May 11, 2008

On the Hill

Two House committee hearings to be aware of this week:

• 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.

May 9, 2008

Hello? May I Speak to the Victim of the House?

A phone message left on the home answering machine last night, evidence of mass trolling for plaintiffs in what I assume to be Traydol lawsuits. I'll have enough wits about me to press "1" next time to be connected to a screener. Maybe I'll get a diagnosis over the phone!

MTBE Settlement Despite Lack of Causation and Fault

The San Francisco Chronicle reports that all major oil companies except Exxon have agreed to pay $422 million to settle a lawsuit over the gasoline additive MTBE.

Methyl tertiary butyl ether was added to gasoline in the 1990s to make the fuel burn more thoroughly and cut air pollution, in response to government mandates (the only alternative to MTBE is grain-based ethanol, which is much more expensive and, as we know now, is ecologically catastrophic on the international level). MTBE is perfectly safe as long as storage tanks don't leak. But if tanks leak (an event for which gas station owners, not MTBE producers, are responsible) MTBE can seep into ground water and impart to it a noxious taste. Since tank owners are small fry, California governments went after MTBE producers to recover the costs of cleaning up their wells. I have written about this case at length in the Federalist Society's Engage journal.

Under the agreement, the oil companies will pay $422 million up front. They also agree to cover 70 percent of the cleanup costs for any of the plaintiffs' wells that become contaminated with MTBE within the next 30 years.

The companies argued that they shouldn't have to pay cleanup costs because the government had compelled MTBE's use, because no long-term health effects on humans had been proved, and as a result, and because any fault lay with tank owners, not with MTBE producers. The settlement agreement does not address those arguments, and an attorney representing Chevron in the case said the companies still hold those views. Too bad they're now moot.

May 8, 2008

Tort Reform Efforts Continue in Oklahoma

Only to run into another veto threat by Gov. Brad Henry, who supports tort reform as long as it remains in the abstract. From The Journal Record: "OKLAHOMA CITY - Barely before the ink was dry on a significant tort reform bill the Legislature passed Wednesday, Gov. Brad Henry promised to veto the measure. The bill would reinstate certain provisions of a law struck down as unconstitutional in 2006. ...House Bill 2458 would require plaintiffs to obtain an affidavit from an expert when filing a professional malpractice lawsuit - but this time, the bill includes wording designed to avoid a legal pitfall that rendered the previous law unconstitutional." Search here for the bill history and text.

