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November 2005 Archives

Next Wednesday at the National Press Club in Washington, D.C. the State Government Leadership Foundation is sponsoring a half-day conference (brochure, PDF) on the role of state attorneys general. Highlights include a debate between AEI's Michael Greve and former Maine AG James Tierney, and a debate between DaimlerChrysler's Steven Hantler and trial lawyer Richard Scruggs. At least five sitting AGs are confirmed participants.

Plunkett v. Merck begins

And Judge Eldon Fallon has suggested that the case will last only two to three weeks in his courtroom, rather than the seven-week trials we've seen so far. The nine-person jury (six members, three alternates) was selected in under two hours. An early AP report yesterday uncritically repeats plaintiff's claim that Dicky Irvin was in "very good health", even though, as Point of Law readers know, that's not true.

Unlike the Ernst trial, we won't see opening statements accusing Merck of being a cash machine; Fallon announced he wouldn't allow prejudicial attacks like that. Nevertheless, plaintiff's attorney Andy Birchfield suggests some interesting "science": "It didn't matter what the dose was. It doesn't matter how long you took it," he told the jury, thus propounding the fascinating theory that Vioxx is a miracle drug that has the same effect if one takes one pill or 550. (And, of course, if Birchfield's theory is true, there's no reason to take Vioxx off the market, because all those who have already taken a single Vioxx pill are just as "doomed" as those who are taking it continuously.) Birchfield used part of his hour-long opening statement to talk about Dodgeball Vioxx, which we discussed Nov. 10.

(Anne Belli, "Expert testifies Vioxx can cause deadly clots", Houston Chronicle, Nov. 29; Matt Daily, "Widow's lawyer says Vioxx killed Florida man", Reuters, Nov. 29; AP/Forbes, Nov. 29; Peter Geier, "Vioxx Litigation Goes Federal", National Law Journal, Nov. 29; "Merck Is Likely to Win First Federal Vioxx Suit, Lawyers Say", Bloomberg, Nov. 29; George E. Jordan, "Vioxx cases face tougher litmus test", Star-Ledger, Nov. 27; Heather Won Tesoriero, "Judge's Ruling Tempers Merck's Hopes for Trial No. 3", Wall Street Journal, Nov. 25 ($)). We covered the Daubert rulings in the Plunkett case on Nov. 23; as Evan Schaeffer points out, the National Law Journal inaccurately reports as if these motions had not been decided yet, though the plaintiffs still need to worry how the Fifth Circuit will handle an appeal.

The sloppiness of the plaintiffs' experts can be seen in AP report on the lead-off witness, Dr. Benedict Lucchesi (Sep. 20):

"I think it is highly likely that Vioxx contributed to Mr. Irvin's heart attack," said Lucchesi, who testified at the two other Vioxx trials.

But under cross examination, Lucchesi conceded that he never looked at the slides of Irvin's blocked artery and acknowledged [there] is debate is the scientific community whether an imbalance of prostacyclin and thromboxane leads to heart attacks.

Lucchesi also said his convictions about what caused Irvin's death differed from two other plaintiff experts - a pathologist who believes, as does Merck, that ruptured plaque triggered the heart attack, and another pathologist who was noncommittal.

Relatedly, the AP backgrounder on MDL litigation explains another reason why Mark Lanier is trying to avoid federal court—he doesn't want to share money with the plaintiffs' attorney steering committee. Lanier also has a great quote that effectively admits the lottery nature of the status quo: "In mass torts, it's like batting in baseball. The plaintiffs are great if they bat .333 (win 1 of 3)." (Brenda Sapino Jeffreys, "Hundreds of Cases Hang in Balance as First Federal Vioxx Trial Begins", Texas Lawyer, Nov. 29).

Unconscionable flood exclusions?

Mississippi AG Jim Hood was on the New York Times op-ed page recently making his case for mulcting the insurers. Martin Grace lays out some of the reasons Hood's all wet (more). More: And here's an admiring profile of Hood ally Dickie Scruggs in the Atlanta Journal-Constitution, if you're in a mood to read that sort of thing.

Chester County, Pa. neurosurgeons

Medical liability reform activist Donna Baver Rovito faces off against a tag-team of pseudonymous and anonymous trial bar advocates, in the comments section at Kevin Pho's. More on Chester County neurosurgeons here.

The tale of Ray Harron, asbestos doctor

Today's New York Times has an extensive look at Ray Harron (Jul. 15), who has earned millions of dollars doing up to 150 cursory x-ray readings a day at $125/pop and "diagnosing" asbestosis or silicosis for litigation purposes. Harron double-dipped with over 1000 claimants, diagnosing asbestosis in one case and silicosis in another. It's a family business; his son, Andrew Harron, has also submitted claims to the Manville Trust, which has announced that it will no longer pay claims based on diagnoses from the Harrons now that questions have arisen about Harron's first 76 thousand diagnoses. (Jonathan Glater, "Reading X-Rays in Asbestos Suits Enriched Doctor", New York Times, Nov. 29) (hat-tip to T.S.).

No freedom of contract in Connecticut

Gregory Hanks and his family went snow-tubing in February 2003. The Powder Ridge Ski Resort in Middlefield wouldn't sell him a ticket unless he agreed to waive suit for alleged negligence. Hanks did agree (admittedly because he believed he could get out of the waiver), broke his ankle, and sued. Hanks won his gamble; the state supreme court has ruled 4-3 that the resort couldn't enforce the contract against Hanks (though he realized the benefit of the bargain of the lower price based on his promise), and his suit will go forward.

Attorney John B. Farley, one of the lawyers representing Powder Ridge, said he's not sure the ski area will continue to offer snow tubing in light of the ruling. "I don't know that they can afford to offer that activity without the benefit of these kinds of releases."

He said the ski resort will now have to analyze whether it's economically feasible to offer snow tubing.

"Assuming they can get insurance, how much will it cost?" Farley said. "It definitely makes it more expensive. It's just a question of whether it's prohibitive."

(Lynne Tuohy, "Liability Waivers Flawed", Hartford Courant, Nov. 28; Hanks v. Powder Ridge Restaurant Corp.; Hanks v. Powder Ridge Restaurant Corp. dissent).

Blogs on Posner's Budget Rent-A-Car opinion

Lots of blog commentary on my post and on the Posner opinion.

If aspirin were invented today...

No way it could get through the legal gauntlet. "If you were somehow able to change history so that aspirin had never been discovered until this year, I can guarantee you that it would have died in the lab. No modern drug development organization would touch it." Its risks, after all, are higher than those of many drugs that have been targeted by successful litigation campaigns or whose sale the FDA has prohibited. Same with acetaminophen and penicillin, writes Derek Lowe ("The Pipeline") on our sister Manhattan Institute website, Medical Progress Today. Tom Kirkendall comments.

It's been nearly three months since Mark Lanier won a $253 million verdict in Ernst v. Merck in the ongoing Vioxx litigation. But, curiously, the plaintiff hasn't moved to enter the judgment. A plaintiff's attorney (Evan?) can perhaps correct me, but the stereotype is that the plaintiff wishes the case to move as quickly as possible, while a defendant seeks delay, because the plaintiff hopes to get the money in the pocket sooner, rather than later.

I can think of only one reason why there has been no motion to enter judgment: Lanier has a strong expectation that his illegitimate verdict in Ernst will be reversed on appeal, and he's hoping that there will be more plaintiffs' verdicts on record before that happens. The chess master Nimzovich famously said of a move that "the threat is stronger than the execution." Such may be the case here: so long as there is a $253 million verdict in place, that gets the headlines, attracts clients (Lanier is competing with the lead plaintiffs' attorneys in New Jersey and the MDL, and may be angling for a lucrative seat at the table), and creates investor pressure on the company. Once that verdict is turned into a $26 million judgment (after punitive damages caps) or a $0 reversal, or even if investors and reporters see what Merck will file as an appellate brief, Lanier looks like much less of a hero. In the worst-case scenario for him, an appellate court reverses Lanier's most famous verdict before he has the chance to be elected to the Senate.

Perhaps I'm wrong, and Lanier has other reasons for not zealously representing Mrs. Ernst and trying to get her winnings as soon as possible than the sort of conflict of interest I'm describing. But perhaps a curious reporter might raise the question with Lanier the next time they go to him for a soundbite about the merits of the federal litigation that begins tomorrow.

In the wake of Avery, GEICO is asking a Madison County judge to decertify a fifty-state class action against it over its use of CCC Information Services valuations for totaled vehicles, and the decision should be straightforward. The suit was an all-too-typical "consumer fraud" class action brought entirely at the behest of attorneys alleging that a normal business practice is really "fraud" and hoping to extort a settlement out of a defendant by leveraging it through improper class certification. (The plaintiffs' attorneys have yet to identify how GEICO was supposed to have non-fraudulently valued wrecked automobiles—other benchmarks value some cars both higher and lower than GEICO did.) The GEICO suit added new named plaintiffs after a deposition where the original one wasn't quite cooperative with his attorneys:

In a deposition at the Lakin firm, [Myron Billups] griped about how his attorneys bothered him.

�I didn�t want to [sue] in the first place,� he said, �but it got so every night or every day somebody was calling, calling.�

A Geico attorney asked if he was in any other lawsuits. Billups said, �Geico�s going to go away, you know.� He emphasized: �The Geico thing will be dropped.�

When asked if he knew where his suit was pending, Billups said, �I think my attorney here would tell you.�

�I don�t even open the envelopes," he said. "I�m sorry to admit that but I�m just - I�m at a point in my life where, you know, I don�t want to be bothered.�

Billups allegedly rejoined the cause. (Steve Korris, "Years before Avery decision, Geico urges Byron to hold off", Madison County Record, Nov. 24). Plaintiffs' attorneys include the Lakin law firm and Thomas Maag (Dec. 28; OL Oct. 29).

