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September 2006 Archives

Vioxx lawsuits multiply as key deadline nears

Today is September 30, 2006, two years to the day when Merck withdrew Vioxx from the market because of concerns of increased heart attack risk; we told you back in December that, because the statute of limitations in many states was two years, one could expect the number of Vioxx suits to skyrocket around now, and that prediction is coming true. (Peter Loftus, "Number of Vioxx-Related Lawsuits Tops 22,000 as Key Deadline Nears", Wall Street Journal, Sep. 29; AP, Sep. 29).

The forum-shopping decision seems to have led to New Jersey, where Judge Higbee has made a series of plaintiff-friendly rulings, including the questionable decision to throw out the Humeston defense verdict. The number of cases there has nearly doubled to over 14,000, while the number of federal cases is up only 15% to 6,535. Mark Lanier's October threat to file 18,000 cases across the country in multiple state courts to try ten at a time doesn't seem to have been executed; will the press remember this bluff in future fawning press coverage?

There are another 5800 plaintiffs out there with agreements with Merck to extend the statute of limitations. The Wall Street Journal repeats the mistake of neglecting to mention how many of the 22,000 lawsuits have multiple plaintiffs; if ratios have been consistent across different jurisdictions, those 22,000 lawsuits represent about 37,000 plaintiff groups, and still do not include the rush to the courthouse in the last week or two.

Of course, not all of these cases will be tried. AP quotes Merck defense attorney Ted Mayer as saying 328 federal cases have been dismissed (though doesn't follow up to determine if those have been dismissed with prejudice).

UK adopts age-discrimination law

New regulations adopted by the Labor Government banning most age discrimination in private employment come into effect this week. One wonders to what extent they have absorbed any lessons from the U.S. experience.

Big Brother in NYC's kitchens

The WSJ's "Taste" page makes the connection between Mayor Bloomberg's new french fry grab (see recent Overlawyered coverage) and his administration's earlier, unsettling announcement (see May 5) that it was making diabetes into a reportable disease whose sufferers would be subject to "interventions" by the city. And the NYT finds that even among restaurant owners who've been successful in replacing trans fat, there's strong opposition to City Hall's authoritarian attitude: "I don't want to be told what to eat," says Alan Rosen, co-owner of Brooklyn cheesecake palace Junior's.

Silencing NY lawyer-bloggers, cont'd

At the New York Sun, Joseph Goldstein covers the controversy (earlier coverage here and here)(via CL&P).

Because there's apparently a constitutional right to have it indexed for inflation if it's to exist at all, or some argument to that effect.

Pain and suffering from "lost innovation"

Reports Forbes (via Lattman): "Start your calculator, Bill Gates. Iowa plaintiff lawyers want Microsoft to pay pain-and-suffering-like damages to consumers of Microsoft products. Microsoft's actions, according to the plaintiffs, have denied consumers a better computing experience (remember Netscape?), so they deserve compensation for 'lost innovation' in the marketplace." The class action, one of those still left unresolved from the anti-Microsoft onslaught of the late 1990s, is being headed up by former ATLA president and Iowa lieutenant governor Roxanne Barton Conlin. (Update Mar. 2007: case settles).

Liberals, conservatives and tort law

Stephen Sugarman, of Berkeley's Boalt Hall School of Law, has some interesting observations in this SSRN paper (via Childs). Among the trends Sugarman notes in recent years: "the near evaporation of support for alternative compensation plans by those on the left", reflecting the declining role of academic reformers even as "plaintiffs' lawyers and their allies" grow more vocal in influence (p. 13).

"US Patent Reform: Could 2007 Be The Year?"

Phil Wallach points us to this interesting and lengthy blog post by Sarah Lai Stirland up at IP Watch. And here's the Intellectual Property Owners' Association's comparison of various proposals floating around Washington.

A note on spinach law

From the Wall Street Journal article that Michael mentioned:

While Mr. Marler says the consulting is part of the firm's mission, critics say it is simply a way to win future plaintiffs. "You generate business by raising your profile," says Ted Frank, a tort-reform advocate with the American Enterprise Institute. "If you have a niche in the law, you're going to want to push your expertise out there."

