February 9, 2010

"CSX Chases Plaintiff Firm Over Asbestos"

"A railroad company's dogged pursuit of conspiracy and fraud charges against an asbestos law firm is unfolding in a federal appellate court and with a major assist from business and tort reform groups." [Marcia Coyle, NLJ]

February 3, 2010

"The Lancet's Vaccine Retraction"

WSJ editorial: "even reputable publications can become conduits for junk science when political causes run hot." Earlier here, etc.

January 30, 2010

"MMR scare doctor 'acted unethically', panel finds"

"The doctor who first suggested a link between MMR vaccinations and autism acted unethically, the official medical regulator has found. ... [Panel chairman Dr. Surendra Kumar] also said Dr Wakefield should have disclosed the fact that he had been paid to advise solicitors acting for parents who believed their children had been harmed by the MMR." [BBC] More coverage: Kathleen Seidel, Ronald Bailey/Reason "Hit and Run", Liz Ditz, more on MMR vaccine and litigation.

January 26, 2010

John Tierney on tainted research

On climate change and beyond: "Conflict-of-interest accusations have become the simplest strategy for avoiding a substantive debate. The growing obsession with following the money too often leads to nothing but cheap ad hominem attacks. ...It's naive to caricature scientific disputes as battles between 'industry' and the 'public interest,' as if bureaucrats and activists didn't have their own selfish interests (and wealthy, powerful allies like trial lawyers)."

December 30, 2009

David Bernstein, "Getting to Causation in Toxic Tort Cases"

The George Mason lawprof and longtime Point of Law favorite has a new paper on SSRN: "While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article's unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts' adherence to traditional notions of causation against their critics."

December 22, 2009

"Top Ten Expert Witness Rulings of 2009"

More Top-Tennery, this time from Robert Ambrogi for IMS Expert Services.

December 1, 2009

Climategate: Released documents cast doubt on lawsuits' claims

Chris Horner of the Competitive Enterprise Institute is the author of the recent "Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud, and Deception to Keep You Misinformed," and with his CEI colleagues has been reporting on the unauthorized release of documents from the Climatic Research Unit (CRU) of East Anglia University. In a Monday op-ed in The Examiner, he touched on the legal elements of the scandal, "Climate-gate e-mails released by whistleblower, not hacker," commenting that the involved scientists "have likely retained counsel with defensive purposes in mind."

Major litigation is under way in which plaintiffs claim damages caused from global warming, a topic addressed in today's USA Today story, "Lawsuits put global warming on more dockets." Yet the implications of Climategate on these suits has drawn little attention. (See Point of Law post, "Climategate: So who sues whom?")

So we asked Horner about the legal issues. He responded:

I suggest that the biggest impact of these affirmations -- remember, they are not revelations as for years I and others have specifically been naming these names and describing these actions now admitted to -- could well be how no court will simply take judicial notice now of any claims attributed to the IPCC, for which the work at issue in these documents serves as a basic foundation.

That implicates the idea that the science must now be debated before proceeding. That bodes very poorly for plaintiffs and the legal strategy of the alarmist industry in general. For nuisance, ESA, you name it.

For the same reasons EPA's regulatory threat is now even less menacing or sincere than it was a week before.

From there you proceed into issues of potential legal liability, for transparency and other laws broken, possible RICO exposure, and other legal fallout for the principals.

In related developments, CEI on Nov. 24 filed three Notices of Intent to File Suit against NASA and its Goddard Institute for Space Studies (GISS), for refusing to provide documents requested under the Freedom of Information Act. The CEI news release states: "The information sought is directly relevant to the exploding "Climategate" scandal revealing document destruction, coordinated efforts in the U.S. and UK to avoid complying with both countries' freedom of information laws, and apparent and widespread intent to defraud at the highest levels of international climate science bodies."

November 27, 2009

Climategate: So Who Sues Whom?