May 4, 2008

Around the Web, May 4

• The May issue of "Trial," the monthly magazine of the American Association for Justice, includes an article on In re Seroquel Prods. Liab. Litig., 2008 WL 215707 (M.D. Fla. Jan. 24, 2008). While the magazine is reserved for members, a summary of the article has been posted online: "The U.S. district court overseeing multidistrict litigation against the manufacturer of the atypical antipsychotic drug Seroquel held that documents reviewed by witnesses in preparation for depositions are not protected by the work-product privilege." Here's an article on the litigation last year at Law.com.
• Apropos the AAJ, the trial lawyers group is sponsoring is a teleseminar Wednesday, "Using the McKinsey Documents in Your Bad Faith Case." The reference is to management consultant McKinsey & Co.'s documents recommending how Allstate Corp should challenge automotive insurance claims. One of the AAJ presenters is David Berardinelli, Santa Fe trial lawyers and author of the book, "From Good Hands to Boxing Gloves." Business Week covered Berardinelli and his book in May 2006.
• Last month, All State decided to post the McKinsey documents online in response to a judge's order and fines. The 150,000 pages are available here. The decision prompted news reports, including this New Orleans Times-Picayune story, which notes that the documents do not include information about catastrophic claims, of potential use in Hurricane Katrina litigation. David Rossmiller at the Insurance Coverage Blog has more.
• This line in the registration materials for the AAJ teleseminar caught our eye. "Note: Eastern Indiana and parts of Arizona--no daylight savings -- Please be sure to note correct time for the teleseminar you register for." Nope. Indiana went all Daylight Saving Time effective April 2006, an initiative of Gov. Mitch Daniels. So if you miss the seminar because of bad info, can you sue?
• Via The Volokh Conspiracy comes news of the action by Swiss Federal Ethics Committee on Non-Human Biotechnology. Finding: Plants have rights. "The Committee members unanimously consider an arbitrary harm caused to plants to be morally impermissible. This kind of treatment would include, e.g. decapitation of wild flowers at the roadside without rational reason."
• From the Wall Street Journal's Law Blog: "Just days before the first Bextra trial was to begin, Pfizer has struck tentative settlements with some plaintiffs who alleged that painkillers Celebrex and Bextra caused heart attacks, according to lawyers at three plaintiff firms involved in the litigation." More from Bloomberg.
• A column by Ken Connor, Chairman of the Center for a Just Society in Washington, D.C., challenging the U.S. Chamber of Commerce's "Lawsuit Climate 2008: Ranking the States." By its sample -- corporate attorneys -- the survey is inherently biased and does not reflect a good knowledge of the court system, Connor argues: "As a trial lawyer for thirty-five years, I am among the first to admit that the civil justice is imperfect. But access to the court system is a constitutionally protected right, and at a time of rampant corporate misconduct it is a right that needs to be zealously defended. Conservatives who believe in the Constitution and the need for checks and balances in our public life should agree." Connor's column is a rebuttal to a pro-survey column by Lindsay Boyd of Townhall.com
• Three-hundred-and-twenty five new laws go into effect in Utah on Monday. The Deseret News has a round-up. Many new opportunities for litigation. Here's one: The estate of a person killed by illegal drugs can sue the person who provided or administered the lethal drugs.
• A post mortem in the Orlando Sentinel of the Central Florida commuter train debacle in the Legislature: "TALLAHASSEE - Central Florida's commuter-rail project failed in the Florida Legislature because its backers didn't heed a cardinal rule of politics: Know your enemy...They thought their main opponents were residents of Lakeland, angry that the state's deal with CSX Corp. would run more freight trains through their city. They didn't realize until too late that the state's trial lawyers were grimly determined to defeat the deal."

April 29, 2008

The Costs of Lead Paint Hype

From WIBV-TV, Buffalo:

BUFFALO, N.Y. (WIVB) - - The North Park Branch Library located at 2351 Delaware Ave., will be closed temporarily as of Friday, April 25, 2008.

During a recent construction assessment to repair plaster walls, lead paint readings came back elevated. The highest elevated levels reported are confined to window areas of the library that are enclosed in plastic for energy savings.

As a precaution and to ensure the safety of staff and patrons, in consultation with the Library's Board of Trustees, B&ECPL Director Bridget Quinn-Carey has decided to temporarily close the library. "While we do not believe that our staff or patrons are at risk for lead exposure, we have decided to err on the side of caution and temporarily close the facility until further assessments and remediation work can be done," Quinn-Carey said.

"The highest elevated levels reported are confined to window areas of the library that are enclosed in plastic for energy savings." And the risk is, what, that children will claw throught the plastic, repeatedly, to eat ALL the paint from windowsills, over the course of years?

You have to wonder how often this sort of expensive overreaction is going on. Any dispassionate risk analysis has been buried by litigation, media hype and government-expanding politicians.

(More at Shopfloor.org.)

April 27, 2008

Bisphenol A: Chemical Industry Defends Itself, Condemned

The Washington Post gives prominent Page One display Sunday to the ongoing scientic, policy, PR, political and legal disputes over the use of Bisphenol A (BPA) in plastics. It's an archetypical story: Industry under attack for methods, motives -- doesn't care about the public. Congress investigates. From "Studies on Chemical In Plastics Questioned":

Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.

The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.

The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.

Congressional Democrats are investigating, and here's the basic line of attack:

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."

As said, this is a typical story -- although more thorough than many -- with industry as the bad guy, the FDA as the bought-and-paid-for lackeys, and scientists and activists as heroes interested only in the public good.

Missing, though, is an acknowledgement of the trial bar's role in the debate. All signs point to an orchestrated campaign to exaggerate the risks, villify industry, and then...Well..