For the record, and for fairness to Mr. Marler, my next sentence was "Defense attorneys do this, too."

Marler Clark may be guilty of self-aggrandizing: as another attorney notes, the food-safety reforms the firm takes credit for are industry-driven. The bad publicity from food poisoning costs far more than the damages awarded, and Marler Clark's lawsuits are more about ambulance-chasing after the injury and problem has been noted than about bringing attention to and correcting dangerous conditions. Their dozens of Googlebombing splogs may be objectionable for other reasons. But I don't find their marketing unethical. Unlike many other entrepreneurial plaintiffs' attorneys, Marler Clark isn't manufacturing injured plaintiffs, as opposed to tracking down the handful of people who suffer food poisoning. The firm has tried only one case, but these are suits where liability and injury and causation tend to be clear: what's to try? (Of course, this assumes that they always go after the right defendant, and the article doesn't say how the firm handles cases where an outbreak can't be traced to a single source.) The damages the firm wins in settlement, if true, may be ludicrous at times ($500,000 for vomiting and diarrhea in a "less-severe E. coli case"? I'll take that trade), but that's the fault of the legal system, not the law firm.

"Corporate America Takes On Spitzerism"

That's the title of Kim Strassel's must-read in the Wall Street Journal, which is available on the web as a reprint, profiling John Engler's and Steve Hantler's reform efforts with the American Justice Partnership. Update: HTML version.

Race to the Courthouse...

The Wall St. Journal (subscription required) has a nice piece on the aggressive Seattle law firm that is the quickest to the draw on the E-Coli lawsuits. The small law firm's advertising blitz (including a vanity license plate that reads "E-COLI" is highlighted. Note that the firm has tried exactly one lawsuit, but apparently settles many others. "Bill is a good guy and a good lawyer. He's done a fantastic job of promoting himself and his firm and has done a good job for his clients," says Fred Pritzker, at rival plaintiff shop Pritzker Ruohonen & Associates, in Minneapolis. "Bill [Marler] is great at putting press releases out, writing editorials and filing lawsuits early on."

Slavery reparations reaches 7th Circuit

The suits against leading corporations seeking damages for the antebellum activities of their predecessor entities hits the Seventh Circuit today, probably with a splat. More from Chicago Sun-Times via Althouse: at least it's not about the money.

Smith v. Merck goes to federal jury

And add this case to this list of cases that have gone to trial where there's evidence the plaintiff wasn't even taking Vioxx. (AP, Sep. 26). (Update: Merck wins.)

"Light" tobacco class action, cont'd

Judge Jack Weinstein's doomed-on-appeal order certifying a class against the tobacco industry over its marketing of "light" cigarettes is here in all its 540-page splendor (PDF)(via Schaeffer). Jacob Sullum at Reason "Hit and Run" examines some of the weaknesses of the plaintiffs' theories. And it's safe to say that the editorialists at the New York Sun aren't planning to start a Judge Weinstein fan club either.

Fastow's sentence

Tom Kirkendall notes the difference between Andy Fastow's (and the Enron Task Force's) representations to the Lay/Skilling jury and to the sentencing judge. Peter Lattman notes that Milberg Weiss's Bill Lerach lobbied for a lighter sentence in exchange for Fastow's testimony against peripheral deep pockets in the Enron civil trials. Speaking of peripheral parties, Fastow, who directly profited from frauds committed at Enron and was central to the entire endeavour of whatever wrongdoing there was, received the same six-year sentence as bystander Jamie Olis.

Arsenic-in-chicken-feed suit

An Arkansas jury took 21 minutes to find that Alpharma Animal Health wasn't legally responsible for a local youth's leukemia.

The lesson from H-P

As I discuss here, it's not all about pretexting -- it's about the business sense that has been lost in the movement toward corporate governance reform.