Realtors' fees, and lawyers'

Real estate agents charge fixed percentage fees for handling home sales. Today, at least in the case of the more pricey residential markets, the resulting fees can seem very high in relation to the services being rendered, yet they are highly resistant to price competition. Not surprisingly, many antitrust and regulatory experts believe that ending the system of fixed realty commissions (perhaps by removing government policies that prop it up) would work to the great benefit of budget-minded consumers, as happened earlier with stockbroker and travel-agent commissions. David Giacalone is reminded of another variety of fixed-percentage fees which likewise appear to be high and sticky even in straightforwardly served cases, namely the fees charged by personal-injury lawyers. How long before they come under reformist scrutiny too?

Spitzer's payola settlement

Joshua Wright, one of several guestbloggers holding forth at Larry Ribstein's, argues that big record labels like Warner and Sony actually have reason to be glad that the New York attorney general is punishing them for participating in costly song-promotion schemes. (Please don't throw us in that briar patch, Mister Spitzer!) See also Jul. 28. Tom Kirkendall comments too, and also has things to say about Spitzer's decision not to pursue criminal charges against former AIG chief Hank Greenberg and about how the Grasso affair (more, more) is playing out in the press. And Prof. Bainbridge is provoked by some pro-Eliot comments in the magazine New York.

Post-Turkey Reading

Those who've been following my discussion with Bill Sage -- or those who haven't -- check out my latest (lengthy) entry on the trial lawyers' business model, drug products liability, and medical malpractice. The entire conversation -- which begain with a good bit of back-and-forth rambling over who stood where but has since moved on to substantive issues -- is here.

In John Langan v St. Vincent's Hospital of New York (2005 NY Slip Op 07495), a New York state appellate court decided last month that a same-sex partner could not proceed with a wrongful death lawsuit on behalf of the deceased. The deceased and his partner were citizens of New York who had travelled to Vermont to be joined in a civil union. In February 2002 the deceased was hit by a car and suffered a severe fracture requiring hospitalization at St. Vincent's Hospital of New York. After two surgeries Conrad died. Naturally, his partner claims that St. Vincent's negligence caused the death.

But as all lawyers know, wrongful death is almost everywhere based on statute, not on common law. The relevant portion of New York's wrongful death statute provides as follows:

"The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death".

The class of "distributees" is set forth in the statute. Included in that class is a surviving spouse. Homosexual partners are not spouses.

Two of five judges declined to interpret the statute, however, claiming that New York had no "rational reason" to distinguish, in its wrongful death statute, between spouses and homosexual partners. Linguistic rules, judicial restraint and the "rational" recognition of marriage prevailed for the majority, however.

That's the argument of economic firm Bates White in a report that they released last September, on the grounds that the medical criteria in the FAIR Act are so permissive as to allow millions of non-asbestos-related claims on the fund. A Senate hearing on the 17th featured debate on the report.

The Asbestos Alliance supports the bill; the Coalition for Asbestos Reform opposes it as insufficient, while the trial lawyers' associations are concerned that the bill may limit the lawyers' take to seven billion or so dollars. "The ABA supports enacting federal legislation that would require claimants to meet specific medical criteria before filing action in non-malignant asbestos cases and would toll all applicable statutes of limitations until such time as the criteria are met."

Senators Jeff Sessions, John Cornyn, Charles E. Grassley, Jon Kyl, Lindsey O. Graham, Sam Brownback, and Tom Coburn have expressed reservations about the current version of the Specter-Leahy bill; their additional views in the Senate report (at pp. 91 ff. in the full pdf version) is must-reading on the subject. One problem with S. 852 is that it would override reforms in states that are fixing their asbestos litigation abuses, like Texas; Governor Rick Perry wrote President Bush in May to oppose the bill for this reason.

AEI's Kevin Hassett and Peter Wallison and economist Robert Shapiro are co-authors of a study "Assessing the Economic Impact of Proposed Asbestos Legislation" that suggests the benefits of the trust-fund approach are illusory.

An interesting alternative to the Specter-Leahy bill that hasn't gotten enough discussion is Rep. Chris Cannon's H.R. 1957, which has sixty co-sponsors, and provides meaningful reform of asbestos litigation through establishing medical criteria and limiting deep-pocket searches through a requirement of proportionate liability.

"How Patent Suit Became Judge's Nightmare"

Stephanie Stoughton of the Associated Press has details (Nov. 20). Research In Motion Ltd. could be forced to pay a giant settlement to avoid an injunction that would put them out of business—even though they expect the patents in question, owned by patent-holding company NTP Inc., to eventually be invalidated by the patent office, which has yet to act. "Despite RIM's optimism about the office's deliberations, the nearer-term prospect of the court injunction could force the company into a settlement as costly as $1 billion." See also OL May 2.

In Budget Rent A Car System Inc. v. Consolidated Equity (7th Cir. Nov. 4, 2005), the defendant submitted a frivolous appeal, Budget filed a four-page jurisdictional brief that resulted in the successful dismissal of the appeal, and the Seventh Circuit awarded Budget its fees—but then changed its mind.

Stossel Endorses Loser-Pays

ABC News' John Stossel endorses loser pays as a solution for excessive lawsuits.

Stossel has endorsed loser pays in the past, but the momentum this reform has developed in the past few years makes each public reference to it interesting.

Daubert is an important precedent requiring courts to act as gatekeepers to exclude unreliable scientific evidence. Of course, to have that effect, judges must actually provide some set of standards.

The plaintiff in Plunkett v. Merck wishes to use the expert testimony of Dr. Winston Gandy, Jr. The court found that Dr. Gandy's expert report, which, though nineteen pages, had only two and a half pages of analysis, was "wholly conclusive, rather than explanatory." Moreover, his "deposition testimony is littered with circular reasoning and instances where he is unable to answer certain questions regarding the literature and studies he said he had read." The report and deposition testimony of Dr. Thomas Baldwin suffered from similar problems. Nevertheless, Drs. Gandy and Baldwin will be allowed to testify to the jury their opinions that Vioxx caused the death of Dicky Irvin (on which, see Nov. 17). Dr. Lucchesi (Sep. 20) will also be allowed to testify on a wide range of topics.

The court correctly states that its obligation is to review methodology, rather than conclusions. But if scientists are allowed to meet the methodology hurdle by merely asserting that they've based their opinion on the relevant scientific studies, and then jumping to a conclusion, there's next to no bar to junk science whatsoever; experts-for-hire can baldly make whatever claims they want so long as they jump through the large hoop provided by the court.

Merck did benefit from some aspects of the court's ruling: one plaintiff's expert was excluded in part; Merck will be allowed to introduce the April 2005 FDA memo showing that Vioxx is no worse than other NSAIDs; the court found that "there is significant, scientifically reliable information supporting Merck's contention that naproxen is sufficiently cardioprotective to explain the VIGOR test results"; and Merck will be allowed to argue that it needed FDA approval to make the major change to the label that plaintiffs insist should have been made. While Judge Fallon is being lenient in letting in evidence and punting decision-making to the jury, he at least is not following the New Jersey court's lead in excluding scientific evidence that exonerates Merck. Meanwhile, any victory the plaintiffs win in the first federal trial is at risk of being overturned by the Fifth Circuit Court of Appeals because of the use of conclusory expert opinions.

The court's Daubert opinion is available at the November 18 entry on the AEI Liability Project Documents in the News page.

Transcript of AEI Vioxx event

The full transcript of the panel discussion sponsored by the AEI Liability Project on September 7 is now on the web. The panelists were AEI's Jack Calfee, former FDA general counsel Dan Troy, plaintiffs' attorney Evan Schaeffer, and myself; AEI's Peter Wallison moderated.

Final update: Oracle settlement

One can't make even a meritless lawsuit go away quickly without paying the extortion protection money attorney's fees, so the Oracle settlement (Sep. 27; Sep. 20; Sep. 17) will continue to go forward after a California court has approved the modifications, though now Larry Ellison, rather than Oracle shareholders, will pay the requested $22 million in attorneys' fees to go along with Ellison's $100 million charitable donation. The settlement is an improvement over the previous version, because innocent shareholders aren't tagged with paying attorneys in a derivative suit ostensibly on behalf of the corporation. But, given that the purpose of the settlement is to get money to go to charity, and given that Ellison has indicated that his billions will go to charity when he dies, doesn't the settlement actually reduce the total that charity will receive by diverting $22 million to attorneys?

Ellison comes out "ahead": for only $22 million, he avoids millions of dollars of legal expenses and having to spend several weeks in a San Mateo County courtroom and insures against the slim risk that a jury will find him liable for billions in damages. (That the plaintiffs are settling for pennies on the dollar with no benefit to the corporation on whose behalf they're ostensibly suing, as well as the fact that a Delaware court has already absolved Ellison of the same charges, suggests that even the plaintiffs recognize the suit as meritless.) The plaintiffs' attorneys come out ahead with $22 million in free money. Shareholders are cost nothing. But it's hard not to think that society and justice as a whole are worse off by this settlement, not least because it will encourage other bogus lawsuits in the future. (Michael Paige, "Judge OKs Ellison's $122M settlement", MarketWatch, Nov. 22). A third, federal, suit on the same allegations remains pending. (Hat-tip to Lyle Roberts.)

Correcting Wisconsin's high court

The editorialists of the Milwaukee Journal-Sentinel are hardly known for avid litigation-reform enthusiasm, but they agree that the Wisconsin Supreme Court's recent decision opening the floodgates on lead paint liability (OL Jul. 23) went too far:

With due respect to its diligence and understanding of the law, the state Supreme Court goofed in July on lead paint. In an overzealous attempt to protect the public, the court went out on a limb so perilously thin that it leaves companies that may be innocent in product liability lawsuits vulnerable to economically damaging suits....

This is grossly unfair to the paint industry and sets a dangerous precedent that, as WMC points out, could leave other Wisconsin industries open to similar suits that may be almost impossible to defend against. And because the ruling appears to be the first of its kind in the nation, it could put these companies at an enormous competitive disadvantage.

The state legislature has been moving to correct the paint decision and also have responded to the state supreme court's lawless decision (Jul. 14, Jul. 19, Aug. 11, Aug. 16, Aug. 30) striking down medical malpractice damage limits by re-enacting the damage limits at a substantially higher level (Journal-Sentinel, Insurance Journal coverage). Both measures, however, face an uncertain fate on the desk of Democratic Gov. Jim Doyle, who is considered close to the litigation lobby.

