dann is off to an aggressive start as Ohio's new attorney general, and The New York Times has taken notice.

The paper even pays the activist AG what he would view as the ultimate compliment: It compares him with former New York attorney general Eliot Spitzer, the bane of Wall Street, mutual funds and the insurance industry.

Whooooa-kay.

It's the activist side of the AG that has us interested. Dann has certainly taken an activist bent when approaching the foreclosure issue.

• More criticism of how some litigation finance outfits, lending in almost completely unregulated market, treat unsophisticated clients [Daily Business Review]
• Christopher Robinette [TortsProf] begins a series on med mal law [parts one, two, three, four, with more to come]
• When courts entertain implied private rights of action, they reduce the law's transparency [Kjose, Inland Valley Daily Bulletin; more on Grange Mutual Casualty case in Ohio; further background]
• Oklahoma legislature fails to override Gov. Henry's veto of liability reform [Benge press release/Okla. Political News Service]
• Prof. Grace fact-checks some assertions about malpractice insurance from the New Hampshire Association for Justice [RiskProf]
• If you think card check's bad, wait till you hear what else organized labor has planned after its hoped-for November sweep [Weigel @ Reason and comments; Ted @ OL]
• Report that more docs are taking legal advice before "firing" their problem patients [Boston Business Journal; but note different views from KevinMD commenters]

The study found that average general liability and professional liability loss costs nationwide are at approximately $1,460 per bed after peaking at $2,030 per bed in 1998. This trend is driven by a reduction in the average severity of claims from a high of $261,000 in 1998 to $138,000 in 2007. In addition, the number of claims (frequency) has stabilized in recent years -- hovering around 10.6 claims per 1,000 occupied beds after rising from 6.7 claims in 1997.

Theresa W. Bourdon, managing director and actuary, credits tort reform for much of the progress, while adding: "Many other changes, including the withdrawal of some long term care facilities operators from expensive markets, more effective defense strategies, the use of arbitration for claims settlement and significant improvements in quality of care, have combined to help alleviate the liability crisis."

In April, Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI) introduced S. 2838, the Fairness in Nursing Home Arbitration Act. The bill would amend the Federal Arbitration Act to ban pre-dispute arbitration agreements for nursing homes and residential care facilities, e.g., assisted living facilities. The Martinez news release is here. The American Association of Justice issued a news release upon the bill's introduction. They like it.

More at Shopfloor.org and the WSJ Law Blog.

The case is American Isuzu Motors Inc. v. Lungisile Ntsebeza, 07-919. The court's order is available here.

As Dow Jones explains:

When lacking a quorum, the Supreme Court is required to affirm a lower court [2nd Circuit] ruling that went against the companies, many of them major international corporations. Both the U.S. and South African governments also urged the high court to hear the case.

The South African apartheid appeal could affect more than 50 companies sued in 11 separate lawsuits for damages claims that exceed $400 billion. Among those who signed onto the appeal are American Isuzu Motors Inc., a unit of Isuzu Motors Ltd. (ISUZY), Ford Motor Co. (F), JPMorgan Chase & Co. (JPM), Honeywell International Inc. (HON), General Electric Co. (GE) and 3M Co. (MMM).

The lawsuits represent a major interference with the Executive Branch's conduct of foreign policy and open up U.S. businesses to liability claims for doing business in an entirely consistent fashion with that foreign policy.

The National Association of Manufacturers joined other business groups in an amicus brief (available here); the others are the National Foreign Trade Council, USA*Engage, U.S. Council for International Business, and the Organization for International Investment.

The Solicitor General's brief is available at ScotusBlog here.

In an earlier Point of Law post, The Manhattan Institute's Jim Copland argued, "As I expressed in an interview this spring, before the case was decided, the suits are largely driven by "cowboy law professors who want to hijack U.S. human-rights laws. They exploit U.S. courts to get their preferred policies implemented without having to worry about the State Department or Congress." While the latter class of cases -- those against the multinationals -- are the more typical fee-driven sort, many of these cases are also driven by "a feeling of 'I want to be the secretary of state' among these lawyers."

Also, Michael Krauss commented, "Saudi Arabia's barbaric laws mistreat women and viciously oppress non-Muslims. China enslaves millions, harvests organs from thousands it executes, and is still in denial over Tiananmen Square. Warning to all US companies doing business in those places -- did you know you might be committing an American tort? Talk about a tariff barrier to exports!"

In the last several years, nearly every major pharmaceutical company has paid hundreds of millions of dollars to settle allegations of illegal "off-label" marketing of drugs. There has been a growing trend of actions by federal prosecutors, state attorneys general, and cooperating trial lawyers to litigate against pharmaceutical manufacturers for allegedly doing too much to promote off-label use of prescription products. Citing recent legal changes mandating exclusion from federal programs after a conviction, many manufacturers say they are forced to settle rather than risk defending themselves--even as prosecutions against individual executives have foundered in front of juries.

