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December 2005 Archives

Is Prilosec the next Vioxx?

That's the question asked by Larry Ribstein, back from an Asian trip where heartburn was a first-hand worry. Of course, it's too early to even say that Vioxx is the next Vioxx, since we don't know whether Vioxx will follow the fen-phen (giant verdicts followed by giant verdicts and giant settlement and endless litigation) or Propulsid (giant well-publicized verdict reversed followed by settlement for a pittance) route. But Professor Ribstein has some good observations about the problems of letting lawyers dictate which drugs are in the market.

Steven Hantler profile

Excellent profile of the crusading DaimlerChrysler attorney in The American Lawyer. Notable incident:

In 2000, while the company was fighting a Texas state court claim that it had sold a Dodge with a faulty steering mechanism, an anonymous tipster mailed documents to the carmaker showing that the plaintiffs team had tampered with the key piece of evidence. The judge concluded that someone on the plaintiffs team had purposely broken the steering column. The judge punished the plaintiffs lawyers with a sanction of $865,000 and referred his findings to the state bar. One lawyer, Robert Kugle, fled to Mexico and was disbarred in absentia. At the direction of Hantler and Kenneth Gluckman, who oversees the company's product liability defense, the company sued the trio in 2003 for fraud, a suit that remains pending, as does a bar association grievance change that DaimlerChrysler simultaneously filed against Kugle's two colleagues. "We will be greatly disappointed if the bar association doesn't suspend these lawyers from the practice of law," says Hantler.

Katrina lawsuits roundup

The New Orleans Times-Picayune has comprehensive coverage, with excellent details for a lay newspaper. Most entertaining are the attempts to sue the Army Corps of Engineers—since the 1927 statute that authorized the Corps to build levees specifically exempted them from liability. In another suit, Robert Harvey, a trial lawyer who is the former president of the New Orleans Levee Board, has sued the Levee Board along with several insurance companies, to recover for flood damage to his home.

Posting lull

Posting from me, at least, will be scanty or nonexistent until after the New Year. Best wishes to all our readers for 2006.

Herewith a link to a well-penned homage to U.S. Judge Janis Jack for exposing what the Wall St. Journal says may turn out to be "one of the biggest legal scams in U.S. history," the silicosis torts scandal. Why isn't this being played up all across the country? And why, in an era of passive and sometimes lawless judges, are Judge Jack's praises not sung far and wide?

A California jury has just awarded $172 million to thousands of California employees at Wal-Mart Stores Inc. who claimed they were illegally denied lunch breaks. The retailer was ordered to pay $57 million in general damages and $115 million in punitive damages to 116,000 current and former employees for violating a 2001 state law that requires employers to give 30-minute, unpaid lunch breaks to employees who work at least six hours.

The lawsuit is one of about 40 tort suits nationwide alleging various workplace violations by Wal-Mart, and the first to go to trial. Wal-Mart settled a similar lawsuit in Colorado for $50 million.

In the suit, Wal-Mart claimed that workers did not demand penalty wages on a timely basis (Under the law, the company must pay workers a full hour's wages for every missed lunch.), and that in 2003 most workers agreed to waive their meal periods as the law allows. Wal-Mart attorney Neal Manne claimed the law did not allow for private lawsuits. He added that Wal-Mart did not believe the lunch law allowed for punitive damages.

Wal-Mart has recently argued for a substantial increase in minimum wages (thus making it very difficult for competitors to underprice it). It is now on the receiving end of this cartellization, as state labor laws are making it difficult to wring out the efficiencies that made the company famous and prosperous. Thus does heightened minimum wage legislation disguise itself as tort law.

"I will be coming after you"

John Whitehead, chairman of the Lower Manhattan Development Corp. and former chairman of Goldman Sachs, writes a WSJ op-ed criticizing Eliot Spitzer. And then his phone rings....

Anesthesiologists' success

The anesthesia specialty has enjoyed great success in recent decades in reducing its incidence of medically induced injury, which has led to some talk about how supposedly other branches of medicine should just go and do likewise instead of griping about the rate at which they are sued. But as Medical Economics (via KevinMD) finds, it's not that simple.

Incidentally, because anesthesiologists are now more vigilant than ever not to court an overdose risk by giving patients any more than the minimum they need, there is apparently a rising incidence of the phenomenon of "anesthesia awareness", in which underdosed patients are actually aware of the surgery in progress and perhaps end up undergoing psychological trauma as a result. So what happens next? You guessed it.

More: anesthesiologist Clark Venable, at Waking Up Costs, says I'm mistaken on two counts in the paragraph just ended. First, he says, "Overdose risk is not and was never a cause of patient morbidity and mortality in my field." (In the Law.com clip linked above, a former president of the anesthesiology society refers to "the need to give the patient only as much anesthesia as his or her body can tolerate". Possibly I was too hasty in resorting to the word "overdose" to capture this aspect of the safety picture, but a search on "anesthesia overdose malpractice" confirms that I had plenty of company in thinking that anesthesia overdose has sometimes been a cause of injury to surgical patients. Venable also disputes that the underlying rate of "anesthesia awareness" in surgery is in fact on the rise, saying the real explanation may be that more attention is being paid to a problem already present. And: in another post, Dr. Venable clarifies things further, and writes: "The point I tried to make (though not well) was that overdose is not something we presently worry about and does not explain the apparent increase in awareness under anesthesia."

Those 4,202 Mississippi silicosis claims

A judge having dismissed them, the other shoe now drops: defendants are seeking $330,000 in sanctions from the law firm that brought them, Waco, Texas-based Campbell Cherry.

Public Backs Alito

In other Alito nomination news, a new ABC News/Washington Post poll finds that 54 percent of the American public thinks Judge Alito should be confirmed to the high bench, up from 49 percent in November. 55 percent of Americans supported now-Chief Justice John Roberts on the eve of his confirmation hearings.

William F. Buckley famously remarked that he'd rather be governed by individuals selected at random in the Boston phone book than by Harvard's faculty. While being a Supreme Court justice obviously requires a very high level of intellectual rigor and professional competence, it is quite interesting that the public's view of this nomination is so different from, say, the Yale Law School's Alito Project. Ironic, perhaps, but not surprising.

As Wendy Long notes over on NRO, Yale Law School today, without explanation, changed the text of its announcement and write-up of the report issued Monday by the school's so-called Alito Project (for more, see my tongue-in-cheek "brickbat" on the report here). Today, the Yale Law School homepage links to the report with the following header: "Informal Faculty-Student Group Reviews Opinions of Judge Alito"; on Monday, the same page linked in with a specific reference to "The Alito Project at Yale Law School."

Today's abridged and backdated announcement on the Yale web page reads:

December 19, 2005
Informal Faculty-Student Group Reviews Opinions of Judge Alito

New Haven, CT -- Over the last several weeks, an informal group of Yale Law School students and faculty calling themselves "The Alito Project," reviewed all 415 judicial opinions that Judge Samuel Alito wrote while serving as a Circuit Judge. The report was delivered to all one hundred Senators on Monday, just as many of them are preparing for Judge Alito's nomination hearings scheduled to start on January 9, 2006.

"Our goal was to help Senators and citizens make an informed decision about this nominee," said Professor Owen Fiss, one of the project's participants.

