June 26, 2009

Around the web, June 26

• Talking real money: "old" GM said to be carrying $2.2 billion in liability claims [Detroit Free Press, Automobile Mag]
• Judge Harry Edwards and Michael Livermore of NYU: appellate decisions not as ideologically polarized as some scholars think [Duke Law Journal, Legal Workshop]
• "False Claims Act Case Makes Second Trip to Supreme Court" [Alison Frankel, AmLaw]
• "Federal Circuit Allows But Discourages Court-Appointed Experts" [Bernstein, Volokh]
• Some opinions on the race to succeed Robert Morgenthau as Manhattan D.A. [Scott Greenfield]
• Symposium brings together "progressive" views of property law [Cornell LR, Concur Op]

June 18, 2009

California adding 30 chemicals to Prop 65 list

And the relevant state agency announces that it "cannot consider scientific arguments concerning the weight or quality of the evidence and will not respond to such comments if they are submitted". Per Bruce Nye, "This is even more 'through the looking glass' than is usual with Proposition 65."

June 10, 2009

Complex cases, scientific evidence and the adversarial method

American legal history furnishes more precedent than is generally realized for the use of investigational ("inquisitorial") judicial procedure, special masters and distinctive procedure to handle complex cases, according to Prawfsblawg guest poster John Pfaff (Fordham), drawing heavily on a paper by Amalia Kessler (Stanford), "Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial", 90 Cornell L Rev 1181 (2005). From the SSRN summary of Kessler's article:

some of the worst abuses of modern litigation, and in particular, our discovery practice, can be traced to the ill-considered way in which inquisitorial devices were imported into a common-law based adversarial framework. ... We must recognize that the monstrosity of modern litigation is the product of a botched marriage between inquisitorial and adversarial traditions.

June 5, 2009

Arizona upholds expert-witness reform

The state's supreme court says the legislature did not improperly entrench on inherent judicial powers by toughening the standards for testimony.

June 4, 2009

Pacific Research Institute, "Tort Law Tally"

Recently out from Pacific Research Institute (PDF), authored by Nicole V. Crain, W. Mark Crain, Lawrence J. McQuillan, and Hovannes Abramyan, "Tort Law Tally: How State Tort reforms affect Tort Losses and Tort Insurance Premiums". From the executive summary:

Of the 25 tort reforms that we examine, the statistical analysis identifies 18 reforms to state civil-justice systems that significantly reduced tort losses and tort insurance premiums from 1996 through 2006. For some categories of tort cases, specific reforms cut payouts by more than 50 percent. The cumulative effect of reforms across all tort categories is a 47-percent reduction in losses and a 16-percent reduction in insurance premiums for consumers. Some tort reforms are highly effective at reducing costs in certain tort categories, but are ineffective in other tort categories. It is important that reformers pick the right tool for each problem. If we order the tort reforms according to each reform's ability to reduce aggregate tort losses, the top eight reforms are: attorney-retention sunshine (12 percent), Daubert/Frye (10 percent), frivolous lawsuits (7 percent), jury service (6 percent), appeal-bond caps (4 percent), negligence standard (3 percent), non-economic-damage caps (2 percent), and medical-malpractice damage caps (1 percent).

Related op-ed: PRI president Sally Pipes in D.C. Examiner.

Around the web, June 4

• "Lerach disbarred, but could return for Armageddon" [CalLaw Legal Pad]
• Calif. Supreme Court decision banning balance billing will harm emergency room care [Mark Morocco, L.A. Times via White Coat]
• Distinguishing the injured from the uninjured in the MoistureLoc contact lens cleaner mass tort [Beck & Herrmann]
• New pressure on New York Assembly Speaker Sheldon Silver to disclose his earnings from tort firm Weitz & Luxenberg [NY Post]
• "How dare you petition the government?" New lobbying restrictions will curb unwanted advocacy in the capital [ShopFloor]
• Salon.com columnist Glenn Greenwald, of the ever-accusatory manner, had case before Sotomayor as lawyer, got 1/3 loaf [WSJ Law Blog, scroll]