At this AEI Legal Center event, experts on both law and health care will present papers on the law, economics, medicine, and public policy of off-label marketing, discussing everything from the abuse of class action mechanisms to implications for the First Amendment and medical malpractice. Speakers include former Food and Drug Administration chief counsel Daniel Troy; former Cephalon general counsel John Osborn; former deputy attorney general George Terwilliger; principal deputy assistant attorney general and acting assistant attorney general for the Civil Division Jeffrey Bucholtz; attorneys Brian Anderson, James Beck, Mark Herrmann, Richard Samp, and Kyle Sampson; law professor Margaret Johns; and AEI scholars John E. Calfee, Theodore H. Frank, and Scott Gottlieb.

Panel I: Off-Label Marketing, R&D, and Medical Practice

Panel II: The Legal Environment from Federal Regulation and Enforcement

Panel III: Distortions from State and Private Enforcement

Panel IV: Legal Implications for Commercial Speech and Medical Practice

Register here. Earlier discussion on POL: Feb. 1; Feb. 19; Mar. 24; Dec. 17; Aug. 31; Aug. 22 (Richard Epstein); Aug. 1, 2006 (state AGs); Mar. 19 (InterMune indictment).

William Gallion, Shirley Allen Cunningham Jr. and Melbourne Mills Jr. go on trial in Covington on Monday before U.S. District Judge William O. Bertelsman.

Bertelsman perhaps set the tone himself in a comment during a hearing last year: "Not only these three gentlemen are on trial, but the whole legal profession is on trial."

The Herald Leader notes that the case has attracted national attention and has prompted a reconsideration of how class-action lawsuits are conducted in Kentucky. In February, Chief Justice Joseph E. Lambert appointed 12 attorneys to serve on the nearly created Mass Tort and Class Action Litigation Committee. (News release.) The AP had a story that framed the issues in February.

UPDATE (10:30 a.m. Tuesday): Good summary in the WSJ's Law Blog. We'd forgotten that two of the lawyers used the gains to purchase Preakness winner Curlin. Hope that doesn't make the current legal proceedings a win-place-or-show trial.

What is also needed, and rarely discussed, is a way to make judges control these cases rather than sit back and watch the plaintiff bar effectively extort cash from the defendants because it's cheaper to settle for a few thousand dollars each than to investigate thousands of cases filed at once.

And to correct a misimpression left by my earlier post: while Jim Copland was the one at the Manhattan Institute who directed the report's preparation, its principal author was John M. Wylie II, who had earlier investigated asbestos-suit scandals for the Reader's Digest (Jan. 2007 issue). Now Wylie contributes the latest "Think Tank Town" column to the Washington Post:

...Tragically, real victims -- workers who actually face serious future health problems due to asbestos exposure -- are often duped into signing away future rights for a pittance in order to pad current attorney fees, and are then left with no recourse if they actually become sick. And workers falsely diagnosed as sick face a lifetime of worry and problems getting insurance.

This project has been gut-wrenching for me. As a lifelong Democrat, I long have harbored grave doubts about many tort reform measures because I believed they hurt working men and women. In this field of the law, however, the need for reform has become blatantly obvious. ...

[Both mass screenings and new filings declined after the widely publicized episode in which Judge Janis Graham Jack exposed bogus claims in her courtroom] But when no prosecutions, disbarments and serious sanctions for the lawyers materialized, new attorneys predictably decided to get into the game. In the past six months, a Texas law firm has conducted two new mass screenings in my native Oklahoma. More are sure to follow.

When a few key doctors are stripped of their medical licenses and jailed, when a few key attorneys are disbarred, when a few overly compliant judges are voted or kicked out of office, it will send a strong message. Until then, lawyers have little incentive not to return to the business model that has earned them billions before.

And Quin Hillyer is covering the study for the Examiner, with sidebars on fast facts, recommended reforms, and the views of Stanford lung specialist Dr. David Weill .

• The Sarasota Herald Tribune: "TALLAHASSEE -- The legislative battle that doomed commuter rail service in Orlando had little to do with the $641 million cost or the cries from other cities about the resulting increase in freight traffic...It came down to a question of who could sue whom and for how much. Nobody in Tallahassee is better prepared for that fight than the Florida Justice Association, the lobbying arm of nearly 4,000 trial lawyers."
• The Lakeland Ledger: "TALLAHASSEE | All you needed to know about who was winning and losing the battle to bring commuter rail to Orlando you could learn from looking at the faces of lobbyists packed into the Capitol....As lawmakers worked through the hectic final day of their 60-day session on May 2, lobbyists from CSX Transportation and Orlando scurried through the hallways in a frenzied effort that failed to save the half-billion-dollar deal....But lobbyists for the state's trial lawyers, who had emerged as the primary opponents, leaned coolly against the limestone walls outside the Senate chambers. Their focus had shifted to the filming of a skit video for their upcoming annual meeting."
• And in The Tampa Bay Tribune, a story entitled, "Lawyers Feeling the Florida Legislature's Love Again."