Yale Law School's Office of Public Affairs has received numerous requests for this report, which is not an official publication of the Yale Law School. The group that prepared the report has given an electronic version of the report to the Yale Law School library, where --like many other writings of Yale Law faculty and students, which express a broad range of opinions on a broad range of issues -- the report may be accessed via this link.

(emphasis added)

Wendy's NRO post linked to a cached version of the earlier Monday release on Yale's website, which has since been scrubbed. I had earlier copied the text of the original version, which I'll reproduce here, for posterity's sake:

A judge struck down Minnesota's new 75-cent-a-pack charge on cigarettes Tuesday. [WSJ link requires subscription]. In another after-shock following the shameful interstate compact between the states' AG's and the tobacco companies, the Minnesota state judge recognized that the state's new "health impact fee" was in reality a new tax meant to change the distribution of booty as between Big Brother and Big Tobacco. Greed has its limits!

British smokers...

...must face an offsetting deduction from awards they may win over asbestos exposure, at least if they smoked after 1971, to reflect the contribution of their own actions to their ill health, according to a new ruling from the UK's High Court.

AutoNation paperwork class action

As part of its Lawsuit Abuse Victims Project (see Sept. 12) the pro-litigation-reform American Justice Partnership has posted a 90-second video in which Jon Ferrando, general counsel of AutoNation, a large Florida chain of car dealerships, tells of his company's settlement of a class action charging it with omission of some required paperwork at closings. The actual customers, according to Ferrando, were neither injured by the omissions nor desirous of the coupon relief proffered them as part of the settlement; the plaintiff's lawyers, however, got more than $1 million in fees as part of the deal.

Tobacco Could Save Us All
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It turns out, according to the journal Infection and Immunity, that Anthrax vaccine can be grown in tobacco. One acre of tobacco could produce 360 million doses of vaccine, saving the whole nation from bioterrorism.


In response to the brickbat thrown by my friend Jim Copland against my alma mater, I wish to point out that more than a few Yale Law School alums have been organizing an ad campaign in support of Judge Alito. Those Yale law alums interested in joining the campaign (yes, Jim included!) should contact George Conway, Class of 1987 at GTConway@wlrk.com.

An opportunity for Spitzer

New York Attorney General/Aspiring Governor Eliot Spitzer has been infamous for filing lawsuits on subjects normally under the jurisdiction of the SEC or FDA or other federal regulatory agencies through aggressive prosecutions under aggressive and overreaching constructions of amorphous laws. Now, he has the chance to enforce an actual New York state law on a local matter squarely in his jurisdiction. Local 100's illegal transit strike in New York City not only violates the Taylor Law and a court injunction, but will also cost New York businesses over half a billion dollars a day and taxpayers another $20 million a day, and that's before one considers the environmental damage from the traffic jams, the health costs from those who get sick from exposure to the winter elements, and the ruined vacations of tourists. Will Spitzer seek the full measure of damages on behalf of New York citizenry, and criminal penalties for the criminal contempt of the union leadership, or are aggressive measures not called for when Democratic constitutencies clearly violate specific laws and judicial orders? One possible sign: the New York Times' story on potential legal options mentions only the abstract New York attorney general's office, rather than putting the responsibility on any individual in that office with both authority and political ambitions.

Update: On December 21, Spitzer issued a press release taking the right position. Don't feel sorry for the unions; as Walter notes on Overlawyered, amnesty from the fines is usually negotiated as part of any final deal with the union, which is why anything short of imprisonment will have no coercive effect.

Save America: Close Yale Law School

When I clerked for Hon. Ralph K. Winter, a judge on the Second Circuit United States Court of Appeals and an adjunct professor at the Yale Law School, he liked to joke that Chief Justice Rehnquist had on his office desk a bumper sticker with the provocative slogan, "Save America: Close Yale Law School." I always parked the story somewhere between the judge's captivating tales of when he and Robert Bork were the faculty's conservative caucus and his insightful observation that the legal academy's focus on "novelty" in publications, combined with its reliance on student-managed journals, led to scholarship that was far too often the equivalent of a science department hiring members of the flat earth society.

But recently, I've come to wonder whether that bumper sticker, so antagonistic to my alma mater, might actually be on to something. First came the prominent Adam Liptak article in The New York Times detailing how Yale Law students and professors were rallying to defeat the nomination of my fellow alumnus (see our editor's initial post here and follow-up here).

Now, a group calling itself the "Alito Project at Yale Law School" has released a 60-page report, The Alito Opinions, that purports to "help readers make an informed decision about appointing Judge Alito to the nation's highest court" through a "comprehensive review of Judge Alito's published opinions from his more than fifteen years on the Federal bench." The report concludes that Judge Alito in general has deferred to agencies and institutions over individual litigants; that he has displayed a "narrow view of civil rights, prisoners' rights, and workers' rights but a broad view of religious freedoms"; that he is permissive of legislative limitations on abortion; and that he is "willing to limit congressional power." The report's release is featured prominently on the law school's web page.

The problem with the Alito Project's report is not merely that it reads more like a one-sided recitation of the facts in a legal brief, rather than the neutral assessment it tries to suggest it is -- and it does -- but that it actually gets the facts wrong. I haven't read all Judge Alito's opinions -- and haven't the time or inclination to do so -- but the very first section of the report makes such a fundamentally flawed legal analysis in describing one of his most-discussed opinions that the report's entire credibility should be called into question. The report says the following:

Leaving "Law Vegas"

Peter Roff writes that the confirmation of Justice Alito could help improve both commercial and tort law: "In 15 years as an appeals judge, he has routinely found for the enforceability of contracts as written". Cites the Manhattan Institute's Trial Lawyers Inc. work.

Keeping records of online job applications

Per the National Law Journal: Employers are upset at new regulations from Washington which will require federal contractors to retain and classify records for a large class of job applicants who come in over the web. The rules will be burdensome in themselves, some management lawyers warn, and also will greatly simplify the work of plaintiff's class action lawyers.

It was probably inevitable: given that trial lawyers have tidily disposed of most state litigation curbs by getting state courts to declare them in violation of their state constitutions, the question arises of how they're going to dispose of nationwide litigation curbs enacted by Congress, which are not subject to state constitutional attack. The need will be for some way of arguing that they violate the federal constitution, although the jurisprudence of the U.S. Supreme Court has not been particularly friendly to such lines of argument for many years. And now, sure enough, here's an article in the Yale Law Journal by Vanderbilt lawprof John C.P. Goldberg (PDF) proposing that federal courts proclaim for themselves a broad power to strike down congressionally enacted liability curbs. At the Yale Law Journal quasi-blog, The Pocket Part, author and Common Good founder Philip K. Howard debates the idea with John Vail of the ATLA-allied Center for Constitutional Litigation.

Expert medical witnesses

Arizona Medicine, published by the medical association of that state, recently ran a special issue on the topic (PDF) edited by Dr. Jane Orient (via CCEMT).

Inuit global warming suit

Kip Esquire isn't a fan (see Dec. 19, 2004).

The Jackson Clarion-Ledger and Associated Press report on Mississippi judge James T. Kitchens's decision to dismiss more than 4,000 cases brought by the Texas law firm of Campbell Cherry, leaving 79 cases still pending in his Noxubee County circuit court. "All 4,202 claims dismissed were screened by Pascagoula's N&M Inc., which since 1996 has taken in more than $25 million for doing a majority of silicosis and asbestosis screenings across the United States," the Jackson paper reports. More than 20,000 lawsuits alleging silicosis, an occupational disease once seen as rare, were filed in Mississippi in recent years, and many more are expected to be dismissed in light of federal judge Janis Graham Jack's recent finding in Corpus Christi of indicia of massive fraud in silicosis/asbestosis claims.