LOS ANGELES (Reuters) - A California mother sued Nalge Nunc International Corp, claiming the company knew, but downplayed risks, that a toxic substance in its popular Nalgene plastic sports bottles could leach into the bottles' contents and sicken consumers.

The case, filed on Tuesday [April 22], is believed to be the first consumer class action over the use of Bisphenol A, or BPA, in plastic sports bottles since Canada moved to ban baby bottles containing the substance and the U.S. government expressed concern over its safety last week.

P.S. The alleged "politicization of science" is a favorite line of attack these days. Over at Shopfloor.org we took a look at how the Union of Concerned Scientists "entrusted" a Washington Post reporter with a story about Endangered Species Act listings, eventually creating a Washington, D.C., "scandal" that destroyed a public servant's reputation over a policy dispute. The post is "Anatomy of a Beltway Takedown."

April 23, 2008

Warning of Risk is Unavailing to Drug Maker

News inferno reports that Kamie Kendall, a 24-year-old Utah hairdresser has been awarded $10.5 million by a New Jersey jury for damages to her colon following use of the anti-acne drug Accutane. The trial judge refused to allow the jury to consider punitive damages.

Kendall is the third Accutane plaintiff to successfully sue Hoffman-LaRoche over inflammatory bowel disease. In May, another New Jersey jury awarded $2.62 million in damages to a patient who needed to have his colon and most of his rectum removed after taking the drug Accutane. In October, A Florida jury awarded $7 million in damages to another Accutane user who developed the disorder and said Hoffman-LaRoche failed to adequately warn of the drug's risks.

Kendall started taking Accutane at age 12. She was diagnosed with ulcerative colitis at the age of 14, and in 2006 she had her colon removed and now suffers from debilitating diarrhea.

Hoffman-LaRoche is apparently appealing all three verdicts, and insisted that the link between Accutane and inflammatory bowel disease has not yet been proven. In a possibly contradictory statement, however, the company also said that "the Accutane labeling has contained a warning about IBD for more than 20 years."

Accutane may well go the way of Bendectin....

April 21, 2008

Still Waiting for the Congressional Hearings

In his latest column, "Stones Left Unturned," Kenneth Jost of CQ Press lists the predations of Melvyn Weiss and William Lerach, their decades of offenses angrily denied.

Today, those denials are inoperative, the firm has broken up, and Lerach and Weiss are headed to federal prisons after pleading guilty to felony charges. But the head of the American Tort Reform Association, Sherman Joyce, says the full story of ethical misconduct by plaintiffs' lawyers in securities fraud suits remains to be written -- and he wants Congress to investigate.

Joyce notes that, in a pre-sentencing interview with The Wall Street Journal, Lerach claimed his firm was just following an "industry practice" when it solicited and then paid shareholders who served as plaintiffs in securities suits. If Congress has time to investigate steroid use by baseball players, Joyce says, it ought to have time as well to look into the extent of unethical conduct over the years by plaintiffs lawyers in securities cases.

Come to think of it, we proposed something along those lines at Shopfloor.org last October:

It is time for high-profile investigations and oversight hearings from Congress into the lawsuit industry, demanding accountability from these spoilers. Let's investigate their impact on the economy, the abusive model that Milberg-Weiss established, and the harm their predations do to the children. Make the witnesses take the Fifth, if it comes to that. At the very least, the public shaming will serve an educational and deterrent effect.

Thanks for the Invitation

Carter Wood of the National Association of Manufacturers here, taking up Walter Olson's much-appreciated invitation to guest blog. I blog daily at the NAM's site, Shopfloor.org, where legal reform is a frequent topic.

And I've been following tort reform since my newspaper reporting days in the early '90s, when the North Dakota Legislature debated statutes of repose for the aviation industry. (And Cirrus Design Corp. seems to be doing well. Coincidence?) North Dakota -- that's a "sucker" state according to the Pacific Research Institute's 2008 Tort Liability Index, with the lowest tort costs in the nation but weak laws just waiting to be abused.

In any case, it's a pleasure to have the opportunity, etc. Lots to follow in the week ahead...like that Ledbetter legislation.