Illinois venue-shopping: a study

The Illinois Civil Justice League has produced a 26-page study entitled "Litigation Imbalance: The Need For Venue Reform In Illinois" (PDF). It documents the tendency of three counties in the populous state (Cook, Madison and St. Clair) to attract far more than their share of major civil litigation. In addition to marshaling statistics which indicate that the venue-shopping phenomenon is worsening with time, and providing the expected wealth of information on Madison County, the study suggests that the plaintiff's bar has been cultivating some additional counties as friendly territory, including Peoria County, the only highly litigious county in central Illinois, as well as a cluster of counties toward the southern end of the state.

Great moments in affirmative action

From a report in Canada's National Post today:

A federal government department has cancelled a three-day-old edict that essentially banned the hiring of able-bodied white men over the next several months.

The directive had said managers at the Public Works and Government Services Department could hire only the disabled, women, aboriginal people and visible minorities until at least the end of March....

A statement issued by the department yesterday suggested the policy had been "misconstrued by some as being non-inclusive. This was not the intention."

Earlier news reports on the new directive had prompted a public outcry.

Spitzer dropping charges

Why does it take a Texas lawyer to bring us the sharpest commentary on these financial prosecutions? Is Wall Street itself too scared, or too co-opted, or what?

"Impact of Litigation on Small Business"

The Small Business Administration Office of Advocacy last month released a study (and executive summary, both PDF) which "attempts to shed light on how small business fares under the constraint of litigation and calculates annual litigation costs." The researchers identified some thousands of small businesses that were parties in federal litigation between July 2002 and June 2003. They then employed small-group and telephone interviews to assess the nature of the costs (financial, managerial, and emotional) inflicted by the process. One lesson subjects said they had learned from their experience in court: "Be less trusting of employees, customers and other companies."

Alito and Warren Court reapportionment

The latest set of unfair attacks on Alito are over a 1985 essay answer criticizing the Warren Court's reapportionment decisions; this is being characterized as an opposition to the principle of "one man, one vote" or, worse, an opposition to "democracy." Professor Bainbridge refutes.

Missouri resident Steve Boren's suit against several welding-rod manufacturers accusing them of causing his Parkinson's disease is now proceeding in Madison County, Illinois. Press coverage hasn't yet mentioned whether Boren has a legitimate reason to be bringing his suit across in a state different than the one he lives. Boren's testified that he knew that he was supposed to use protective equipment, but thought the warnings were just for respiratory diseases, and is claiming that had he been warned about the risk for Parkinson's from welding (a risk that lacks evidence even now), he would've avoided his injury. (Brian Brueggemann, "Welder seeks money after getting disease", Belleville News-Democrat, Nov. 21; Ann Knef, "Medical expert testifies in weld rod trial", Madison County Record, Nov. 8).

Madison County is home to the only jury that has awarded damages in a welding case in the ten cases tried so far. The plaintiffs' bar is already engaging in mass screening in hopes of turning welding litigation into the next asbestos. Seventy percent of the 4500 welding cases before a Cleveland federal judge became involved through mass screenings; only 14% incurred medical expenses before suing; some 40% have previously sued for asbestos or silica exposure and are repeat litigants. In August, MDL Judge Kathleen McDonald O'Malley ruled that she will not preclude plaintiffs' experts on a Daubert motion, however. (Timothy Aeppel, "Plaintiffs in Welding-Fumes Case Win a Skirmish in Federal Court", Wall Street Journal, Jul. 26; Lorraine Woellert, "A Break For The Defense", Business Week, Nov. 7). See also Aug. 22.

In May, the largest epidemiological cohort study done on the issue to date, of nearly 10,000 Danish welders, found welders at no increased risk of developing Parkinson�s disease. (Jon P. Fryzek et al., "A Cohort Study of Parkinson�s Disease and Other Neurodegenerative Disorders in Danish Welders", Journal of Occupational and Environmental Medicine, May 2005). The Welding Rod Information Network has a full list of studies on the subject.

New California junk-fax law

The U.S. Chamber of Commerce is alarmed at the implications of the new law out of Sacramento, under which even an established business relationship is no longer enough to render a fax legal, absent prior written permission:

Joy Harmon Sperling, an attorney with Pitney Hardin in Florham Park, N.J., who represents banking clients, said the problem is that national banks want to broadcast fax interest rate sheets to thousands of mortgage brokers across the country, but California's rule creates a problem.

Her advice to clients: "I would start getting clients lined up to have written permission. Do not fax into California without written permission," she said.

More on junk fax laws: Jul. 13; OL Dec. 15, 2004, etc.

Blawg Review #33

Ted and I are the hosts of this week's law-blog carnival, over at Overlawyered.

More Katrina shopping

This time it's law, rather than for venue, being shopped for in the aftermath of the hurricane:

In one of several lawsuits consolidated in federal court in Baton Rouge, La., Mr. Becnel, whose Reserve, La., firm is called The Law Offices of Daniel E. Becnel Jr., charges that Murphy Oil USA Inc. failed to take the necessary precautions to secure a tank that leaked 819,000 gallons of heavy crude oil into a St. Bernard neighborhood. The suit seeks to have the El Dorado, Ark.-based oil company pay the owners of around 2,000 homes the value of their property and punitive damages.

Mr. Becnel said he would assert Arkansas law in the case because that's where decisions regarding the plant's operation were made and it is a state where punitive damages are allowed in such cases, whereas Louisiana is not. (emphasis added)

-- from a news story by Michael Bradford in the November 14 issue of Business Insurance (sub-only). More: NOLA news weblog (New Orleans Times-Picayune), Sept. 28.

Hood: venue's the key to Katrina win

You give us the right venue, we'll give you the world:

[Mississippi] State Attorney General Jim Hood testified that he believes his office will be successful in its lawsuit against the national insurance industry -- if the matter is returned to state chancery court, as he also believes will happen. "Then we can get some relief for our homeowners."

-- from a Nov. 2 press release issued by the Mississippi House of Representatives. More here, here, here and here.

Rocky Mountain News columnist Peter Blake alerts us to a new paper by Stanford economist Jeremy Bulow which Blake says exposes a little-explored ramification of the 1998 multistate tobacco deal, namely that its distribution of loot works to the disfavor of states with fast-growing populations:

Colorado's share of the annual take is roughly 1.15 percent, even though we had 1.56 percent of the nation's population in 2004.

That 1.15 percent is fixed in perpetuity even though our share of the national population will soon approach 2 percent.

In other words, Colorado is and will continue to be a donor state, just as it is in federal highway funding.

The imbalance might not matter were payments into the fund (at the expense of smokers in practice, though ostensibly made by tobacco companies) also held proportionate to old population levels. But instead payments into the fund are tied to current cigarette sales, which suggests the deal has a widening redistributive effect permitting states with relatively shrinking populations to profit at the expense of those growing fast.

I haven't been able to find an online link to Bulow's new paper. For a sampling of his highly regarded earlier work on the tobacco deal, see here, here (speech while director of the Bureau of Economics at the Federal Trade Commission) and here (PDF)(calling deal "incredibly corrupt; had it been made in any other industry it would surely have been declared illegal"), and OL Jul. 29, 1999; see also OL Jun. 3, 2005.

Judge Higbee "selected the next seven cases to go to trial, all of which involve plaintiffs who took the drug for 18 months or more, lawyers said.

"The first case will be heard in Atlantic City beginning Jan. 30, 2006, followed by another on March 27, according to lawyers who attended a closed-door meeting with the judge.

"A further meeting has been set for Nov. 28, when the judge is expected to say which of the seven cases she selected will be heard in January, lawyers said." The number is down from earlier reports of ten to twenty long-term-usage cases. There is some discussion of trying multiple cases in a single trial, a move that Merck will likely oppose.(Reuters/CNN, "Long-use Vioxx cases chosen for trial", Nov. 17).

ATLA blocking avian flu bill

The Washington Post's Jeffrey Birnbaum reports: "Legislation that would pour billions of dollars into the production of vaccines against avian flu and other pandemic diseases is threatened by the trial lawyers' lobby, which objects to proposed limits on lawsuits against drug manufacturers."

An autopsy found that Richard "Dicky" Irvin, Jr., whose death will be the subject of the first federal Vioxx trial in two weeks, had "moderate to severe" heart disease, with blockage of 60%-70% in the artery where his fatal blood clot occurred. Jere Beasley, the attorney for Irvin's widow, Evelyn Irvin Plunkett, scoffs at this fact: "He had no more plaque build-up than any other 53-year-old man in America." (And, after all, heart attacks are completely unknown amongst American 53-year-olds.) Because Irvin had been taking Vioxx for 23 days (after getting a 30-day prescription from his son-in-law without an examination), the plaintiff wishes to attribute the heart attack to Merck rather than to, say, Irvin's 230-pound weight, fast-food diet, 149/90 blood pressure, sedentary lifestyle, and family history of heart problems. (Fox News, "Next Trial to Focus on Limited Vioxx Use", Nov. 16; Bloomberg, "Merck's Next Vioxx Trial May Test Heart Risk of Short-Term Use", Nov. 16).

"Using taxpayer money to sue taxpayers"

Wisconsin attorney general Peg Lautenschlager is suing the Milwaukee Metropolitan Sewerage District (MMSD). Will Wilson, at AEI Federalism Project's AG Watch, describes having one of government's hands administer a ruler-slap to the other hand as a natural consequence of "AG logic".

The YLS endorsement

In the New York Times article detailing how Yale Law School is the scene of little support for and much opposition to the nomination of its alumnus Sam Alito, Larry Ribstein notes a remarkable comment by Prof. Owen Fiss, on Clarence Thomas, another YLS alum: "The one lesson for the law school was that we didn't work hard enough to oppose him."

Who is this "we"? Is Fiss saying that Yale should have an official position on a political issue? If so, is anyone else bothered by the notion that an educational institution should have and enforce a particular orthodox view? Or by the possibility that one of its most senior and respected faculty members thinks it should?