AEI working paper on the Vioxx litigation

AEI has released my working paper on the Vioxx litigation in two parts: Part I and Part II.

Trent Lott is suing State Farm in Federal District Court in Mississippi for his Katrina losses. (Biloxi Sun Herald). He is arguing that wind was the proximate cause of the storm surge and invokes Mississippi�s valued policy provision which may suggest that the insurer must pay even if a contractually excluded event (storm surge) destroyed his house.

...and Spitzer on AIG's Starr Foundation

Tom Kirkendall on the New York AG's charges that Hank Greenberg and other American International Group execs engaged in improper transactions 35 years ago at the expense of the foundation long associated with AIG:

Well now, those are serious charges. But a couple of small details were left out of Spitzer's typically boisterous media release on the salacious new charges. First, the Internal Revenue Service, a New York state court and the New York attorney general's office had previously approved the transactions that Spitzer now characterizes as improper "self-dealing."...

In total, Spitzer contends that if the lost funds had remained invested invested in AIG shares that they would now be worth more than $6 billion. ...[a]little detail that Spitzer failed to mention is that the $6 billion in value to which Spitzer refers is largely attributable to Greenberg's 35 year management of AIG, which Spitzer unceremoniously ended earlier this year.

Not only did "the Internal Revenue Service, a New York court and the New York attorney general's office all [approve] the Starr estate's transactions to which Spitzer now complains," says Kirkendall, but

Greenberg and the other directors point out that Mr. Starr himself set up and approved the transactions before his death, and that the transactions allowed the Starr Foundation to amass assets of more than $3 billion today, not including about $2 billion in donations disbursed over the years.

In yesterday's dead-tree edition of the New York Times, Gretchen Morgenson's article on the controversy did not mention until after the jump that the transactions had been approved by the IRS and Spitzer's own predecessor at the time. More: W$J editorial on the subject.

Spitzer vs. Guidant

No appearance of impropriety here, no sirree:

Of course, Spitzer's is not the only legal attack on medical device manufacturers. One major class-action suit against Guidant and two other cardiac-device makers has been filed by Minnesota-based law firm Zimmerman Reed.

That has generated a lot of press attention. It's probably no coincidence �- as the St. Paul, Minn., Pioneer Press reports -� that Spitzer met with several Zimmerman Reed attorneys to discuss his campaign for New York governor only a week before announcing his own case against Guidant.

Merck announced yesterday, and many press accounts repeated, that there are now 9200 lawsuits that have been filed against Merck over Vioxx (and another 188 class actions). But the 9200 number underestimates the scope of Merck's problem, because many of the lawsuits have multiple plaintiffs. (E.g., Oct. 15.) To date, the breakdown is:

Federal MDL: ~4,250 suits and ~11,425 plaintiff groups
New Jersey: ~4,000 suits and ~4,000 plaintiff groups
Other state courts: ~1,150 suits and ~2,825 plaintiff groups

In addition, there are 3,700 plaintiff groups who have signed tolling agreements with Merck in lieu of suit; a defendant would make such an agreement to prevent a suit from going forward in the hopes that the plaintiff will abandon suit before filing, while a plaintiff would agree to tolling to decide whether and where to sue. Where? Yes: a plaintiff can structure his or her suit to end up in federal court, where it would become part of the MDL; can sue Merck in New Jersey, where it would be consolidated in Judge Higbee's court, and Merck, because it had been sued in its home state, could not remove the case; or could attempt the tactic of suing an in-state co-defendant (again, Oct. 15) to keep the case in the plaintiff's home-state state court—or even of joining the plaintiff with another plaintiff and forum-shop for an even more favorable state court.

For a substantial number of potential plaintiffs, the statute of limitations expires September 30, 2006. Many plaintiffs are likely waiting to see how the next few federal and New Jersey cases shake out to decide where they want to file their cases. We can thus expect to see a tremendous increase in the raw number of pending cases in nine months.

In other Vioxx news:

CRC on Environmental Working Group

Writing for Organization Trends, published by the invaluable Capital Research Center, Martin Morse Wooster investigates in some detail (PDF) the trial lawyer connections of the Environmental Working Group, whose doings have aroused our curiosity on several occasions (here, here, here and here, for example). Wooster explores EWG's role in working with plaintiff's lawyers and the media to advance lawsuits against Monsanto/Solutia in Alabama and DuPont in its West Virginia Teflon operations, as well as in controversies that include arsenic, asbestos and even SUV rollovers (the latter being not particularly "environmental", but still of interest to EWG's constituency).

The Medical Malpractice Myth? at AEI

The AEI Liability Project is sponsoring a panel discussion on the recent book The Medical Malpractice Myth, Monday, December 19, 2005, from 2:00�4:00 p.m. Register for the conference online.

Is the real problem with America�s medical liability system too much medical malpractice rather than too much litigation? Are recent rises in medical malpractice insurance premiums caused by economic cycles instead of increasing claims? Should the system be compensating more people? In his new book, The Medical Malpractice Myth, Professor Tom Baker, who is the director of the Insurance Law Center at the University of Connecticut, answers these questions affirmatively, criticizes proposed and implemented liability reforms, and suggests, among other changes, the creation of a supplemental "no-fault" mechanism. Professor Baker will present his findings at this AEI event and will debate his conclusions with a panel of experts.

Panelists include David A. Hyman, one of the nation�s leading health law experts and a professor of law at the University of Illinois; and Point of Law contributors Ted Frank and Martin Grace. Jonathan Klick, an economist and a law professor at Florida State University, will moderate.

In the blogosphere, Kevin Drum recently wrote about the book favorably.

The Illinois Supreme Court sent Price v. Philip Morris back to the lower court with instructions to dismiss the case. Michael Greve criticized the trial court decision in his monograph "Harm-Less Lawsuits?"

The Illinois Supreme Court, in a 4-2 vote, held that the Federal Trade Commission, through the use of two consent orders, had specifically authorized tobacco companies to characterize their products as "light" or "low tar and nicotine." It was thus improper to hold that manufacturers' labeling of their products per FTC regulatory requirements was "consumer fraud." Whether this decision will affect similar litigation in Massachusetts and Missouri is unclear.

The Court expressed "grave reservations" about the appropriateness of the class certification and the calculation of damages, but withheld decision on those issues as extraneous given the decision on the threshhold question that there was no consumer fraud. Justice Karmeier's concurrence (joined by Justice Fitzgerald) is devastating on the issue of actual damages and damages calculations, however, and leaves no doubt how a reasonable court would decide the question.

The Court based its decision on an interpretation of Illinois state law; thus, contrary to early Wall Street Journal coverage, there are no legitimate grounds for appeal to the U.S. Supreme Court, and the decision is final.

Earlier coverage: Feb. 10; Aug. 16, 2004; Jul. 20, 2004. And on Overlawyered Oct. 11, 2004; Apr. 30, 2003; Apr. 6, 2003; Mar. 24, 2003.