Vioxx: more on Texas jury shenanigans

At the WSJ Law Blog, Heather Won Tesoriero reports that "the plot thickens" on those revelations that one of the jurors who awarded Felicia Garza $32 million on her Vioxx claim had accepted between $5,000 and $10,000 in interest-free loans from Ms. Garza since 2003. More details here.

Blawg Review #76

Michael Krauss has already mentioned the ruling; he also discussed the case in more detail March 30. An earlier attempt by Weinstein to certify a tobacco class action was rejected by the Second Circuit in 2005. Today's ruling directly contradicts the Seventh Circuit's In the Matter of Bridgestone/Firestone, Inc., Tires Products Liability Litig. ruling. Also worth reading is Justice Karmeier's concurrence (scroll down) analyzing an identical Illinois suit that the Illinois Supreme Court struck down after a bench-trial verdict for the plaintiffs.

Note that these light-cigarette class actions expressly disclaim personal injury claims; they are pure theories of "consumer fraud" that seek to aggregate plaintiffs whether or not the plaintiffs were actually misled by any alleged fraud, or suffered any injury. For much more on this subject, and the huge public-policy problems it creates, see Michael Greve, Harm-Less Lawsuits? What's Wrong with Consumer Class Actions, and Victor Schwartz's and Cary Silverman's recent, and very important, article in the Kansas Law Review, Common-Sense Construction of Consumer Protection Acts.

Judge Weinstein is back at work

Judge Weinstein has authorized a class action tobacco suit for all smokers of "light" cigarettes, based on fraud. It is a nationwide class, though of course individual cases and state law on fraud may vary. Tobacco stocks sunk 5% immediately on the news.

Small-town New York justice

The New York Times today starts a three-part series uncovering incompetence and abuse in the nearly 2000 "justice courts" dotting villages and towns throughout the state; qualifications requirements are lower for these positions that have the power to jail defendants than they are for the state's "manicurists and hair stylists." (William Glaberson, "In Tiny Courts of New York, Abuses of Law and Power", New York Times, Sep. 25) (via Childs).

Silencing N.Y. lawyer-bloggers? II

Walter has already written about the ludicrous proposed new regulations of attorneys in New York that would effectively bar all public writing about the law by members of the New York bar if it didn't so blatantly violate the First Amendment. One shouldn't be surprised, I suppose, that the Naderite Public Citizen Litigation Group opposes additional burdens on the plaintiffs' bar. But what I found fascinating is the arguments being used: additional record-keeping and regulation creates an expensive burden that hurts consumers in the long run. Just so—and one hopes, perhaps in vain, that Public Citizen remembers this principle when litigating purportedly on behalf of consumers against businesses that aren't the plaintiffs' bar.

Progress in Madison County, Ill.?

Ed Murnane, of the Illinois Civil Justice League, detects some (PDF).

Patent-suit capital Marshall, Texas

The New York Times has an informative if belated look at the Best Little Courthouse in Texas, its bulging docket of patent cases and its background as a plaintiff-friendly venue for personal injury cases. See earlier coverage on Overlawyered here, here, here, etc.

Gretchen Morgenson tries to justify regulating energy markets based on the recent loss at Amaranth. I explain why she's wrong.

NYC Commission on Human Rights

The New York City agency, which duplicates the functions of such federal antidiscrimination agencies as the EEOC and yet adopts an even wider mandate, "interprets 'discrimination' in the most extraordinary ways", notes Brian Anderson, senior editor of the Manhattan Institute's City Journal. See, for example, Sept. 9.

Incidentally, we've just created a new posting category entitled "New York & Region" for the many posts that reflect legal issues arising in New York City/State and neighboring New Jersey and Connecticut.

"Coalition Lobbies for Patent Legislation"

There probably isn't time on the legislative agenda for S. 3818 to pass this term, but there's bipartisan support on the issue, and it will likely be high on the agenda of the 110th Congress. (Joe Crea, Legal Times, Sep. 20).

Bainbridge on a roll

Occasional Point of Law contributor Stephen Bainbridge is on a roll on his blog: important posts on Sarbanes-Oxley (Sep. 20 and Sep. 21); on Lockyer's global warming suit (including a link to an excellent amicus brief in a similar case); and on the problem of voter fraud.