Aside from the dissenting views of Profs. Priest, Romano, Schuck, Macey and a couple of others, it may well be that Yale Law can be described as a collective political "we". At Concurring Opinions where Daniel Solove discusses the issue, Robert Schwartz posts a comment worth preserving:

Ben Stein wrote the second of two columns about whether he should continue to give money to Yale Law school, seeing as how Yale's endowment now exceeds ten digits and is growing by leaps and bounds. He said:

"There are ties that are more than rational, more than sensible. They are the mystic chords of memory to which Lincoln referred. ... I'll keep giving to Yale, and with a full heart, for the memory of Henry Varnum Poor and the many other kind souls of New Haven. Not everything is about reason."

A fund raiser's delight that column was. So here is the question, should Yale want its alumni to evaluate its fund raising requests through the golden glow of nostalgic memory, while it evaluates them through the cold eye of hyper-partisan liberal politics[?] Should it ask only for mercy and give only justice? Is that going to work on a long term basis?

More: Yale Daily News (faculty members deny unified stance of opposition to Alito).

Welcome medical bloggers

GruntDoc, KevinMD and MedPundit all link to Jim Copland's and Bill Sage's ongoing discussion of the medical liability situation. GruntDoc has an especially generous comment:

just spent about 30 minutes reading, and cannot find any one passage to abstract, it's that good. It will probably not make either the doctor or [ATLA] side completely happy, but it's a very enlightening discussion.

"C-Sections in U.S. Are at All-Time High"

The rate last year stood at 29.1 percent of all births, "up from 27.5 percent in 2003 and 20.7 in 1996. The increase is attributed to fears of malpractice lawsuits if a vaginal delivery goes wrong, the preferences of mothers and physicians, and the risks of attempting vaginal births after Caesareans." (Mike Knobbe, AP/Washington Post, Nov. 15). We've been on the case for a long while: see Aug. 4, OL Nov. 29, 2004, and many others.

Mark Lanier on jury selection

"A great man said you can fool some of the people all of the time. I am looking for 12 of those," says a cartoon posted on the wall of the Lanier Law Firm offices, according to a 2001 Wall Street Journal article linked to from the Lanier Law Firm website. The article itself describes how attorneys like Lanier extended the circle of asbestos defendants beyond the original manufacturers to include such alleged wrongdoers as Procter & Gamble, Campbell Soup, MetLife, and Dow Jones.

Daubert hearing at MDL

Janet McConnaughey of the AP covers the Daubert hearing at the Vioxx MDL before Judge Fallon.

Irvin v. Merck goes to trial in the MDL in late November in federal court in Houston. Other scheduled trials in the next few months: Zajicek (Jackson County, Tex., March 20, 2006);
Guerra (Hidalgo County, Tex., April 17, 2006), and Kozic (Hillsborough County, Fla., May 1, 2006).

In the New Jersey action, there is a scheduling conference this Thursday, where Judge Higbee will discuss her final decision on whether to proceed by putting the "eighteen-month" cases on a fast-track. (CNN, Nov. 11).

Elsewhere, Morgan Stanley analysts show why they should talk to attorneys before issuing investment ratings: their analysis views Higbee's preliminary decision as "positive for Merck" on the mistaken belief that this will result in the dismissal of the short-term cases.

Speaking of "sloppy mischaracterizations"

[Alito] wrote sparely [in Farmer]: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." Alito then simply applied the facts of the New Jersey statute to the Supreme Court's holding in Stenberg and noted that the New Jersey statute failed because it was virtually indistinguishable from the Nebraska law that had just fallen. [...] It was a win for stare decisis, yes. But not for choice.

(Dahlia Lithwick, "Three-Quarter Truths", Slate.com, Nov. 14). Stare decisis is, of course, the doctrine whereby judges decide to follow precedent because "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 , 406 (1932) (Brandeis, J., dissenting)).

But Alito was applying a different principle, the one Lithwick quotes: "follow[ing] and apply[ing] controlling Supreme Court precedent." Stare decisis is discretionary; but following binding precedent is mandatory (hence the term "binding"). See, e.g., Khan v. State Oil Co., 93 F. 3d 1358 (7th Cir. 1996), rev'd, State Oil Co. v. Khan, 522 U.S. 3 (1997). In the lower-court case, Judge Posner followed binding Supreme Court precedent that he felt was wrongly decided; on appeal, the Supreme Court showed that it agreed with Posner by unanimously reversing his decision, because his opinion showed strong justification for the Supreme Court to disregard stare decisis for the 29-year-old "super-precedent" of Albrecht.

It's not clear whether Lithwick believes that lower-court judges have the discretion to disregard binding precedent when they disagree with it strongly enough, or whether Lithwick is committing the same sort of "sloppy mischaracterization" she accuses others of making in the subhead of her piece.

Mainstream media outlets (ABC, Seattle P.I.) are reporting today on a group in South Dakota pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.

The group, South Dakota Judicial Accountability, says little about itself on its website and does not disclose its backers apart from Bill Stegmeier, the small business owner who founded the organization. The group's website decries "judicial activism" but does not specify the particular harms they hope to remedy by means of their "Judicial Accountability Initiative Law".

The J.A.I.L. Amendment, among other things, would amend the South Dakota Constitution to create a "Special Grand Jury" to judge both "issues of law and fact" in complaints against South Dakota judges. The Special Grand Jury would have the power to remove judges from office and to refer judges for criminal prosection.

The J.A.I.L. Amendment purports to strip all South Dakota judges of any claim to immunity for civil suits brought against them (see paragraph 2, "no immunity shall extend to any judge of this state") but a later provision (see paragraph 15) purports to empower the Special Grand Jury to determine, "whether or not immunity shall apply as a defense to any civil action that may thereafter be pursued against the judge."

Importantly, the J.A.I.L. Amendment suggests that South Dakota judges would have both civil and criminal liability for the "deliberate disregard of material facts" as well as "blocking a lawful conclusion of a case." Presumably, any judicial decision (granting or denying a motion for summary judgment, for example) might qualify.

While the motives of this citizens' group may have the sympathies of some who read this column, the J.A.I.L. Amendment is one of the worst reform ideas ever.


At least ten women have sued manufacturers of the Ortho-Evra contraceptive patch, claiming that it has caused them to suffer strokes and blood clots. According to MedPundit Sydney Smith, who casts a critical eye on the litigation, the device delivers an overall higher dose of estrogen, an agent known to be linked to the risk of blood clots and strokes, than does the oral contraceptive pill; on the other hand, it does not deliver a "spike" or brief surge of estrogen as does the pill. MedPundit says the risks of estrogen are "common knowledge" and reviewed by doctors with patients before birth control is prescribed:

Which leaves one wondering, what are those women and their lawyers thinking? Did they think because they absorbed the estrogen from their skin instead of their GI tracts that it took away all the risks?

Weiss blasts "Trial Lawyers Inc."

Since I missed the first day's worth of the Federalist Society Lawyer's Convention this weekend, I wasn't there for the panel on state attorney general lawsuits, in which (according to several audience members) Melvyn Weiss of Milberg Weiss waved a copy of the Manhattan Institute's "Trial Lawyers Inc." report and denounced it and the Institute in colorful terms. At the same panel, National Association of Manufacturers president and former Michigan governor John Engler is said to have cited statistics from TLI in his prepared remarks (& welcome Securities Litigation Watch readers).

William Watkins reports on a panel at the Federalist Society meetings Thursday. Professor John McGinnis was caught complimenting the Senator Specter idea (sometimes misattributed to Luttig, who seems to me to have been using the term "super-stare decisis" ironically) that a precedent that has been affirmed or accepted by judges from across the spectrum for a long enough time, then that case is a "super-precedent" entitled to great deference. "The house came down" when Judge Easterbrook responded with a five-word refutation: "Oh, you mean like Plessy?"

Karl Rove's speech to the Federalist Society

The most feared bogeyman of the American left speaks at the annual dinner of their most feared organization of bogeymen.

This week, we'll be having a Featured Discussion here at PointOfLaw.com on litigation and the health care sector. The starting point for the discussion is the Manhattan Institute Center for Legal Policy's new report, Trial Lawyers, Inc.: Health Care, which assesses the impact of litigation on American medicine. Like all our Trial Lawyers, Inc. publications, it's written as an "annual report" focusing on various of the plaintiffs' bar's business lines--in this instance, the broad expanse of health care from drug and medical device manufacturers to doctors and hospitals to nursing homes and HMOs.

The discussion will be between myself and Bill Sage, a doctor and lawyer who's a professor of law at Columbia (and, this year, a visiting professor at Texas). One of the nation's foremost scholars in health care and the law, from 2002 through this fall Professor Sage has headed the Pew Charitable Trust's Project on Medical Liability in Pennsylvania. Earlier this year, Professor Sage made news as a co-author of a study, "Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988�2002," which according to its authors showed that "at least in Texas, the sharp spikes in insurance prices reflect forces operating outside the tort system." Ted Frank took issue with some of the study's purported findings with an in-depth analysis of its underlying data, here and here.

I'm very excited to have as distinguished a scholar as Bill Sage joining us for this discussion, and I look forward to what I anticipate will be an illuminating exchange.

U.K. mulls allowing contingent fees

The Americanization of the U.K. legal system proceeds, or so it would seem per the Daily Telegraph last month:

Businesses could face a big rise in class-action lawsuits if advice from the Civil Justice Council is adopted by the government.

The council, which is chaired by Sir Anthony Clarke, the Master of the Rolls, rules out an end to the "loser pays" principle on legal fees, but says that contingency fees, where lawyers can share the winnings as they do in the US, should be considered....

"Consideration should be given to the introduction of contingency fees on a regulated basis," the report says, "particularly to assist access to justice in group actions and other complex cases where no other method of funding is available."

According to the Telegraph, the recommendations could influence the eventual form taken by a civil justice reform bill being taken up for debate this month. The United States is among relatively few nations that permit attorneys to obtain a share of damages as their fee for prosecuting an action.