Update: Madison County's profit from the appeal bond Philip Morris posted for the privilege of defending itself in front of the Illinois Supreme Court is $9,963,008.58, according to the Madison County Record's analysis of the books. Philip Morris doesn't get that money back, nor the millions of dollars spent defending itself against the absurd Price litigation.

Must reading: Peter Schuck of Yale Law School, in The American Lawyer, on the liberal Democratic slant on leading law faculties and what, if anything, to do about it. According to survey results, the Forces of Unanimity are particularly strong among professors teaching constitutional and international law. The most underrepresented group, relative to the pool of available legal talent from which faculty might be hired? White Republican women.

"Judicial Hellholes 2005"

The American Tort Reform Association is out with its annual listing of what it considers the worst or most unfair jurisdictions to be sued in. In order, this year's top picks are: the Rio Grande Valley and Gulf Coast, Texas; Cook County, Ill.; West Virginia; Madison and St. Clair Counties, Ill.; and South Florida. Another feature is "Points of Light" -- places where progress has lately been made against abusive litigation. New this year is a "Watch List" of localities where disturbing trends are on the horizon, or which have scored badly in the recent past.

Another step aimed at tackling the problem of malpractice by mouth: "The American Academy of Neurology has revamped its guidelines on expert witnesses to try to make sure that neurologists in the courtroom are as expert as they claim."

"Everybody should be scared"

John Stossel interviewed on audio, at American Justice Partnership.

Glenn Reynolds on Vioxx

At Instapundit:

...having taken Vioxx myself on numerous occasions, and having known plenty of others who did it's hard for me to take some of the claims seriously. All drugs have dangers after all....

Risk / reward here is asymmetrical: If excessive litigation causes people to die because treatments are taken off the market, there's nobody to sue. Something's broken.

Stuart Taylor, Jr. on Alito press coverage

You'll need to click the link fairly quickly, since National Journal will be rotating it off soon, but centrist columnist Stuart Taylor, Jr. has another hard-hitting column on the unfairness of some sections of the media toward nominee Sam Alito. Taylor's catalogue of reporters' "factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics" not surprisingly begins with the already notorious Knight-Ridder piece in which, according to reporter Stephen Henderson, "we didn't find a single case in which Judge Alito sided with African-Americans ... [who were] alleging racial bias." (In fact there have been at least seven such cases, Taylor says.) Taylor isn't kind to the rest of the 2,652-word article by Henderson and Howard Mintz either ("illiterate statistical analysis and loaded language ...highly misleading...systematic slanting"). The Washington Post, Boston Globe and New York Times come in for a drubbing too, not to mention "the consistently mindless liberal hysteria of the New York Times' editorial page". This is Taylor's third column on the Alito nomination; if the link no longer works, Michael J. Gaynor at Conservative Voice has some highlights.

Relatedly, T.R. Goldman at Legal Times reports:

With Senate Democrats clearly outnumbered, liberal interest groups are staking their campaign against Samuel Alito Jr. on a simple strategy: Transform Alito into Robert Bork by any means possible � whether the shoe fits or not.

(cross-posted from Committee for Justice blog).

I'm not as inclined as Michael to find fault with Judge Fallon's decision to declare a mistrial. The jury had deliberated for eighteen hours over three different days, and Fallon had issued an Allen charge to the jury (over the plaintiffs' objection), directing them to try especially hard to reach agreement and that each juror consider changing his or her mind. Such instructions (sometimes called a "dynamite charge") are controversial because some view it as coercive. I would've let the jury deliberate another day or two myself, but the attorneys were careful to avoid criticizing Fallon's decision publicly—though that may reflect the reality that there's no profit in angering Fallon in critiquing unreviewable decisions.

(The fact, incidentally, that it was the plaintiffs who objected to the Allen charge suggests that plaintiffs' lawyers were committing some serious spin when they expressed to the press disappointment with the mistrial declaration.)

Here's a link to the Wall Street Journal article ($) Michael refers to, which has been updated for this morning's paper from yesterday's web version.

The jury was almost unanimous -- all save one were prepared to find for the defendant Merck, on the grounds that Vioxx was not the cause of the defendant's attack.

According to the Wall St. Journal, the one holdout juror didn't seem to care about the law at all:
"According to one juror, the holdout wasn't swayed by the majority's argument. "Basically the sticking point was the marketing" of Vioxx, this juror said. "There was just folding of the arms and rolling of the eyes and not listening," and saying that "the marketing was inappropriate and that kind of thing," the juror added.

In other words, to this juror, forget causation, poor marketing makes one liable for things one didn't cause.

Again, why did the trial judge declare a mistrial so quickly? Was he indirectly sanctioning the plaintiff's mistrial motion, alluded to by me in an earlier posting on this site? That motion, based on a spurious publication issue, could arguably not have been directly granted without severe risk of appellate review. Has the judge done indirectly what could not have been directly done?

Meanwhile, in the UK, which has loser-pays, does not permit contingent fees, and generally does not have lottery-sized damages awards, both taxpayer-funded Legal Aid and private-market insurers have refused to advance payment for plaintiffs to proceed with their own claims against Merck over tenuous claims that Merck's sales of Vioxx was legally responsible for their health problems. UK attorneys will seek to forum-shop in New Jersey for hopes of avoiding British strictures (which include more rigorous expert evidentiary rules). One prominent British plaintiff blames Vioxx for her epilepsy, which perhaps explains why the government doesn't wish to use taxpayer money on her case. (BBC, "Patients lose Vioxx legal appeal", Nov. 29; Jon Robins, "'All I want is for this firm to be brought to justice'", The Observer, Dec. 4; BBC, "Thousands may seek Vioxx damages", Aug. 20).

(Updated from original 12/12 10:23 am post.)

Eighteen hours of deliberation did not produce a verdict and Judge Fallon declared a mistrial. Fallon instructed the jurors not to talk to attorneys or the media, but two jurors told the Associated Press and Wall Street Journal that the initial vote was 7-2 in favor of Merck, and was 8-1 when a mistrial was declared. One juror faulted Merck for failing to warn, but didn't buy Plunkett's claims of Vioxx causation; one cannot read too much into that evaluation, as Merck apparently focused on the causation issues as the weakest part of the plaintiff's case under the time limits Judge Fallon put both parties. Future federal trials under Judge Fallon will be tried in New Orleans, where the judge will shortly return. (In a typical multi-district litigation, cases are consolidated in the centralized transferee court solely for the purpose of pre-trial proceedings and returned to the original transferring federal court for trial, but the parties can agree to waive venue issues and re-file the case in the transferee court, as has happened with Plunkett and will happen with several other cases in 2006.)

Freed from a gag order by the end of the case, Merck attorneys criticized the New England Journal of Medicine editorial (Dec. 10, Dec. 8) as giving people a false impression.

The Washington Legal Foundation's web site has, available for free PDF download, an excellent study of the silica fiasco. Authored by Philadelphia attorney Nathan R. Schactman, the study exposes the absolutely gross violations of both medical and legal ethics that prevailed in the mass tort Silica Product Liability Litigation. It describes the steps taken by District Judge Janis Graham Jack to unmask the fraud, and makes forthright conclusions about the appropriate sanctions for physician and lawyer shysters. A very good read!

Taser on Trial
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The Christian Science Monitor reports on the lates trial against the manufacturer of Taser guns. The guns have clearly lowered the number of people shot by police officers, and have therefore indisputably saved lives.