Bainbridge also links to what appears to be a fascinating paper by Robert Rasmussen and Doug Baird that suggests "that the challenge of aligning the managers' incentives has been drastically overstated and the way in which legal rules affect hiring (and firing) decisions has been too often ignored."

More Milberg indictments?

Check back in two months, say Dow Jones/WSJ sources.

Pelman v. McDonald's going forward

The infamous class action litigation seeking to blame McDonald's for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, "N.Y. Judge Rebuffs McDonald's Motion to Dismiss Deceptive Ad Claims", New York Law Journal, Sep. 22). Judge Sweet's opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald's can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald's if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.

Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as "pure hype" because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It's a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Overlawyered.

In a statement, Merck said "Among several independent grounds for reversal, the company will argue that there was insufficient evidence that Mr. Ernst suffered an injury due to Vioxx and that it was improper to allow testimony by a previously undisclosed witness midway through the trial." (Linda Johnson, AP/Business Week, Sep. 21). Earlier press accounts falsely stated that the judgment was for $253 million, which was the amount of the verdict before the court entered judgment. Why did it take Merck so long to appeal? See our coverage of that question Nov. 28 and Jun. 16.

In other news, (as Michael Krauss noted on Aug. 30) Judge Fallon threw out the $51 million damages award in Barnett v. Merck, correctly noting that it was "excessive under any conceivable substantive standard of excessiveness." ("Judge Calls $51 Million Award Against Merck 'Grossly Excessive'", Wall Street Journal, Aug. 31). In one of the mysteries of American law, because the $50 million "compensatory" damages award was based on "passion or prejudice," the punitive damages award of $1 million was also thrown out—but Fallon refused to presume that the jury's factual findings are not similarly afflicted with "passion or prejudice," even though they were made at the same time, so the liability verdict stands, at least until Merck can ask the Fifth Circuit for review, which won't happen until judgment can be entered on the damages trial.

Interesting trivia unremarked upon by the press that can be found in Judge Fallon's opinion: Barnett's attorney argued that punitive damages should be awarded because "otherwise Merck would continue to defend itself in courtrooms around the country." (An objection was sustained.) Similar trial tactics: Sep. 8.

From Sue Shellenbarger's "Work and Family" column in the WSJ:

...some parents aren't eager to have their kids grow up to be like them. Nearly three-fourths of physicians are less willing than in the past to encourage their children to follow their footsteps, says a 2005 survey of 736 doctors by Doctors Co., a Napa, Calif., insurer; fear of malpractice lawsuits is cited.
A summary of that survey is here.

Class Action For Discarded Spinach

The Chicago Sun Times reports that an Illinois restaurateur has commenced a (national?) class action against a California food company for the value of discarded spinach.

George Gregousis, who owns Hamilton's Restaurant in Glenview, threw out $40 worth of spinach when he heard about the outbreak. His restaurant has stopped serving spinach salad and omelettes, he said.

The defendant is Natural Selection Foods, a San Juan Bautista, Calif.,company that sells prepackaged spinach under Earthbound Farm and other brands. Federal authorities have identified Natural Selection as a possible source of the E. coli outbreak.

Gee, I wonder why the suit was launched before knowing for sure who caused the contamination?

Checking employment references

HR Daily Adviser (via George Lenard) has some advice on how to get informative references on prospective employees despite the environment of litigation-fear. Sample: "Tell them that you are asking how to manage the person in the future, not about past performance," writes [Stephen D.] Bruce. "That way, it's not - technically - a reference check."

Birth injury compensation funds

Virginia and Florida already have such funds, and now South Carolina is considering joining them (via Common Good).

California's suit against automakers

Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy (see below). The complaint will be posted to the Liability Project's Documents in the News section shortly.

What should we do about SOX 404?

I have some thoughts about proper repair or disposal of the infamous internal controls reporting provision.