An exchange between Hugh Hewitt -- an attorney and law professor -- and columnist Mark Steyn on Hugh's radio program, Thanksgiving eve:

HH: Is it fair to say, Mark Steyn, that everything that the tobacco companies were ever accused of doing with data about cigarettes is now true about the CRU and its global warming data?

MS: Yeah, that's absolutely, that is actually a good way to put it. I mean, I think this idea...they've corrupted the very essence of science. They've corrupted peer review, they've had editors from journals fired who disagree with them, they've corrupted the data. They basically are the antithesis of science. They decide the result, and then figure out how you need to set up the computer model to get the result. This is disgraceful.

CRU is the Climatic Research Unit of the University of East Anglia, whose researchers and correspondents have been shown by disclosed e-mails and computer programs to have manipulated and politicized research. If the tobacco company analogy is apt, then state attorneys general must already be planning their joint legal strategies.

No? Still, the revelations of debased science have far-reaching implications for all sorts of climate-related litigation. Consider the public nuisance suit by eight states against utilities that generate electricity from coal, Connecticut v. American Electric Power. In its opinion that the states could sue, the Second Circuit noted the litigation was based on "reports from the Intergovernmental Panel on Climate Change [IPCC] and the U.S. National Academy of Sciences to support the States' claims of a causal link between heightened greenhouse gas concentrations and global warming." (Page 7)

Yes, and IPCC as well as the Environmental Protection Agency relied on the now beleaguered Climatic Research Unit. In a widely cited and excellent report, "Congress May Probe Leaked Global Warming E-Mails," at a CBS News blog, Declan McCullough writes:

The leaked documents (see our previous coverage) come from the Climatic Research Unit of the University of East Anglia in eastern England. In global warming circles, the CRU wields outsize influence: it claims the world's largest temperature data set, and its work and mathematical models were incorporated into the United Nations Intergovernmental Panel on Climate Change's 2007 report. That report, in turn, is what the Environmental Protection Agency acknowledged it "relies on most heavily" when concluding that carbon dioxide emissions endanger public health and should be regulated.

The EPA connection takes us to Kim Strassel's "Potomac Watch" column today in The Wall Street Journal, "'Cap and Trade Is Dead'," those being the words of Sen. Jim Inhofe (R-OK), commenting on the debased science, its legislative implications and the possibility of an EPA "endangerment" finding.

Mr. Inhofe goes so far as to suggest that the agency might not now issue the finding. "The president knows how punitive this will be; he's never wanted to do it through [the EPA] because that's all on him." The EPA was already out on a legal limb with its finding, and Mr. Inhofe argues that if it does go ahead, the CRU disclosure guarantees court limbo. "The way the far left used to stop us is to file lawsuits and stall and stall. We'll do the same thing."

November 23, 2009

Around the web, November 23

• Tide turning against drug-pricing suits? Glaxo SmithKline beats back Kentucky case [Longstreth, AmLaw Daily]
• Court in Australia deems litigation funding pact improper as "unregistered managed investment scheme" [New Lawyer]
• Should docs be careful what they ask for? Michelle Mello of Harvard, a prominent advocate of health courts, hopes they'll significantly expand compensation [Gerencher, MarketWatch]
• Doubts about the latest phthalates scare, and a Daubert angle [Trevor Butterworth, Forbes]
• Claim: pay-to-play isn't such a big problem with public pension plaintiffs after all [Securities Litigation Watch, more]
• Chevron, trial lawyer adversaries locked in lobbying combat over Ecuador suit [Politico via Law & More]

November 18, 2009

Senate Committee approves Michaels' nomination to head OSHA

David Michaels, President Obama's nominee to be Assistant Secretary of Labor for Occupational Safety and Health, just had his nomination voted out of the Senate HELP Committee. Despite serious concerns about Michaels' views on science, law and business -- see Point of Law posts -- the committee never held a confirmation hearing to question him and today's vote occurred with no discussion.

Sens. Tom Coburn (R-OK) and Richard Burr (R-NC) voted no.