The largest group to experience Taser shocks is actually the police themselves. Many departments - including the Maricopa County Sheriff's Office - had required officers to experience the shock before being allowed to use the gun. [Did they also require officers to get shot with a pistol before shooting others?] The plaintiff in the Phoenix case, a police officer, had osteoporosis and had apparently experienced back problems before having the Taser "tested" on him. He claims his back was broken.

Hmmm.... Methinks a proximate cause issue is at stake. Had the plaintiff been a perp, a broken back is definitely better than a dead body. But the plaintiff was a policeman who had done nothing wrong. Was Maricopa County's gratuitous and ridiculous policy of "testing" on innocent and (in this case at least) knowingly frail folks not the proximate cause of the injury?

[The county has since abandoned the policy, by the way.]

This is yet another example of products liability law as an end run around Workers' Comp limitations on suing one's boss.

Today's Wall St. Journal reports that Merck's most powerful defense witness may have become a distinct liability. [subscription required]. This piece elaborates on Ted Frank's Dec. 10 entry, below.

Merck's witness, Dr. Alise Reicin, was an author of a key NEJM study comparing Vioxx to a competitor's product. The November 2000 study stated that in a study of Vioxx versus naproxen, an older, generic painkiller, 0.4% of Vioxx users had heart attacks compared with 0.1% of naproxen users. The study's aggregate numbers, which weren't in the article, showed that 17 out of about 4,000 Vioxx users had heart attacks versus four of 4,000 naproxen users. Merck explained the difference by concluding that naproxen helps prevent heart attacks, though no clinical trials have shown that to be the case.

The article didn't mention an additional three heart attacks among Vioxx users, which occurred after the article was submitted for publication. These deaths raised the total heart attacks to 20 of 4,000 patients, or 0.5%. The additional deaths didn't affect Merck's conclusions at all. Nor was there any misstatement -- the facts were exactly as reported as of the date of submission for publication.

Merck said last week that it excluded the three heart attacks because they took place after the cut-off date the scientists had set for measuring benefits or risks. And the attorney for Merck noted that the additional heart attacks wouldn't have changed the conclusions of the journal article. Despite this, plaintiff in the federal Vioxx case on Friday asked for a mistrial on grounds of fraud. The judge has taken the motion under advisement, and will presumably only rule on it if Merck wins a jury verdict (the jury is still out as of this writing).

So, let's see, the failure to submit information irrelevant to a medical journal article has diminished the credibility of an author of the article. Makes sense to me!

Alito on antitrust

The American Antitrust Institute, a group that tends to favor expansive interpretations of its particular legal specialty, sniped at nominee Alito a few weeks back as "not favorably disposed toward the private enforcement of the antitrust laws" (coverage then: David Giacalone, AntitrustProf Blog, PSoTD, (Anti)Trust Me, Donald Luskin, GreatAjax, Antitrust Hotch Potch). Now Philadelphia's legal paper, the Intelligencer, is out with an analysis by Carl W. Hittinger that analyzes Judge Alito's stance on antitrust issues, still not very sympathetically but in a more careful and detailed way than AAI (making clear, for example, that on the crucial issue of standing, i.e., who can sue, Alito has taken very much the same conservative view as Chief Justice Roberts). At Larry Ribstein's Ideoblog site, Joshua Wright further investigates a key case (SmithKline), and finds Judge Alito to have been scrupulously strict on matters of both law and fact-finding (cross-posted from Committee for Justice blog).

P.S. The Committee for Justice, which promotes judicial nominees of the John Roberts/Samuel Alito Jr. stripe, has generously invited me to share some of my thoughts on the Alito nomination on its blog, which readers are urged to check out.

Why criticize Eliot Spitzer?

Hofstra lawprof Matthew T. Bodie professes himself puzzled as to why a number of bloggers are so critical of New York Attorney General Eliot Spitzer's various crusades -- is it that they admire the abusive business practices he's trying to reform? Tom Kirkendall is provoked into composing a comprehensive reply to that question.

Ross Runkel: "Employment Law 101"

Lawprof emeritus Ross Runkel, at his LawMemo.com, has begun a series entitled "Employment Law 101" which sets out to guide the nonspecialist reader in sixty short installments through the thickets of employment law. Recommended (via Giacalone).

The federal jury in Plunkett went home today without reaching a verdict. While the first two state-court juries reached a verdict in a matter of hours, neither was unanimous, while a federal jury must have unanimity. The Wall Street Journal reports that the plaintiffs have sought a mistrial over the New England Journal of Medicine allegations.

Derek Lowe has a must-read post about the New England Journal of Medicine controversy; some of his commenters have more incisive analysis than has appeared in any mainstream-media publication. Commenter "TFox" writes:

The real question is whether conclusions are changed. Considering all patients, there was a significant difference in MI even without the new data, as correctly reported in the paper. For the nonaspirin group, there was no difference reported in the paper, and when you throw in the new events, there's still no difference (as Derek pointed out). Again, the paper remains correct. Finally, the most important question, where the risk comes from. The paper ascribes the added risk to the high risk aspirin group. The risk differential here is so large that even 3 new nonaspirin events don't change it; high risk patients on rofecoxib are keeling over at a rate 20x that of their low-risk cohorts (8+% vs 0.5%). Curfman calls this conclusion "misleading", but the new data gives you the same conclusion as the old!

So are calculations made "incorrect"? Only in a way that an innumerate reader would care about. Are the conclusions "incorrect" and/or "misleading"? No and no. This is basic stuff -- I doubt this "Editorial" would have made it through peer review without changes. I wonder what process NEJM used to assess it before going ahead and publishing? And will they be reconsidering that process going forward?

The reason why, to me, the most innocent explanation makes the most sense, is that I can't imagine what motivation a dozen doctors would have to risk their professional careers over minor adjustments in data or presentation that doesn't materially change the conclusions of the paper, especially when the full data set will become public in a few months anyway. Earlier discussion: Dec. 8.

Surveillance video caught Dewey Morgan, the plaintiff in the next-scheduled welding MDL trial, getting on and driving a tractor, carrying groceries and doing vigorous yard work. Which was surprising, because Morgan had claimed that fumes from welding had completely disabled him with neurological injuries such that he couldn't do those things, and because Dr. Paul Nausieda had supposedly diagnosed him (as well as approximately 75% of the other plaintiffs in the multi-district litigation) with these disabling injuries. Defendants' suspicions had been raised by a May 2005 police report describing Morgan wrestling his 25-year-old son to the ground. A fire medic who had visited the Morgan residents on several occasions in response to domestic disturbances testified that Morgan had never used a cane or walker. (Morgan had asked for 16-hour-per-day attendant care and structural modifications for his home.) In a deposition, Morgan admitted lying. Nevertheless, he will take his case to a jury.

Plaintiffs had previously said Morgan's claims of welding injury are "representative of hundreds, even thousands, of similarly situated plaintiffs." The defendants have asked for sanctions and judicial scrutiny into the other diagnoses by Nausieda.

In other welding litigation news, an Illinois jury rejected Missourian Steve Boren's claims (Nov. 21) that welding caused his Parkinson's Disease. Defendants have won two out of three cases in Madison County, but, that's little deterrence in the world of lottery litigation when the third verdict is for seven figures. (Steve Horrell, "Jury rejects claims made by welder", Edwardsville Intelligencer, Dec. 5; Ann Knef, "Madison County jury rules for defense in weld rod trial", Madison County Record, Dec. 1).