"Automakers sued for global warming"

Lockyer wallets, here he comes! "A lawsuit has been filed in a U.S. federal court against leading U.S. and Japanese auto manufacturers, alleging their vehicles contribute to global warming. The legal action, filed Wednesday in Oakland, Calif., by California Attorney General Bill Lockyer, alleges the vehicles' emissions have harmed the resources, infrastructure and environmental health of California, costing the state millions of dollars to address current and future effects."

KPMG as a cautionary tale

With evidence surfacing that the KPMG's marketing of tax shelters may not have been so wrong after all, on top of Judge Kaplan's rulings in the KPMG case about violations of the defendants' constitutional rights, I think it's time to start seeing KPMG as a lesson in the potential costs of using the criminal law to deter corporate misconduct.

Silencing N.Y. lawyer-bloggers?

Sweeping new rules on lawyer advertising from the New York bar might make it nearly impossible for attorneys in the state to publish or contribute to blogs about the law. (Each individual post would trigger elaborate compliance obligations of its own.) Eugene Volokh finds grounds for alarm, while Carolyn Elefant rounds up links and other stirrings of opposition. For a similar controversy from Kentucky last year, see OL Jun. 8, 2005.

Prof. Bainbridge (channeling Henry Manne) calls readers' attention to the question of whether the New York Times's Gretchen Morgenson was born yesterday.

In Waukegan, Ill., 49-year-old Beatrice Vance died of a heart attack after waiting two hours in a hospital waiting room. A coroner's jury has declared her death a homicide. (Lake County News-Sun, AP, Chicago Tribune). Medical blogs are discussing: GruntDoc, MedPundit, KevinMD. Plus a discussion at Prof. Bainbridge's.

Daniel Lightman in The Times (U.K.):

"This Court," declared Lord Eldon in 1817, �is not to be required on each Occasion to take the Management of every Playhouse and Brewhouse in the Kingdom.� Lord Eldon reflected the judiciary�s reluctance to interfere with a company�s internal management.

But some critics contend that the Companies Bill now going through Parliament will lead to more lawsuits against directors � so requiring the courts to become more involved in disputes over the internal management of business ventures. The Bill, they say, will deter people from becoming board members. ...

Critics of the Bill have two main concerns: first, the statutory derivative claim will apply to a broader range of conduct than is now possible at common law, since it applies to any breach of duty or negligence, even if the act or omission has not benefited the director and he or she has acted in good faith. The scope of directors� duties is itself widened by the Bill, which puts them on a statutory footing for the first time. Clause 173 imposes on the directors a duty �to promote the success of the company for the benefit of its members as a whole�. They are specifically required to have regard to (among other matters) the interests of the company�s employees, the impact of the company�s operations on the community and the environment, and the desirability of the company maintaining a reputation for high standards of business conduct.

The second concern is that defendants will cut deals in settlement that benefit those who sued but not the shareholders or corporation as a whole. That does sound familiar, doesn't it? On the other hand, backers of the pending bill say it prescribes tight judicial control to prevent unmeritorious claims from going forward -- an improvement, perhaps, over the American model of freewheeling derivative litigation.

New Times column -- BlackBerry suits?

My latest column for the Times Online (U.K.) is now up and deals with one academic's recent prediction that employers would become targets of lawsuits based on their workers' BlackBerry addictions. An excerpt:

...it made a perfect hey-Martha-look-at-this story, arriving amid the August silly season. As it happens, media people love to confess to their own BlackBerry addictions, which subtly reflect their own importance (people need to reach me day and night!) and in any case make a more agreeable topic of conversation than their gin, shopping or sex addictions....

All that having been said, it�s very unlikely that employers need worry about BlackBerry-addiction suits. Despite rumors to the contrary, American courts have not in fact been much inclined to let sunken-eyed Jane blame her addictions on deep-pocketed James. Compulsive gamblers� suits have mostly flopped so far - as have those alleging videogame addiction - while the very modest success enjoyed by plaintiffs in fast-food lawsuits has come on other legal theories, such as ingredient mis-labelling.

(Walter Olson, "BlackBerry suits?", Sept. 18). For earlier posts on the subject, see OL Aug. 25 (Ted), Sept. 8 (me)(cross-posted from Overlawyered).