Corbusier did it

Says Colby Cosh of the French riots (via Eve Tushnet).

Angoff's activities again

Timed to influence the medical malpractice initiatives on the Washington state ballot last week, the misnamed Center for Justice and Democracy and Washington Citizen Action commissioned yet another report from trial lawyer Jay Angoff flinging accusations at the local medical liability insurers, in this case Physicians Insurance. Martin Grace discusses.

Tucker on Torkelsen and silicosis

Author William Tucker, whose byline now identifies him as an associate at AEI, has an op-ed in the Bergen Record discussing the John Torkelsen affair and its relevance to the Milberg Weiss investigation (see Aug. 8; OL Oct. 10, Nov. 5) and also the silicosis scandal. Key quote on the former:

"Flipping Torkelsen would be the end of any semblance of order as we know it," one worried plaintiff attorney told The Recorder, a California legal daily.

Said another: "He knows where all the bodies are buried."

(via newish blog Stoneposts, by litigation paralegal David Stone in Houston, which has numerous recent pointers to asbestos and silicosis stories).

Judge Alito has responded to L'affaire Vanguard. You can find the response here.

Much Ado about Almost Nothing
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The Boston Globe reports that Judge Alito has another non-recusal problem.

This one involves a law firm in which the Judge's sister worked. The firm had won a case before a 3rd circuit panel (which did not include Judge Alito). The losing side petitioned for en banc review before the entire 15 member court. This case is, if possible, more de minimis than the earlier one involving Vanguard Funds. Let me quote from the Globe report:

The US Court of Appeals for the Third Circuit, acting as a full court, denied a borrower's petition for a rehearing in the case. The bank that held the loan, MidAtlantic National Bank, was represented by Rosemary Alito's firm [McCarter & English of Newark -- it is conceded by all that Ms. Alito had no involvement in the case].

The decision by the full court in the case lists Samuel Alito and 14 other judges as being ''present" and notes that one judge -- not Alito -- said the case should be reheard. It lists McCarter & English as the counsel for the bank. The decision -- which supported the bank's position -- provides no indication that Alito or any other judges recused themselves.

Dana Perino, a White House spokeswoman, said last night that Alito ''does not have recollection of this case."
Perino said a majority of the court denied a rehearing without providing a vote tally. ''The only ones recorded are those that vote yes," for a rehearing, she said.

Perino said the law firm of Rosemary Alito did not file a brief in the full court appeal, suggesting that Samuel Alito may not have been aware of the connection. She said a computer program now in use to prevent conflicts of interest had not been established for such cases.

It is not clear that Judge Alito participated in this decision in any meaningful sense at all. His "sin" may have been to be totally unaware of the case, and to have failed to be obsessed with his sister. This kind of desperate searching for tiny imperfections suggests that the judge will have little trouble in the Senate. If this is all that obstructionists can come up with, a collective "puh-leese" seems in order.

As the Wall St. Journal (subscription required) reports, the Honorable Carol Higbee, the New Jersey judge overseeing 3,500 Vioxx cases in Merck's home state, told lawyers in a private conference on Monday that she wants the next 10 or so trials in her courtroom to involve plaintiffs who took the drug for 18 months or longer.

Does this mean the learned Judge is prepared to grant summary judgment to Merck on the thousands of cases involving folks who took Vioxx for less than 18 months? Apparently not -- rather, it looks like the Judge is trying to create a kind of pro-plaintiff momentum. What shameful behavior, if this is indeed what is going on.

Note that, for those who took Vioxx for more than 18 months, there is still a severe cause-in-fact problem. Just because the long term use of Vioxx increased the risk of heart attack by, say, 10%, does not establish to a probability that every (or any given) long term user's heart attack was in fact caused by Vioxx. To the contrary, depending on each plaintiff's risk factors, it could easily be the case that other causes were likely the culprit. Will a jury, or will the learned Higbee, understand this and so instruct/decide? Or will the judge and jury reason that Merck has the impossible task of "proving" that its drug did NOT cause a given heart attack?

"Alito's libertarian streak"

Ilya Somin discerns one. Ann Althouse comments.

Update 11/13: and now there's New York Times coverage and a Eugene Volokh WSJ column on the same theme.

Refusing vaccines

It's happening a lot, the Washington Post reports, thanks in substantial part to "what many pediatricians say are persistent myths that circulate on the Internet" -- myths that are sedulously stoked by innumerable law firm websites (commentary at the Manhattan Institute's Medical Progress Today website).

"Three strikes" license suspension

It keeps on surfacing as a proposal for disciplining both lawyers and doctors. Evan Schaeffer and commenters wonder (Nov. 8) whether the baseball metaphor has run amok.

Ribstein on hedge fund regulation

Larry Ribstein has a must-read post about the recent SEC mission-creep of regulating hedge funds, and the facile reasoning used by those who support the increased regulation.

Dodgeball Vioxx

�Dodgeball Vioxx" is a now-notorious document that both captured the popular imagination and played a prominent role in Mark Lanier�s opening statement in Ernst v. Merck. (E.g., AP/CNN, Jul. 20.) The document is a colorful set of pages that has been characterized as instructing sales representatives to �dodge� questions about Vioxx. Except that the document does no such thing. I saw the document for the first time on line at a web site promising "smoking gun" documents about the Vioxx case.

The �Dodgeball� game was part of a day-long training session for representatives on how to intelligently answer questions and concerns doctors might have. The session also had role-playing and other educational games, including one that had sales representatives throwing a koosh-ball to one another, and another that was a game show team competition similar to �Jeopardy!� Dodgeball was a card game that consisted of two-sided cards; some cards had questions that doctors might pose to pharmaceutical representatives; other cards said �Dodge� and allowed the representative to advance without answering a question.

Don't just take my word about what the document says: Read it for yourself.

One might question the pedagogical effectiveness of this exercise, which could easily be satirized in a �Dilbert� cartoon. But it�s hardly the sinister conspiracy that the plaintiffs� bar has sold to the media, which apparently took attorneys� representations at face value without actually trying to understand the underlying document. It says something about the litigation system's creative cherry-picking of documents that a camaraderie-building educational exercise can be characterized as one that �taught representatives to play �Dodgeball� when doctors voiced concerns.� (That quote comes from Alex Berenson, �For Merck, The Paper Trail Won�t Go Away,� New York Times, Aug. 20, without any qualification whatsoever.) If lawyers need to vet the most trivial activities to anticipate the possibility that they�ll be used against the company in future product liability litigation—and that reporters will unthinkingly parrot the claims of plaintiffs' attorneys—the costs of doing business will rise astronomically.

The spin of the plaintiffs' bar after their Humeston loss was that Humeston's attorney, Chris Seeger, didn't emphasize the "marketing" documents enough. But he did play up the "Dodgeball Vioxx"—the jury just saw through it.

That this document is what the plaintiffs' bar is claiming is the smoking gun just goes to show how flimsy the case against Vioxx is; if only the New York Times weren't participating in the attempted assassination. (Update: Wonkette falls for the hype.)

Martin v. Franklin Capital Corp.

28 U.S.C. � 1447(c) is a good example of a one-sided "loser pays" rule; a plaintiff can ask for attorneys' fees to compensate for an improper removal to federal court by a defendant, but a defendant has no such opportunity for fees for an improper remand motion. The Seventh Circuit makes such fee-shifting the default rule; other circuits award fees only if the removal was entirely meritless. Yesterday, the Supreme Court heard argument in Martin v. Franklin Capital Corp.; alas, mainstream press accounts are entirely lacking, apparently because I'm one of the few people who find the intricacies of federal jurisdiction questions worth reading about, but the Chicago Daily Law Bulletin reports (Nov. 9 subscription only) that the justices were skeptical of the plaintiffs' argument that they should be awarded fees as a matter of course for a remanded class action. Intermittent blogger Sam Heldman (who has jousted with Overlawyered) argued the case for petitioner plaintiffs. SCOTUSblog's James Darrow summarizes the briefs, though makes a mistake in discussing the Allapattah case.

"Alito's World"

Manhattan Institute Senior Fellow Heather Mac Donald emails to say: "I've never felt the slightest smidgen of loyalty to the Republican party, but I may have to reconsider. Anything's better than a Justice Tribe." Althouse (& more) and Eminent Domain don't like Tribe's column much either. Althouse in comments:

Does the position [of] law professor inspire any confidence whatsoever that you're going to hear a fair presentation of cases? Lawprofs have been so eager to tell us that judges aren't really judges that they've ended up convincing us that lawprofs aren't really lawprofs.

Balloting results

In Washington state, voters defeated I-330, a doctor-backed plan to limit medical malpractice awards and lawyers' fees, by about a 54-46 margin, while also drubbing I-336. a lawyer-backed alternative (Seattle P-I, Seattle Times). California voters trounced, by a 61-39 margin, Proposition 79, which would have regulated drug prices via freelance lawsuits among other means; they defeated Proposition 78, a drug-industry-backed alternative, by nearly as wide a margin. (L.A. Times, Sacramento Bee). In Virginia, former Richmond mayor and Democrat Tim Kaine, who had been criticized by the American Justice Partnership (OL Nov. 2), won the governorship anyway (Wash. Post). Texas voters easily passed an anti-gay-marriage constitutional amendment that Houston attorney Warren Cole, chairman of the State Bar of Texas' family law section, called "horribly drafted" and which would prohibit the recognition of any "legal status" that is "similar to marriage" (see yesterday's OL post) (Dallas Morning News)(cross-posted from Overlawyered)

With the consent of author/blogger David Nieporent (Jumping To Conclusions), we've reprinted as a column the excellent piece of his we linked to last week.

Alito on free speech

Ronald K.L. Collins and David L. Hudson Jr. at the First Amendment Center take a look at Judge Alito's record of free-speech rulings in a post entitled "Judge Alito fairly strong on free expression":

A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.

(via Blawg Review #31, hosted this week at IPTABlog). See also Ted's Oct. 31 post.