Update: Egilman loses

Frequent plaintiffs' expert witness Dr. David Egilman of Brown University lost his harassing lawsuit against a lawyer and law firm that had exposed his violation of a court order (Jul. 29). Egilman says he won't appeal because he's already spent $150,000 of his own money on the case; there's no indication that the innocent parties he sued will be able to recover the six digits they must've spent defending themselves. Egilman, as reserved as always, compared his loss to "courts [that] said it was legal for blacks to be slaves or ruled it legal to deny women the vote." (Pamela A. MacLean, "Law Firms Not Liable in Alleged Web Hacking Case", National Law Journal, Dec. 9).

The November issue of Texas Monthly contains an article by veteran reporter Mimi Swartz criticizing the liability reforms enacted in Texas in recent years and arguing that it is now too hard to bring legitimate cases in the state's courts. Only a teaser for the article is available at the Monthly site, except for subscribers. Hugh Rice Kelly, general counsel of Texans for Lawsuit Reform, has written a lengthy memo responding to Swartz' article and defending TLR itself, whose leadership came under criticism in her piece.

The Federalist Society's New York City Lawyers chapter is sponsoring a debate next Tuesday evening, Dec. 13, on the merits of the campaign to persuade courts to seize control of school finance issues. Prof. Michael Rebell of Columbia, a leading supporter of school-finance suits, will face off against Prof. Michael Heise of Cornell. The moderator will be U.S. District Judge Loretta Preska of the S.D.N.Y. (details) (more on school finance suits).

The NEJM editorial, which has received a lot of credulous press coverage, looks awfully fishy to me.

  • The "omitted" data in question was outside the pre-determined scope of the study and wasn't available until after NEJM had signed off on the original article. (Executive editor Dr. Gregory Curfman argues that data is routinely updated before publication—but "data is routinely updated" is different from "pre-determined scope of a study is routinely disregarded," which is the issue here. If the latter is true, Merck needs to have a better explanation than this one, or it would appear that data-mining is at issue. Curfman's defensive and non-responsive attack on the Merck response is curious.)
  • The "omitted" data was known to the FDA in 2000 and published in 2001, and the NEJM editorialists admit they knew about it then four years ago.
  • The "omitted" data doesn't materially change any of the conclusions of the study.
  • The "omitted" data were included in Merck press releases.
  • The "omitted" data was right there on the Vioxx insert when Merck added an FDA-approved statement about VIGOR to the labeling in April 2002.

Why make a press release the afternoon of the closing argument? This looks like an attempt to affect the federal trial—and the NEJM editorial writers say they got their information from a deposition.

Even assuming improper data mining (i.e., would Merck have disregarded the scope of the study to provide positive data?) where is the proximate causal harm from the chronological difference between the NEJM Bombardier publication and the release of the full study? The additional data doesn't make the statistically insignificant risk-ratios statistically significant; it doesn't even change the percentages used in the Bombardier article for non-aspirin-indicated MI risk (0.2% before; 0.2% after).

Update: Evan Schaeffer and Kevin MD comment. As Evan points out (though he wouldn't phrase it the same way), the perception of the story is more important than the reality with respect to one of Merck's star witnesses. Forbes has done follow-up reporting.

The jury is hearing closing arguments in Plunkett now. (Angela G. Brown, AP, Dec. 8; Heather Won Tesoriero, "Attorneys Give Closing Arguments
In First Federal Vioxx Trial", Wall Street Journal, Dec. 8). Judge Fallon moved the trial along at a breakneck pace of two weeks for the entire matter. Plunkett is asking for non-economic damages of as much as $10 million and $400,000 in economic damages. (An earlier report that Plunkett was not asking for economic damages was incorrect.)

Over Merck's objections, Judge Higbee has consolidated the next two trials in the New Jersey proceedings. The two plaintiffs are both from New Jersey: 76-year-old John McDarby took Vioxx for four years, and 59-year-old Thomas Cona took Vioxx for twenty-two months. Both survived their heart attacks. Merck protests that the consolidation will muddy individualized issues of causation. The two heart attacks took place at different times, and Merck had different knowledge at different times. (Lisa Brennan, "Over Merck Objections, N.J. Judge Combines Vioxx Cases for Trials", New Jersey Law Journal, Dec. 2).

Why would the parties fight so hard over having multiple parties in the same trial? Perhaps because juries really do evaluate cases with multiple plaintiffs differently than cases with a single plaintiff. A study of asbestos trials by UCSD economics professor Michelle J. White found consolidated trials of two or three plaintiffs were 15 percent more likely to win compensatory damages than was an individual plaintiff. Plaintiffs in consolidated trials were 11 percent more likely to win punitive damages, and 54 percent more likely in bifurcated trials, than were individual plaintiffs, though punitive damages are less likely to be an issue in New Jersey because of the strict burden of proof in that state. The fact that a simple procedural machination can raise plaintiffs' expected returns by as much as 50% raises fundamental questions about the fairness of consolidations. (A similar problem occurs in criminal trials.) White discussed her paper at a 2002 AEI event.

Texas lawyers laid off

And the passage of liability reform seems to be the reason:

Silber Pearlman closed its Houston office Nov. 14, laying off five attorneys, and furloughed another three lawyers at the plaintiffs firm's headquarters in Dallas.

Steven Baron, an equity partner in Dallas who manages the firm, says the cutbacks are directly linked to tort reform. The firm handles litigation filed by plaintiffs suffering from diseases caused by asbestos and silica, and there's simply less work in that area, Baron says.

Kelo and MercExchange

In Kelo, a home-owner decided she didn't want to sell her home. In a 5-4 decision, the Supreme Court held that, so long as Kelo received compensation, the state could seize it for a private party who could put it to what the local government thought was a better use. Libertarians and other right-thinking people across the political spectrum were justifiably outraged at the imposition on property rights.

In MercExchange v. Ebay, a district court has held that Ebay willfully infringed one of MercExchange's patents. The question before the Supreme Court is whether a court can choose to refuse to grant an injunction on the grounds that MercExchange is "only" a licensor of the intellectual property, rather than one who has commercialized the IP: this sometimes gets the derogatory term "patent troll." In other words, if MercExchange hasn't used its property in a manner a court finds appropriate, it can be forced to license it to a private party at a price set by the court through litigation. This is now on the Supreme Court docket.

It would seem to me that the same people aggrieved by Kelo should be similarly up in arms over the property rights threatened by MercExchange. But the sympathies seem to generally run in favor of the willful infringer, Ebay—Mark Lemley and 34 other law professors (including bloggers Larry Lessig and Doug Lichtman) signed a brief in support of Ebay's appeal. Fortune's Roger Parloff, as Overlawyered documented Nov. 30, suggested giving courts discretion to decide who is a "patent troll" and who gets the right to an injunction. In other words, let the courts decide if someone is using their property in an acceptable manner, or if a third party can make better use of it, so long as they pay compensation.