In State Farm Insurance Companies v. Premier Manufactured Systems, Inc. (Az. Ct. App. Aug. 29, 2006), manufacturers can escape product liability by shifting blame upon a part supplier. While this appears to be a defense-friendly verdict, it adds further inefficiency to a product liability system: first, it creates perverse incentives because manufacturers that vertically integrate will be treated worse than manufacturers that do not. Second, it encourages plaintiffs' attorneys to file shotgun complaints against dozens of parts suppliers.

The Coase Theorem would note that this legal rule will not actually shift liability in the long run: either end-manufacturers already demand indemnification for suppliers through existing contractual relationships (as recently happened in the case of exploding Sony batteries in Dell laptops), or those contractual relationships will be modified to reflect the new legal rule. So the only effect of this opinion is to squeeze one particular plaintiff, and to raise expenses to all parties in future litigation.

There are problems with strict products liability to be sure, but they will not be resolved by twisting the concept of comparative fault in such a manner.

(Side note: it was a subrogating insurance company arguing against reducing manufacturer liability. Just another reason why it is nonsensical to claim that insurance companies are the sole motivating force behind reform.)

Smith/Bainbridge saluted

Our new Featured Discussion has been widely discussed around the world of legal blogs, and nowhere more breathlessly than at Concurring Opinions in its hosting of Blawg Review #75:

One [of] the great attractions of the legal blogosphere this week was the cage match on corporate governance at the Manhattan Institute�s blog Point of Law (Motto: �Two will enter, one will leave�) between Gordon Smith and Stephen Bainbridge. Topics included shareholder power, authority and accountability, director primacy, hymns of praise to the status quo, and calls for change. Needless to say, it was the sort of thing that gets the adrenaline pumping among teenage boys.

NYC regulates gas pricing

Per the Post: "The City Council voted [Wednesday], 43-6, to override Mayor Bloomberg's veto of a bill that would make it illegal for gas stations to raise prices more than once a day." Christopher Tozzo (KipEsquire) does not conceal his scorn.

"Ark. jury rejects Prempro suit"

Linda Reeves blamed Wyeth's menopause hormone-replacement treatment for her breast cancer, but defense attorneys argued that she had a host of other risk factors. The suit was "the first of about 4,500 against Wyeth to go to court." (Associated Press/Dow Jones coverage). More: WSJ law blog post and followup.

The Headline versus the Text
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Seniors face greater risk of injury from prescription drug mistakes, new study finds. So reads a FindLaw headline. A normal reader might conclude that negligent doctors are writing off old folks, misprescribing medicines or doses.

A read of the article reveals something quite different. One quarter of elderly folks receive prescriptions from more than five doctors, and misinform each doctor of drugs the others have prescribed. An equal percentage (25%) of seniors fill their prescriptions at more than three pharmacies (the cost of "buying Canadian", perhaps?), thereby preventing effective cross-checking of prescriptions that may be incompatible with each other.

Who's to blame here, the health care provider (as the headline might suggest) or the patient? Or maybe the privacy laws that prevent providers and pharmacies from accessing personal information?

White-collar overtime suits

Now it's mortgage brokers. For earlier instances (stockbrokers, insurance agents, etc.) see various posts on our employment law page.

Texas med-mal rates continue plunge

Three years into Texas medical malpractice reform, doctors in the Lone Star State are benefiting from some of the steepest declines in insurance rates in recent history, according to the Physician Insurers Association of America (PIAA) -- 29.5% over the past four years. (PIAA press release, Austin Business Journal).

Meanwhile, the Magnolia State's biggest medical liability insurer, the Medical Assurance Company of Mississippi, has just cut its rates for the third straight time following that state's enactment of a significant package of reforms.

Kessler's extraterritorial tobacco ruling

Brooklyn lawprof Anthony Sebok observes, in regard to Judge Kessler's ruling in the federal tobacco suit:

From the industry's perspective, a further, and much more disturbing, potential result of the judge's order is that it will have to conform to her demands overseas....