The stories are all so ...frank. And informative for it. Gov. Jeb Bush was a noted critic of the trial bar; he wrote the foreward for the Pacific Research Institute's 2008 Tort Liability Index. Times change, as do governors.

Really.

• Committee on the Judiciary, May 14, Subcommittee on
  Commercial and Administrative Laws and the Subcommittee
  on Crime, Terrorism, and Homeland Security,
  joint hearing on Allegations of Selective Prosecution Part
  II: The Erosion of Public Confidence in Our Federal Justice
  System, 2 p.m., 2141 Rayburn.
• Committee on Oversight and Government Reform, May 14,
  hearing on Should FDA Drug and Medical Device Regulation
  Bar State Liability Claims? 10 a.m., 2154 Rayburn

Witnesses aren't listed yet for the Oversight hearing, which we assume will beat up on the Supreme Court's decision in Riegel v. Medtronic. (Earlier PointofLaw post here.) The American Enterprise Institute held a discussion on federal pre-emption issues in February, and transcript and background materials are available here.

As readers of this site probably know, the organized plaintiff's bar has been extraordinarily successful in getting state judges to strike down, as inconsistent with their states' constitutions, liability limits enacted by the elected lawmakers of their states. The grounds for such invalidation vary from state to state -- sometimes the reforms are declared at variance with "open courts" clauses of state constitutions, on the theory that to abrogate a long-recognized cause of action (or even curtail modestly the damages available under it) somehow amounts to abrogating the very right to redress grievances as such. Sometimes a curious theory of separation of powers is advanced in which the setting of liability rules is regarded as somehow internal to courts and not to be meddled with by mere legislators (of course those legislators are welcome to add new grounds for liability, so long as they don't narrow old ones).

Of course, the barest acquaintance with American legal history suffices to make clear that many damage actions once recognized as valid under common law have been abolished both by courts themselves, and by legislatures with the later approval of courts. Perhaps best known are various employment actions. Employees formerly had a direct right to sue employers over job injuries, which was largely abolished as part of the enactment of workers' comp laws; and employers once had a direct right to sue over certain costs inflicted by labor unrest, such as the blockage of plant gates by picketing, which was largely abolished by New Deal-era labor laws.

Those opposed to legislative encroachments on tort liability sometimes claim that the difference is that in the employment cases, liability was abrogated as part of an overall trade in which the party deprived of rights to sue was accorded valuable alternative rights: thus the injured employee could pursue benefit payments under workers' comp laws, while the blockaded employer might press a complaint before the National Labor Relations Board and in other ways might benefit from the legal regularization of labor relations. By contrast, legislative curtailment of (say) non-economic damages in medical malpractice cases is not ordinarily offset by the creation of any new no-fault scheme of compensation. Thus (it is argued) courts should feel free to strike down such damage limits, since they form no part of a comprehensive legislated scheme providing alternative benefits for patients.

As I've been pointing out for years, there's a big problem with the theory that a tort somehow cannot be abolished or curtailed in the absence of a legislated alternative compensation scheme. Earlier in the Twentieth Century, state legislatures took a prominent hand in the abolition of the once thriving set of torts known as "heartbalm", actions that included breach of promise of marriage, alienation of affections, and criminal conversation (sexual relations with complainant's spouse). No alternate system of legislated compensation whatsoever was provided for jilted brides, cuckolded husbands and so forth; their losses were simply left to lie where they fell. Nor did courts seize on this circumstance to invalidate legislative curtailments of heartbalm and proclaim that once a common law tort, always a common law tort.

Kyle Graham's article serves as a very handy compendium of other once-valid actions that have faded away, or been abolished perforce, with no suggestion that anyone enjoyed a constitutionally protected right to go on suing under them. They range from suits against taverns by spouses of alcoholics seeking compensation for their lost earnings (popular in the heyday of Temperance) to the old nuisance action of "ancient lights" (against the erection of nearby sunlight-blocking buildings), which retained vitality in Britain but mostly not here. Ironically, the list of defunct torts also includes the old common law right to sue the perpetrator of champerty and maintenance -- that is, to sue a third party who furnished one's opponent's the means to keep his lawsuit going. The AAJ/ATLA lawyers who assail as unthinkably outrageous the abolition of any and every common law right to sue are unlikely to go to bat for the revival of that one.