Lawprof blogs proliferate

Daniel Solove has an incomplete but useful census of the scores of weblogs out there by law professors, including many new ones. Among those worth checking out: ContractsProf Blog, with several contributors; Federal Civil Practice Bulletin, by Benjamin Spencer of U. Richmond; The Confrontation Blog by Richard Friedman of Michigan, a blog devoted to the Constitutional right to confront one's accusers; PropertyProf Blog by Benjamin Barros of Widener; and Tillers on Evidence by Peter Tillers of Cardozo, who cites a fascinating bit from Green Bag about how courts in Iceland handle the problem of expertise -- they invite the experts in as lay judges rather than as witnesses.

California Prop 79

On National Review Online, Paul Howard of the Manhattan Institute warns against it:

The proposition [among other provisions] also makes "profiteering" by companies illegal. Profiteering is defined as "an unconscionable price" or an "unreasonable profit," terms that are so vague and open-ended that they would expose manufacturers to constant (and very expensive) harassment from plaintiffs' lawyers.

For more, see OL Oct. 26, Nov. 2. More: Proposition 79 (description) has mostly trailed in polls this fall, according to RealClearPolitics, but the "Yes" vote was within two points of the "No" in one recent Stanford poll. Ben Zycher, Steve Bainbridge and Bookworm Room weigh in. And three cheers for the L.A. Times editorial board:

Unfortunately, Proposition 79 overreaches in granting private attorneys the right to sue companies charging "unconscionable" prices without having to produce a client who has been harmed. Californians last year rejected such "private attorney general" suits when they passed Proposition 64, and 79 would chisel away at that reform.

[updated and bumped 9:30 a.m. EST]

Washington state ballot battle

The National Law Journal, Seattle Times and Post-Intelligencer, and AP cover today's vote in the Evergreen State over med-mal initiatives. More: Sept. 12, OL Nov. 2, and see Sound Politics.

Stories correctly note that many more trials will need to be held before there's any discussion of settlement, and that plaintiffs' attorneys don't admit being discouraged by the Humeston loss. The next case, Irvin, will begin in federal court on the 28th, where plaintiffs will be limited to Daubert-quality expert testimony before Judge Fallon, but will involve a wrongful death claim (albeit one with a decedent who had extensive plaque in his arteries). The plaintiffs' attorney there will be Jere Beasley, whose aborted first attempt at a Vioxx trial was covered by Overlawyered Apr. 28. Judge Higbee will hold a hearing this week to decide which of four potential plaintiffs' cases will be tried next. (Thomas Ginsberg, "Merck can expect more highs, lows", Philadelphia Inquirer, Nov. 6; Barbara Martinez, "Merck Faces A Crossroads In Vioxx Cases", Wall Street Journal, Nov. 7 ($); "Merck's Vioxx Victory May Not Help Future Cases, Analysts Say", Bloomberg, Nov. 4; Kristen Hays, "1st federal trial up for Merck", AP, Nov. 6).

Merck's attorney in the Irvin case will be Phil Beck, who won a critical Baycol case against Mikal Watts (Nov. 2) in Corpus Christi (OL Mar. 19, 2003). The must-read Wall Street Journal recap of that trial is now online. (Monica Langley, "Bayer, Pressed to Settle a Flood Of Suits Over Drug, Fights Back", Wall Street Journal, May 4, 2004).

"Paint by Lawyer"

Wall Street Journal editorializes today (sub-only) about the retrial recently started in Providence, in which the zillionaire law firm of Motley Rice, which has developed close relations with the political class in the state of Rhode Island, is employing the state as plaintiff in its effort to crack open the coffers of companies that manufactured lead paint long ago. Contrary to the impression left by the Journal's editorial, sales of lead paint for interior use had largely ceased by the 1950s; paint intended for use on the exterior of buildings remained on the market until the 1970s. More on the suit: OL Nov. 1 and links from there.

New medical malpractice blog

ThisMakesMeSick.com, according to its About page, "answers renowned medical inventor Dr. Robert Fischell's wish to address the medical-liability crisis that's ruining our healthcare system" and is edited by David Gerlach. It has been launched by a group by the name of TED ("Technology, Entertainment, Design") which sponsors a conference series.

Brickman in Saturday's WSJ

The weekend edition of the Wall Street Journal (subscriber-only link) carried an op-ed by Prof. Lester Brickman of Cardozo, one of this site's advisers, on the developing asbestos/silicosis scandal. A sample:

Lawyers spent millions to sponsor mass screenings of upwards of 750,000 industrial and construction workers. Of the 850,000 asbestos claimants that have so far brought suit against over 8,400 different defendants, about 600,000 have been recruited by these mass screenings....

Sitting in Judge [Janis] Jack's courtroom during the cross examinations was an assistant U.S. Attorney from the Southern District of New York. He was there because a federal grand jury had been convened in mid 2004 to consider possible criminal charges arising from claims of exposure to silica and asbestos, and the use of witness-coaching techniques to implant false memories about product exposure....

The next shoe to drop may be in federal court in New York. If indictments are forthcoming -- and lawyers who sponsored the mass screenings and collected billions of dollars in fees are among those indicted -- the ensuing process could shine a floodlight on a fraudulent scheme so massive as to qualify non-malignant asbestos litigation for entry into the pantheon of such great American frauds as Enron, WorldCom, OPM, Cr�dit Mobilier and Teapot Dome.

There's a nice piece on the Legal Ethics Forum about Judge Alito's purported misfeasance in declining to recuse himself from a case involving the Vanguard mutual funds management company, when the Judge knowingly invested in Vanguard mutual funds.

The article correctly points out that hearing the case was, at most, a "whoops", a technical error of the kind that we all make every day. The conflict of interests was of the indirect sort (owning mutual funds versus owning the management company), and Vanguard was not sued for its own misfeasance anway, but was more a technical party to the case. In any case the appeal result was replicated by another panel.

The blog author is not tender toward Ms. Nina Totenberg: "I have a hard time believing Ms. Totenberg did not know the facts of the underlying case, which makes me wonder why she filed the report she filed." Some of us, who remember Totenberg's behavior when [now DC Circuit Chief Judge] Doug Ginsburg was appointed to the High Court, don't wonder at all.

Blogosphere on Merck Vioxx win

KevinMD dishes up a second helping of blogger reaction. (First helping was here.) Our extensive Vioxx coverage is conveniently gathered onto a single page here.

Lockyer vs. tuna fish

Last year California attorney general Bill Lockyer, of french-fry-suit fame, filed a Proposition 65 lawsuit demanding that tuna suppliers put warnings on their cans cautioning consumers that the product may contain trace residues of mercury. At the AEI Federalism Project's AG Watch, Will Wilson points out that the federal Food and Drug Administration fired off a letter to Lockyer taking him to task for misunderstanding federal labeling law, and also correcting his view of certain nutritional realities.

Profs. Bainbridge, Ribstein and (Gordon) Smith are all liveblogging it.

Another AG assails Oxycontin maker

This time it's Massachusetts Attorney General and gubernatorial candidate Tom Reilly who's threatening to sue Purdue Pharma (via WizBang). Earlier, West Virginia's Darrell McGraw hired private lawyers to bag a $10 million settlement from Purdue.

On "Bob Barr's Laws of the Universe"

I'll be talking about the Alito nomination on the syndicated radio program Bob Barr's Laws of the Universe this Sunday, about twenty minutes into the program (6:20 PM Eastern for those listening live).

Alito and family/medical leave, cont'd

Following up on her excellent earlier posts, Ann Althouse takes Nathan Newman across her knee and spanks him soundly for proposing that opponents demagogue Alito's opinion in Chittister, the FMLA constitutionality case (more from her). At NRO "Bench Memos", Edward Whelan says that the position Alito took on the scope of the FMLA was shared by the overwhelming majority of the appeals judges who considered the issue before it reached the Supreme Court in Hibbs, including such highly regarded Democratic appointees as Richard Arnold, Amalya Kearse and Jose Cabranes. And here's Prof. Suzanna Sherry in the Conglomerate comments section.

Alito: "revenge of the nerd"?

Dana Milbank in the Washington Post:

Alito, bespectacled, hair askew, suit rumpled and ill-fitting, walked into Sen. Tim Johnson's office this week to pay a courtesy call on the South Dakota Democrat. Sitting in an armchair in the senator's office, Alito forgot to unbutton his suit jacket, causing his tie to stick out and his jacket to bunch up. The judge's pant leg hiked up as he sat, revealing an untied shoelace.

Professor Bainbridge and his commenters object to the story. I'll put in a vote for disagreeing. I don't mind a little gossip in addition to the substance, and I found it humanizing to learn that Alito isn't as smooth as John Roberts.

In the Kremlinology of figuring out what senators are thinking, it's a relevant and interesting detail that Alito is so unkempt—especially since I heard more than one Washington person argue that some of my favorite candidates couldn't hope to be nominated or confirmed because they were too "awkward" to play the political game well.

So long as stories like this are a supplement to, rather than a substitute for, hard journalism, I don't mind. I'd rather have this than another "he said, she said" story misrepresenting Alito's opinion in Casey.

More on the Humeston verdict

See also yesterday's lengthy post.

1. The tactic of substituting crying for science in expert testimony didn't play well with this jury: "He was being like Liz Taylor," [juror Vickie Heintz said. "When he started crying, I'm like, 'And the Oscar goes to.' " (Thomas Ginsberg, "Jurors fault plaintiff", Philadelphia Inquirer, Nov. 4).

2. The Inquirer story does a better job of conveying a fact not mentioned by other press accounts: the one dissenting juror, Juan Garcia, is an immigrant resort worker for whom English is not his first language. The reporter singles out Garcia's "heavily accented" English; a juror diplomatically complimented Garcia for "having to try harder to understand." But it goes to show that the way for plaintiffs to win these cases is to have more jurors like Garcia and fewer jurors with real-life business experience and education.

3. The Ernst verdict of $253 million was on the front page of newspapers; the Humeston verdict was buried in the business section, something that can only heighten the "Oprah effect" in future cases. Jurors don't have any way of sending a message to plaintiffs as loud as the message they can send to defendants. It'll also be interesting to see if the Humeston jurors get the same financial opportunities as the Ernst jurors.