Obviously, conduct performed in the United States that has an effect overseas can be enjoined by a federal judge. But what about an injunction that separately reaches domestic conduct, and identical conduct occurring overseas? ...various decisions, especially in the area of antitrust, have held that the power of Congress to control purely foreign conduct is quite limited.

Furthermore, there is a significant comity question. In many foreign countries, tobacco sales are controlled by the state. Questions about packaging, and especially the health statements on packaging, are often regulated by foreign governments. ...Can Judge Kessler tell the French subsidiary of Philip Morris that it must put an "onsert" in its packages that announces that the American tobacco companies lied in the past? Can she prohibit the use of the word "light" in a package printed and marketed in Turkey? Maybe, but I think it is unlikely.

The Wall Street Journal [subscription needed] relates yet a defeat for Richard Scruggs, who had attempted to consolidate thousands of homeowner suits against insurers, despite different policy language and different damage in each case.

Each homeowner can of course file suit himself, but it is likely that many marginally plausible suits will not be filed at all.

Picking jurors

Some litigators are beginning to let a computer do it for them.

Our national bard

He had the true American taste for argument, argument as distinguished from conversation on the one hand and oratory on the other. The long-drawn-out, meandering debate was, perhaps, the only art-form he understood or relished, and this was natural, since the argument is in a sense our only indigenous folk-art, and it is not the poet but the silver-tongued lawyer who is our national bard.

-- Mary McCarthy, The Company She Keeps (1942), via Atomic Librarian.

"Let's find a way to get these guys"

Forbes reports on legal battles over chicken farms in which opponents strain for pretty much any legal grounds available, whether related to pollution/nuisance or not, to shut down the operations. (Hey, sounds like NYC zoning battles.) And the magazine quotes Jim.

Catching up on a story that made headlines last month: in June of last year when duPont settled the state of Rhode Island's lead paint lawsuit rather than go to trial (OL 7/2/05), it agreed to furnish $12.5 million to charity, including $9 million to an outfit called Children's Health Forum. On closer scrutiny, the Children's Health Forum turns out to have extensive ties to the giant chemical company; per the AP, "It was founded by a lawyer hired by DuPont to work on lead poisoning issues; it received most of its funding from the Wilmington, Del.-based company and most of its board members have ties to DuPont." As for Rhode Island Attorney General Patrick Lynch, "The Associated Press reported in June that Lynch took campaign donations from people with ties to DuPont, including one from its chief negotiator while the deal was being discussed. Lynch says he did nothing wrong." Curiously, "Lynch and DuPont say the deal was not a legal settlement but simply an agreement." (Michelle R. Smith, "Nonprofit Set to Get $9M in DuPont Lead Paint Deal Has Close Ties to Company", AP/Law.com, Aug. 4).

Meanwhile, editorialists at the Wall Street Journal have suggested that an otherwise puzzling component of the charity pledge -- $2.5 million to Boston's Brigham & Women's Hospital -- might have been meant as a concealed boon for Motley Rice, the law firm which represented Rhode Island, and which had earlier pledged money to the hospital in association with its asbestos work ("Rhode Island Rhapsody" (editorial), Wall Street Journal, Aug. 16 (sub-only)). The editorial called forth a carefully worded letter from duPont which does not in fact contradict that theory (Aug. 23).

The Providence Journal (which it's nice to note is no longer behind a subscriber-only screen) covered the controversy here, and its deputy editorial page editor Edward Achorn penned a commentary on the Rhode Island Ethics Commission's decision not to open an investigation of AG Lynch. And Jane Genova covers the story here and here.

The hearing is going on right now; the Committee has a page of prepared testimony. Other Point of Law coverage on the Thompson memo.