June 3, 2009

Around the web, June 3

• "Court of Appeals Affirms Exclusion of Junk Science In Mold Case" [Cal Biz Lit]
• "GM Bankruptcy Underway and the Asbestos Plaintiffs' Lawyers Already Have Appeared in Force" [Hartley]
• On Thursday, House Judiciary holds hearing on trial-lawyer-backed bill to crack open settlement confidentiality and protective orders [Wood, ShopFloor]
• Institutional investors vs. Royal Dutch Shell: sign of things to come in European class actions? [Ben Hallman/AmLaw Litigation Daily, Karlsgodt]
• In hot pursuit of drywall: "Florida builders and the not-so-Great Wall of China" [James Thorner, Popular Mechanics via ShopFloor]
• Jump into a schoolyard fight? You probably can't win damages from the school for your injury [Hochfelder]

May 14, 2009

Another Nail in the Coffin for the Thimerosal-Autism thesis

On Friday Maryland's highest court, confirming its intermediate appellate court, made it more difficult for plaintiffs to qualify as expert witnesses in future vaccine cases -- this is yet another thimerosal suit against Wyeth.

Jamarr Blackwell is both autistic and mentally retarded. His parents sued, claiming that his disabilities were caused by thimerosal-containing vaccines administered when he was a baby. They had FIVE expert witnesses to support their theory of causation.

Wyeth's attorneys responded that the causal connection between thimerosal and autism is not generally accepted by the scientific community, and that the Blackwells' experts were not qualified to testify under Maryland's version of the "Frye rule." Maryland's High Court held that although Dr. Geier, the Blackwells' expert in epidemiology, may have used data collected in generally accepted ways, the "analytical gap" between the data and the experts' conclusion on causation was too great to justify the results. The Court, moreover, concluded that neither Dr. Geier's methods nor his theory of causation were generally accepted in the relative scientific community. Finally, the court found that none of the experts had sufficient "knowledge, skill, experience, training, or education, primarily in the field of epidemiology, to proffer reliable expert testimony on matters of complex and novel scientific inquiry...." This should prove to be a powerful precedent in the many states still using the Frye rule.

Here's the link to the AmLaw Daily summary of the ruling.

Around the web, May 14

• Columnist Michael Kinsley warns Congress against legislative folly of repealing medical device preemption [Washington Times, WSJ Health Blog, testimony, PDF; ShopFloor]
• CBS "60 Minutes" enlists on the plaintiff's side in Chevron/Ecuador battle [Washington Times, CEI OpenMarket, Business & Media Institute, ShopFloor; earlier posts]
• Both GOP candidates for New Jersey governor, Chris Christie and Steve Lonegan, include litigation/court reform in their platforms [NJLRA]
• Not easy to get Judge Weinstein to exclude scientific testimony on a Daubert motion, but he did it in a Zyprexa case [Beck & Herrmann]
• More on economic effects of unionization [Goldberg/NRO]
• Arizona, Idaho, Utah, Vermont best, and Florida, Hawaii, Louisiana, Maryland, Massachusetts, New York worst: the 50 states ranked according to the freedom of their property/casualty insurance markets [CEI/Heartland]

April 16, 2009

April 16 roundup

• Bill being pushed in Texas legislature would pull more defendants into asbestos litigation [Legal NewsLine, Texans for Lawsuit Reform (PDF)]
• Often assailed as fraught with hidden bias, testing of job applicants may be less biased than the alternatives [Ray Fisman, Slate]
• Annual Clifford symposium at DePaul earlier this month does not look to signal any break from the series' reliably plaintiff-oriented reputation [Stier, Mass Tort Lit]
• "Oregon drops punitive damages claim to save jobs" [Cal Punitives]
• Two dubious expert evidence rulings on multiple chemical sensitivity [David Bernstein @ Volokh]
• Public Citizen alum and Georgetown lawprof David Vladeck, known as a committed and tireless opponent of pretty much every opinion advanced on sites like this one, named to head Federal Trade Commission's Bureau of Consumer Protection [CL&P, ShopFloor]