4. The plaintiffs' bar quickly agreed on a spin if there was a loss, and every news account has a soundbite repeating the false claim that Merck won by "attacking" Humeston rather than on the science—as if noting the other risk factors in Humeston's life (including the stress of learning shortly before his heart attack that postal investigators were accusing Humeston of committing fraud in his disability claim and videotaping him working on his car) isn't scientific.

5. The on-line version of the Wall Street Journal story has changed several times in the last 24 hours, but they have another juror quote:

Juror Marie Kerr, a 51-year-old administrative assistant, said she and other jurors read through the emails while deliberating and felt many of the inflammatory lines were taken out of context.

"We read the emails completely, and not just the part that said 'bastards,' " she said. Ms. Kerr also said she wasn't moved by a Merck document titled "Dodgeball" that [attorney Christopher] Seeger portrayed as a way to teach sales representatives how to avoid questions about heart attacks. "We've all seen games like dodgeball at our work," she said.

There has been much ado about the "Dodgeball Vioxx" document, with mainstream media sources breathlessly repeating plaintiffs' bar claims that it was a "smoking gun"; I finally saw it for the first time a month ago, and was shocked at how innocuous it was—and how irresponsible the press was in failing to report what the document actually said, rather than just the characterizations of a Christopher Seeger or Mark Lanier. More on this document next week.

6. Some reports have analysts questioning why plaintiffs' attorneys are bringing such a weak case first. The answer, according to the Wall Street Journal, is that they don't completely have a choice. In New Jersey, Merck and a plaintiffs' steering committee each pick five cases that they want to try next; each can then strike three of the other party's choices; the case is selected from the remaining four.

7. Merck still loses for winning: they're out the millions of dollars they spent to try the case, plus the person-months of executive time spent preparing for and testifying in depositions or trial.

8. Humeston, who left Idaho for two months to try the case in Atlantic City, told AP that he did win $60 playing the local slot machines. I can't respond, because the multitude of possible punchlines paralyzes me.

A lefty cries "BS" re Alito

Critics "tend to refer to Alito as straining to interpret things to his liking; contrariwise, I find most of the strain evident in the hasty criticisms of his work circulating around the blogosphere." A self-described lefty isn't impressed with the attacks on Alito, and performs a lengthy refutation.

We've all seen this sort of Borking done by the left, but David Nieporent does a good job of making the abstract concept concrete.

Daubert and FRE 702:

[Cross-posted at the Volokh Conspiracy]

I'm working on a paper on the admissibility of expert testimony, and I've noticed a disturbing trend: courts that want to admit questionable expert testimony frequently cite permissive-sounding language from the 1993 Supreme Court Daubert opinion. Daubert was indeed a rather ambiguous opinion, and could indeed provide comfort to judges who want to shirk their "gatekeeper" role.

The problem, however, is that Daubert (and for that matter, its stricter, but still occasionally ambiguous progeny, Joiner and Kumho Tire) is not the governing rule for the admissibility of expert testimony. In 2000, amended Federal Rule of Evidence went into effect. The amended rule was intended to codify the "Daubert trilogy", but wound up containing some stricter language than the Daubert trilogy itself has: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Thus, for example, while Kumho Tire suggested that some experts can simply rely on their experience to justify their conclusions, amended Rule 702 requires that the expert be able to DEMONSTRATE that he applied his experience reliably to the facts of the case. This may be impossible in many cases, which is very problematic, but it's equally problematic for a partisan, paid, experience-based expert to be able to testify simply based on his say-so, with no real hope of effective cross-examination. (How would you cross-examine the Kumho Tire Court's example, the perfume-tester, who claims to be able to distinguish among hundreds of perfumes via one sniff? Even if his sniffing is generally reliable, how do you know whether he's correct in this particular case, or is either just wrong or shading his testimony? And how is it helpful to the jury to have two equally qualified perfume-testers, one paid for by each side, both swearing based on nothing more than their say-so that the perfume is, respectively, Chanel or Gorgio?) (I have an idea how to rescue experience-based testimony from Rule 702 oblivion, but I'll save that for another time.)

To take another example, way too many courts have relied on language from the trilogy in admitting phony "differential diagnosis" testimony on causation that in fact constitutes nothing more than "post hoc ergo propter hoc" reasoning. Allowing an expert to testify that exposure to substance X caused injury Y simply because the expert can't identify any other cause, and in the absence of any proof that substance X CAN cause injury Y, is not exactly reliable principles and methods being applied reliably to the facts of the case. It's more like, in many instances, allowing paid hired guns to speculate wildly to a conclusion mandated not by science but by the necessity of supporting a plaintiff's causation theory.

Early comments on Humeston defense verdict

One cannot draw too many conclusions from this case. As plaintiffs go, Frederick Humeston was a poor one. He had numerous health problems; he took Vioxx only intermittently for two months; and even if one assumes causation, his injury was relatively minor: Humeston is back at work and his supposed life-limitations could equally be ascribed to a bad knee as to his heart problems. (Studies show that juries—and neutral experts!—are more likely to find fault with a defendant when presented with more serious injuries. Sympathy is a powerful human emotion.) In addition, the fact that he was already in a dispute with his employer over a disability claim hurt Humeston's credibility, especially when he denied any stress from learning shortly before his heart attack that a PI was investigating whether he was faking his injury.

Still, one can draw some conclusions: a relatively educated jury will consider issues of causation if not overwhelmed by sympathy. Overstated expert testimony only goes so far without that sympathy. A jury with relevant employment experience is capable of seeing through the attempts by plaintiffs' attorneys to take e-mails out of context:

Neither [juror Nellie] Stetzer nor [juror Vickie] Heintz were swayed by the e-mails and marketing materials the plaintiffs provided in an attempt to prove Merck knew about Vioxx's risks but concealed them to make money.

"A lot of us were business people. We understood they needed to do sales training," Stetzer said. "I don't think Merck knew the dangers. I truly believe they thought the drug was safe." (AP)

[Juror Judy] Lamando said she wasn't moved by the inflammatory emails from inside the company or Merck's aggressive marketing of the drug. "We're all in business and that's what we do," she said. [...]

Ms. Heintz, the juror, said she felt Mr. Seeger "cherry picked" a few select emails to try and indict the company with them -- echoing the same phrase that Ms. Sullivan of Merck had used repeatedly in her closing statement Tuesday.

Juror Patricia Harley, 44, said the internal emails weren't a problem for Merck. "If someone peeked through all my emails, forget about it," she said. As to Merck's marketing: "That's business. Merck is in business to make money. You can't fault them for making money." [...]

Ms. Heintz also said she wasn't bothered by Merck's aggressive marketing of Vioxx or documents that showed the company calculating the loss in profits if the warning label were changed to reflect increased of heart attack. "Medicine is business," she said. "If I had a business I would calculate what the loss of one of my big products would mean� This about making money. Merck doesn't do this because they are flower people." (WSJ)

The Ernst case in Texas, in contrast, had a relatively uneducated and inexperienced jury; featured a grieving widow; and had the unusual circumstance of Merck being tricked into vouching for the credibility of the plaintiff's surprise expert witness in its opening statement, which did much to deflate Merck's legitimate causation defense.

Of course, the Humeston jury, like the Ernst jury, was also capable of being influenced by irrelevant factors:

Heintz also praised Merck lawyer Diane Sullivan for making eye-contact with the jurors and said Humeston's attorneys were too abrasive. "I thought that was a big turnoff," she said.

On such game-show qualities are billions of dollars of shareholder value created or destroyed. (Theresa Agovino, AP, Nov. 3; Heather Won Tesoriero et al., "Merck Scores Major Victory In the Second Vioxx Trial", Wall $treet Journal, Nov. 3).

It's also too soon to tell how the trial bar will react to this verdict. (See Evan Schaeffer for one early reaction.) There will be other New Jersey cases before September 2006, and those additional datapoints will help plaintiffs' attorneys decide whether to file in New Jersey, where there appears to be a judge favorably inclined to them, or seek to use other state courts. And certainly, plaintiffs will try harder in the future to find a more ignorant jury. And don't expect ATLA to issue a press release quoting jurors from this case.

Update: More discussion at our November 4 post.

Merck wins one!

Today, Merck scored a huge win in Atlantic City when a state court jury ruled for it on all counts in a suit over whether Vioxx had caused a postal worker's heart attack. Reports The Wall Street Journal:

The jury, which heard seven weeks of testimony, had to consider two charges: failure to warn and consumer fraud. In deciding against Mr. Humeston on the first question, it concluded that Merck either did not know that Vioxx carried cardiovascular risks at the time that Mr. Humeston was prescribed it in 2001, or that the company adequately warned physicians about those risks. It further determined that Vioxx was not a substantial factor in causing the heart attack.

More sure to come. For our previous writings on this trial, the massive Texas award against Merck earlier this summer, and all things Vioxx, see here. Note: Ted, you beat me to the punch!

Merck wins Humeston case

We'll have more details after press coverage becomes available.

Wal-Mart and health insurance

A recent New York Times article quoted union-organizers threatening Wal-Mart with litigation over alleged discriminatory intent as demonstrated by a memo written regarding strategies over reducing the corporation's health-insurance costs. Ray Lehmann has an excellent analysis of what's really happening.

Lyle Roberts, of 10b-5 Daily blog fame, has published an opinion piece in the National Law Journal on the SEC's relatively new role in arranging compensation for investors. An excerpt:

In the heady legislative rush surrounding the passage of Sarbanes-Oxley, the prospect of having both the SEC and private plaintiffs' attorneys work to compensate injured investors probably seemed like a great idea. Multiple investigations and lawsuits over the same conduct, however, waste scarce resources that otherwise could go to investor compensation.

Two areas are particularly problematic: corporate defense costs and plaintiffs' attorney fees. The SEC has no power to stop a private lawsuit from proceeding while it conducts its own civil action. Accordingly, a corporation must battle on two fronts, with all of the attendant defense costs. Meanwhile, the private plaintiffs' attorneys may be able to free-ride on the SEC's efforts and still get paid high contingency fees.