The term "troll" is interesting; it presumably comes from the tale of the fairy-tale troll who refuses to let goats cross his bridge. The bridge may be the only way to cross the river, and the troll's actions are blocking that progress. But if the troll owns the bridge, how is the troll any different than the home-owner in Kelo? Parloff complains of the cases where several dozen patents are needed to create a particular technology, but the City of New London needed to acquire several dozen tracts of land to create the larger tract for their project, where a single hold-out can prevent the project from going forward. Noone suggests that Kelo is doing something wrong because she doesn't want to sell her home to New London, even though her local government thinks Pfizer can make better use of the land. Nor should they.

One big difference between a Kelo and a MercExchange is that Kelo has fairly clear title to her property, while a MercExchange's intellectual property rights are less well-defined and may eventually be invalidated by the Patent and Trademark Office. (Then again, Ebay had the opportunity to litigate these issues when MercExchange sued them; moreover, as a willful infringer, this isn't a question of a happenstance infringement of a submarine patent.) And I suspect a lot of the typical litigation reformer's hostility to freely-available injunctions is residual from the Lemelson outrage, where the holder of a series of exceptionally bogus patents was able to litigate his way to being a billionaire, and the patents weren't invalidated until well after his death.

But imagine a world where the land title system was as poorly kept as the patent system. The solution is clearly to fix the land title system, and perhaps to establish loser-pays rules to discourage speculative litigation and make whole the victims of such litigation; one wouldn't suggest giving courts discretion whether to evict trespassers. Here, too, the problem resides with the USPTO, which too easily grants thousands of patent claims through ex parte proceedings that overwhelm outmatched examiners. Litigation is a social cost, but the idea is to dial it back to make it more efficient, rather than to prevent property-owners from being able to vindicate rights entirely.

Now perhaps we, as a society, would prefer an intellectual property system where there is compulsory licensing, and the patent-holder does not have the right to exclude others from using her patent. I'm not inclined to believe that that is preferable to the status quo, but that's a debate that's beyond the scope of this post. Most importantly, it's a debate that should be conducted by our legislature, which can pass laws to that effect, rather than imposed by the Supreme Court de facto by abolishing the mandatory injunction. Certiorari should not have been granted, and the Federal Circuit opinion should be affirmed.

Bainbridge vs. Nocera

2005 scorecard for med-mal reform

An astonishing thirty-one states passed bills changing medical-malpractice law in 2005; some reforms were minor, some were illusory, but the issue was clearly at the forefront of the legislative agenda, with every state except Idaho and Nebraska considering at least one bill. The National Conference of State Legislatures has a handy web-page purporting to track all of the legislative developments. I wouldn't call the page definitive; for example, it mistakenly says the Wisconsin Supreme Court declared noneconomic damages unconstitutional, rather than noneconomic damages caps.

Blame the Law, Not the Lawyers

ABC's John Stossel vents in a column published today on the "extravagant waste" that is our civil justice system.

While I often agree with Stossel, especially when it comes to the cost of litigation in America, his criticism of lawyers in this column seems misplaced.

Blawg Review #35

...is up at Infamy or Praise, and mentions Ted's post criticizing Judge Posner's ruling in the Budget Rent a Car case.

Ortho Evra, cont'd

"A federal caution about potentially life-threatening effects of Johnson & Johnson's Ortho Evra contraceptive patch has fanned the flames of what could become nationwide litigation," and lawyers are beginning to advertise heavily around the country for clients, reports the New Jersey Law Journal. We covered the unfolding story Nov. 15. The Well-Timed Period has more, as does MedGadget:

...some sloppy reporting has muddled the issue: It's not yet clear whether the patch's higher basal estrogen levels causes more adverse effects for women.

(emphasis in original). That's not stopping the rush to court, of course.

Jonathan's post yesterday mentioned the study and related paper (both PDF) done recently by Prof. Anjan V. Thakor for the U.S. Chamber of Commerce on securities class litigation, pointing out that these actions provide compensation to some investors who suffer no net losses at all from challenged practices while undercompensating many other investors. The work has come under discussion at a couple of other weblogs, including Lyle Roberts' and, especially, Securities Litigation Watch, here, here and here.

Bill Sage responds

In our featured discussion on medicine and the law, spurred by MI's Trial Lawyers, Inc.: Health Care, Bill Sage has recently entered his lengthy reply to my earlier long posting. Neither of these are quick reads, but I do think you'll find them informative if you want to think about litigation and medicine, and I encourage our readers to check out the full exchange when they have time. Bill's final post also includes a bibliography of his work in the area, many with online links. I may respond, though very briefly, and I'll alert everyone here when or if I do. For now, I'd like to thank Bill for his extensive contributions.

General Motors CEO Rick Wagoner has a column in today's Wall Street Journal chronicling the plight of GM, which has lost a lot of money and is closing 12 North American plants. His key point: though GM is doing well in international markets, it suffers at home from key competitive disadvantages. The two domestic disadvantages he cites? Health care costs and litigation:

Litigation now costs the U.S. economy more than $245 billion a year, or more than $845 per person. That's more than 2% of our GDP. No other country has costs anywhere near this level. And the perverse thing is that, in many cases, the majority of courtroom settlements go to the lawyers and other litigation costs, not to the injured parties.

A study by the U.S. Chamber of Commerce Institute for Legal Reform highlights the problem of �deadweight loss� in securities class action litigation.

The Economic Reality of Securities Class Action Litigation, authored by Professor Anjan V. Thakor of Washington University in St Louis, concludes that the U.S. securities class action system does not compensate investors appropriately for alleged securities fraud, overcompensating some investors but undercompensating others.

Sorry, Wisconsin docs

Democratic Gov. Jim Doyle, who's been close to the trial lawyers politically, just vetoed legislation that would have provided for limits (higher than the old ones) on noneconomic damages in med-mal cases (Nov. 23, etc.)(via KevinMD). The state business organization Wisconsin Manufacturers and Commerce, which has been mobilizing lately in response to the activist pro-plaintiff turn taken by the state's Supreme Court, expresses its disappointment.

How not to support Samuel Alito

First the Committee for Justice ran an ad supporting nominee John Roberts which, as we observed at the time, portrayed him as "robotically committed to a checklist of results desired by conservatives". Now the same group is out with an ad breathlessly claiming that Judge Alito's confirmation is needed to repel an "assault" on "freedom of religious expression". Ann Althouse is on their case. For more on the "assault on Christmas" meme, see Cathy Young's comments.

More: a friend writes as follows --

If you don't care for the Committee for Justice ads, maybe you could say a kind word about the perhaps more high-toned spot put together by Progress for America and featuring four of my fellow former Alito clerks. It's called "Confirm" and can be found here.

Ann Althouse might think the background music is still a bit cheesy, but you can't have everything.

Scruggs' Katrina strategy

"Sniper-shot" cases rather than pushing lots at once, he tells the Biloxi paper:

His Scruggs Katrina Group, which includes attorneys from six firms, has selected one family to sue each of the major insurance companies in Mississippi. The model family on each lawsuit was selected to be representative of the insurance company's clients.

Each family has agreed not to settle its case unless its insurance company offers similar terms to all policyholders.

Speaking of slush funds

A loophole in Illinois campaign finance law allowed lawyers to funnel money to nonprofit groups that then funded Gordon Maag's Supreme Court election campaign, while hiding the source of their funding. The Edwardsville-based "Justice For All Foundation" identified the sources of $561,000 it spent last year on the election: the bulk came from Randall Bono ($290,000) (Sep. 20, 2004); Stephen Tillery ($30,000) (OL Apr. 5, 2004); and the SimmonsCooper law firm ($215,000) (e.g., OL Jan. 5, 2004).