ASARCO bankruptcy

Another recent asbestos bankruptcy to add to the list: ASARCO, one of the nation's oldest mining concerns (the old American Smelting & Refining), which is primarily a copper-mining company but has operated in asbestos as well. A union strike didn't help matters, but environmental-cleanup and asbestos exposures were a crucial factor; Merrill Lynch has estimated the company's liabilities at $300 million. That sum could easily be an underestimate, since the company is facing about 95,000 asbestos-related personal-injury claims, per the Seattle Post-Intelligencer.

Alito: U.S. v. Rybar dissent

Norm Ornstein in Roll Call and Robert Gordon in Slate attack Alito over his dissent in U.S. v. Rybar, a federal statute barring what Congress defined as "machine guns." But Ornstein (and Gordon, to a lesser extent) misrepresent Alito's decision. Alito simply applied the Supreme Court precedent in Lopez—a decision striking down a subsection of the same statute.

The statutory provision challenged in this case, the portion of 18 U.S.C. � 922(o) that generally prohibits the purely intrastate possession of a machine gun, is the closest extant relative of the statute struck down in Lopez, 18 U.S.C. � 922(q)(1)(A), which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. Compare, e.g., 18 U.S.C. � 922(d). And in passing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. ...

Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. [...] Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. � 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. ...

Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere--say, on one's own property? [Footnotes and cites omitted.]

Gordon complains that the statute was aimed at "trafficking," and was thus permissible, but ignores Alito's reasoning that the statute went beyond mere trafficking to include a purely private and intrastrate conversion of a "legal" weapon into an "illegal" weapon. Reasonable minds can differ on the correct answer to this question; at the time of Alito's dissent, Supreme Court jurisprudence on the scope of the Commerce Clause was considerably confused, and there were certainly pre-Lopez precedents that supported the constitutionality of � 922(o). But Alito's opinion in Rybar shows no indication that he would strip Congress of the ability to enact New Deal-style legislation.

Dave Kopel has more.

There's an interesting story in the San Antonio Express-News about Mikal Watts (Apr. 11) and his suits against Ford over rollovers, including the notable Crystal City case (OL Mar. 7 and links therein), a $31 million verdict where Ford was blamed for injuries caused by an unbelted drunk driver's intentionally reckless driving. Most intriguing is a settlement letter Watts apparently sent in a different case demanding $60 million:

"I believe it is wise for the individuals ... who will evaluate this case to remember, 'Toto, we aren't in Kansas anymore.' Politely put, South Texas venue by itself makes this a very dangerous lawsuit. ...

"[The 13th Court of Appeals in Corpus Christi] is comprised of six justices, all of whom are good Democrats. The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm's heavy support, and is a man who believes in the sanctity of jury verdicts. ..."

(John MacCormack, "Lawyer's war on Ford drawing notice", Oct. 17). Watts also recently won a $30.4 million verdict against Ford for an unbelted 16-year-old, Jessica Garcia, who was killed when she was ejected from an F-150 after it was struck by another driver at highway speeds. (Jeff Plungis, "Ford ordered to pay $30.4 million", Detroit News, Oct. 4; Watts firm press release). Ford confidentially settled a third case last month. (Britney Booth, "Ford settles suit", The Monitor, Oct. 6).

Alito and the FMLA

Ann Althouse here and here wishes to set straight Angry Bear, Daily Kos, Sen. Barbara Boxer, and lawprof Pam Karlan, all of whom she says have misrepresented Judge Alito's ruling in Chittister v. Department of Community and Economic Development. In Chittister, Alito found that sovereign immunity protects state governments from damage suits (but not from suits for forward-looking relief) under the Family and Medical Leave Act, a position the Supreme Court ultimately declined to adopt in a later case (though Justice Anthony Kennedy, in dissent, adopted Alito's position). Relevant snippet: "Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong."

California courts ruled three years ago that illegal workers are entitled to sue for back pay if they have been paid less than the minimum wage, and more recently ruled (as have courts in other states) that they are entitled to collect workers' comp benefits if injured on the job. Is the effect of such rulings, intended or otherwise, to reduce illegals' role in the U.S. economy by making them more expensive for employers to hire? "Robert Musil" wonders here and here.

New Jersey foul balls

According to columnist Bob Ingle of the Courier-Post in South Jersey, help may be on the way for the assumption-of-risk principle in the Garden State:

The state Supreme Court ruled people can sue for injuries caused by foul balls at baseball games. Assemblyman Patrick Diegnan Jr., D-South Plainfield, is introducing a bill based on a 1993 Colorado law to stop that stupidity.

It stipulates that baseball game spectators are presumed to have knowledge that there are inherent risks, like getting hit by foul balls.

Owners of stadiums where professional baseball is played would be required to post a notice telling spectators they're assuming the risk. That's fair. Only trial lawyers could object.

Our earlier coverage of the foul-ball ruling is here and here.

Sanchez vs. Alito-bashers

Round II, at Reason "Hit and Run", discussing (inter alia) the judge's rulings on asylum determinations and on the Marriott discrimination case.

Alito morning roundup

The Washington Post has a very well-done profile of the nominee that should be read in full; a few snippets:

The real Sam Alito, according to the lawyers and other friends who know him well, is more like the second coming of Chief Justice John G. Roberts Jr., but with a longer paper trail [than like Justice Antonin Scalia]....They don't know anyone who isn't a journalist who actually calls him "Scalito."

"He's John Roberts, but with a background in criminal law," said Michael Carvin, a colleague at the Justice Department. ... Douglas W. Kmiec, a professor of constitutional law at Pepperdine who worked with Alito at Justice, points out that unlike Scalia, Alito is often interested in trying to determine the legislative intent of a statute by studying its history.

Alito's strong record on business and contract cases, noted earlier here and here and here, draws attention in a W$J news-side piece. Case Western lawprof Jonathan Adler, in a Journal op-ed, argues that Alito "isn't 'pro-life' or 'pro-choice' but 'pro-law.'" And Joseph De Feo at Capital Research Center is out with a report taking a critical look at three groups likely to fight the nomination, Alliance for Justice, the Leadership Conference on Civil Rights, and People For the American Way.

Alito and business

Daniel Fisher in Forbes has an excellent piece that quotes yours truly extensively; Molly Selvin also does so somewhat less precisely in today's LA Times.

When smearing Court nominees...

...remember not to forward documents created in Microsoft Word, because they carry hidden annotations as to who created them, thus making it hard to carry out your little "not for attribution" maneuvers.

Joan Kennedy Taylor, RIP

A cherished friend, wise adviser and writer/activist of formidable gifts, Joan Kennedy Taylor died on Sunday at age 78 after a long illness. Joan was a key figure in the early history of the Manhattan Institute; her supremely thoughtful work helping Charles Murray to shape and present the argument of Losing Ground, the book that demonstrated the failure of the War on Poverty and revolutionized the welfare debate, rightly became a legend in the policy world. Much of Joan's own writing sought to advance the themes with which she was above all else associated, namely those of an individualist feminism grounded in Enlightenment values and committed to liberty and specifically to free expression. Her unique book for the Cato Institute and NYU Press, What to Do When You Don't Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, was discussed on Overlawyered Nov. 12 and Nov. 13-14, 1999 and Feb. 19-21, 2000.

Joan made an enormous impression on me when I first met her in 1976, having already been a fan of her radio commentaries (she was one of the contributors to CBS radio's rotating "Spectrum" lineup). When I landed in New York City ten years later it was inevitable that I would seek out her renewed acquaintance. Only much later did I learn about the fascinating life she had led, born to a family of much cultivation (her father was the prominent music critic and composer Deems Taylor), and later close for many years to Ayn Rand. Joan's preferred methods of persuasion, however, could hardly have stood in more contrast from those of Rand, as may be evident from this profile:

While her views put her at odds with many "mainstream" feminists, Taylor says she prefers to work to build alliances rather than accentuate differences. "New Deal feminists may put more faith in government solutions than would libertarians or classical liberals," she said in an online discussion (May 7, 1999). "But I think it makes sense to keep the bridges to what is good about the liberal tradition, so that one can call upon our common heritage in the Enlightenment and the American constitutional tradition of individual rights."

Always reluctant to turn political disagreements into occasions for acrimony and denunciation, Joan raised to a virtual art the search for common ground with others of good will. Other comments: Jesse Walker, Cathy Young, Ed Hudgins (and more) and Wendy McElroy (cross-posted from Overlawyered).

P.S. There is now a tribute blog whose first post offers a more detailed account of her life.

Spitzer: no smokes via UPS

There's no good reason why enterprises that carry parcels should feel legally obliged to check, opening the parcels if necessary, whether the sender and recipient have paid all the taxes due on their transaction. That's one reason why, if you order cigarettes by phone or online from an Indian tribal supplier, the U.S. Postal Service will be happy to deliver the cartons to your door. (Another reason: it remains a matter of legal dispute whether states can tax the tribes' sales in the first place.) Nonetheless, New York Attorney General Eliot Spitzer has just bullied UPS, the world's largest package carrier, into agreeing to cease the delivery of cigarettes to individuals nationwide. (N.B. -- not just in New York, but anywhere in the country -- including the 49 states whose citizens never got a chance to vote on Spitzer's elevation to his post). For now, at least, Spitzer can't reach the U.S. Postal Service itself with his legal threats, so that avenue of distribution remains open.

Nannyism is probably only a secondary motive for Spitzer in this case; he has long taken a forward role in enforcing the tobacco cartel, organized in 1998 with the assistance of state attorneys general, against attempts by independent makers and sellers of cigarettes to undercut the cartel and thus interfere with the states' lucrative flow of tax and settlement money. And it's hard to see why the principles at stake, once established, will not be carried further. For example, states would love to tax interstate sales of goods on eBay, many of which are shipped by UPS. What happens when a Spitzer successor demands that UPS cease to deliver shipments of goods bought on eBay unless the sender proffers evidence that sales tax has been paid? Will the delivery service fold up and go quietly then, too?

Blawg Review #30

Lots of best-of posts from all over the legal blogosphere, hosted this time by Denise Howell.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.