The Illinois Coalition For Jobs, Growth and Prosperity is facing a similar challenge for disclosure of its funding of Karmeier's campaign, but, unlike the Justice For All front group, the Coalition makes clear that it's a consortium of business groups. (Kevin McDermott, "Settlement reveals lawyers made big campaign donations", St. Louis Post-Dispatch, Dec. 3).

According to the Oct. 31 Nashville Tennesseean, plaintiff's lawyers settling an antitrust class action over alleged price-fixing of neoprene, a synthetic rubber, elected to drop a tidy $2.9 million windfall onto the grateful Vanderbilt University Law School, their alma mater, for purposes of a "new civil litigation and dispute resolution program". A judge made the money available on a cy pres basis because it was difficult to identify consumer beneficiaries entitled to join in the settlement. One of the lawyers responsible for the arrangement, Dewey Branstetter, is a potential candidate for mayor of Nashville in 2007.

It appears from the coverage that the consumer class being represented was nationwide. And yet: "Giving Vanderbilt the money was appropriate, law professor Richard Nagareda said, given that the case started in Nashville and the law school trains students to negotiate similar settlements." Not only that: "Frankly, we had a good ongoing relationship with these lawyers," Nagareda said. If not before, then they sure do now. (More: VULS press release). Oh, well, at least they haven't renamed the whole darn school after their benefactors yet. More on litigation slush funds here, here and here.

Yale Law vs. Alito

Never Yet Melted has the latest on the party of orthodoxy in New Haven, as well as on the dissident grass coming up through the concrete.

Good Guys Win One
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The Supreme Court has just denied cert, confirming the First Circuit Decision holding the Palestinian Authority and the PLO liable for more than $116 million in damages, after the deliberate and brutal slaying of a US citizen by Hamas savages (sorry, I meant "militants", in WashPost parlance) in Israel. The 1st Circuit decision referenced above is worth a read. The heinous Ramsay Clark again went down to legal defeat in this one, in his vain attempt to fill the coffers of the terrorists.

Now, when can we expect the plaintiffs to attach the Palestinian mission to the UN?

Newsweek's Gasparino on Vioxx

Consumers, he says, are going to be the biggest losers in the litigation:

I'm here to tell you that the Vioxx case is plenty more complicated that Lanier lets on, and unfortunately for all of us, its impact will be felt by far more people than the 7,000 Merck employees who will soon lose their jobs. ...

Which brings me to my larger point: when are juries going to take into account the economic costs of their action? I'll be the first to admit that sometimes it's easier to hate corporate America even more than all those loathsome lawyers (or for that matter, nerdy journalists). I, for one, have made a career exposing the duplicity and corruption of Wall Street's top firms, and I'll be the first to side with any plaintiff that has a clear-cut case of fraud.

But such black-and-white cases, at least in my experience, have been rare....

He even quotes our own Jim Copland:

James Copland, director of the Center for Legal Policy at the Manhattan Institute who has studied the history of jury awards, says the final liability "almost always blows past the initial estimates."

WSJ on asbestos probe

From Friday's editorial (sub-only):

...Much of what a grand jury does is secret, but a few details are leaking out.

Among them is a recent court filing, in which one doctor involved in the Jack opinion, James Ballard (responsible for at least 11,000 asbestos diagnoses), has admitted he is a "subject" of a "criminal" grand jury proceeding. He and another asbestos diagnoser -- Dr. Ray Harron -- are already lawyered up and asserting their Fifth Amendment rights. Yet another physician, George Martindale, has sent documents to the grand jury suggesting that trial lawyers misused his work in court, as well as encouraged him to shut up about certain details in his deposition....

Even Congress is finally getting in on the act, with House Republicans Joe Barton and Ed Whitfield probing the key players in the Jack litigation. Mr. Whitfield's subcommittee recently voted 11-0 to authorize subpoenas to at least four doctors. To date, none of the doctors has supplied the requested documents; some are citing constitutional privileges. The committee is considering its next steps....

While much of the subpoena focus has been on doctors and screening companies, the trail is increasingly leading to the law firm door.


Kate Litvak finds fallible Steve Bainbridge's defense of the papal statement condemning usury.

Judge Jack Weinstein, who once coerced manufacturers of Agent Orange to settle a class action Products Liability suit that he himself later declared was legally defective, has just decided that New York City's lawsuit against gun manufacturers may go forward, despite passage of a federal law this fall that was specifically designed to protect the firearms industry from such suits.

Judge Weinstein decided the federal law didn't apply to New York's nuisance suit. If this view prevails, the law will have become totally sterilized.

Now, I have been critical of federal gun manufacturer protection unless it relies explicitly on the Second and Fourteenth Amendments. [You can find this issue debated, on this forum, here.] But Judge Weinstein's decision is not based on federalist grounds -- it is based on anti-gun grounds, in my opinion. I hope the Second Circuit reverses; otherwise millions will be spent to modify the federal statute to reduce further the interpretive leeway of an anti-gun judge.

So suggests a commenter on Evan Schaeffer's blog who takes me to task for my earlier post on the start of the Plunkett Vioxx trial.

But, if anything, I was too easy on Lucchesi, whose opinion is junk science.

A pathologist recoils...

Law profs rate Alito -- and get a shock

Professors Stephen Choi of Berkeley and Mitu Gulati of Georgetown devised an evaluation system for U.S. circuit court of appeals judges, ranking them on criteria intended as measures of independence and influence among peers. According to the AP, Profs. Choi and Gulati admit they expected prominent conservatives such as Samuel Alito, Michael Luttig and Edith Jones to fare poorly. "Instead, they got surprisingly high marks." We could have told them that. Judges Posner and Easterbrook took the top two slots -- no surprise there, either.

"Punishing success in the oil business"

"We remember the high-price periods with bitter tears, but we take the low-price periods as part of the natural order." And while our lawmakers may arrange to confiscate a goodly share of the "windfall" when bets pay off, the periodic busts are strictly a problem for the oil producers to work out on their own, notes Steve Chapman. More: Caroline Baum, Bloomberg News (via Atlasphere).

Global warming, cont'd

London via Reuters: "Companies which contribute to climate change will increasingly face legal action, law firm Freshfields said on Wednesday, launching UN-sponsored research which highlights investors' environmental responsibilities." More: here, here, here, here, and here.

What evidence will the jury be allowed to hear at trial? What evidence will Merck be forbidden from introducing? Judge Fallon's Nov. 18 order is revealing and provides hints for how the two-week trial might unfold. For example, if the plaintiff attempts to claim loss of consortium and pain and suffering from Irvin's death, Merck may be allowed to introduce evidence that the plaintiff widow was separated from Irvin at the time. (Plunkett disputes this, though hospital records state differently.) Merck will not be allowed to introduce evidence that Irvin was stealing from his employer or of his DUI arrests, the effect of a large judgment on pharmaceutical research, that doctors wish that Vioxx were still available for sale, that the number of heart attacks in the US did not go up while Vioxx was being used by millions of Americans, that Merck executives took Vioxx, or that Health Canada has adjudged Vioxx as safe as other NSAIDs.

Liability reform in Georgia

Dan Pero on how the state's trial bar is working on multiple fronts to undo last year's legislation.

Codifying Daubert



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.