Merck to employees: no more Vioxx voice-mails

Part of the game-show aspect of litigation is digging through every scrap of paper of a corporate party to find the document that can be taken out of context to fit within the opposing party's theory of the case. This is disruptive enough to business as it is, but as technology improves, the process of civil discovery becomes even more intrusive. A good example is the recent order of Judge Higbee to Merck ordering them to preserve and produce all voice-mails related to Vioxx—which means that if one employee leaves another employee a voice-mail message, and the second hits star-3 out of habit after listening to it, Merck could be held in contempt of court with potentially disastrous consequences in the litigation. Merck is thus forced to order its employees not to use voice-mail to discuss Vioxx (as well as engage in the huge cost of retrieving voice-mails so the plaintiffs' attorneys can engage in a fishing expedition in the attempt to attribute some low-level employee's off-hand remark to a wide-ranging conspiracy). Courts are hypothetically supposed to balance the benefits and the costs of discovery to prevent discovery from being too much of a burden, but with fifty-plus jurisdictions making discovery rulings, and such rulings being essentially unreviewable, a corporate defendant can expect to be forced to turn over everything eventually through tag-team judicial rulings; even if, say, the federal court wasn't inclined to order the production of voice-mail, once it's produced to New Jersey plaintiffs, the marginal cost of additional production no longer serves as a bar. (Peter Loftus, "Merck Tells Workers Not To Discuss Vioxx In Voicemails", Dow Jones/WSJ, Sep. 11 (also here)).

Separately, note the difficulty for providing a precise definition of the win-loss record: the statement "Merck has a 4-4 record in Vioxx trials that have reached a jury verdict and withstood post-trial motions" is false, because several verdicts have pending post-trial motions.

In case you haven't noticed the link already in the right column, our much-anticipated discussion between Profs. Gordon Smith and Stephen Bainbridge, on shareholder vs. director primacy, has been going great guns for a day now.

Texas AG apologizes for seizing x-rays

Latest in one of the subsidiary subplots of the silicosis saga, via Josh Gerstein at the NYSun: "In their eagerness to investigate what Judge Janis Jack of Corpus Christi described as widespread fraud in the silicosis litigation, attorneys working for the attorney general of Texas, Greg Abbott, used armed law enforcement officers to take the X-rays from a court-established depository in June. The state prosecutors said they acted pursuant to subpoenas signed by county judges, but the move angered Judge Jack, who said the action was unconstitutional and an affront to the jurisdiction of the federal courts."

"'Judicial hellhole' freezes over"(?)

I wouldn't quite agree with the headline—there are enough cases pending in Madison County that their judges can still do a lot of damage to the economy—but it is true that there are signs of reform happening in the most notorious of judicial hellholes, and that forum-shopping plaintiffs' attorneys are looking for different climes. (Shruti Dat� Singh, Crain's Chicago Business, Sep. 9). On the other hand, Texas attorney Mark Lanier, who surely knows where his bread is best buttered, just filed an asbestos suit against 44 defendants in Madison County on behalf of a man who worked most of his life in Massachusetts; and the Illinois appellate court overseeing Madison County just certified a nationwide class against Intel under a bizarre interpretation of California law. (Steve Gonzalez, "Northeasterner files asbestos suit in Madison County", Madison County Record, Sep. 7; Brian Brueggemann, "Intel seeks high-court review of class-action", Belleville News-Democrat, Sep. 9). Al Adomite has some interesting observations about upcoming judicial retention elections in the county.

Smith v. Merck

Robert Smith v. Merck, starting today, is the next federal Vioxx trial in New Orleans, a critical one for Merck, since this plaintiff (a 255-pound man with high blood pressure and atherosclerosis who continued taking Vioxx even after VIGOR warnings were added to the label) is a case they chose to schedule for now. Heather Won Tesoriero has the details; as does the Associated Press. POL coverage of Vioxx litigation, plaintiffs' attorney Mikal Watts, and defense attorney Phil Beck; the two previously clashed over Baycol.

"Activism Is in the Eye of the Ideologist"

A New York Times op-ed performs the following sleight-of-hand:

1) Note that conservatives complain about judicial activism.
2) Note a study that redefines "judicial activism" as "striking down federal laws," or "striking down previous precedents," though these are concepts orthogonal to judicial activism and to the judicial restraint that conservatives are talking about.
3) Note that judicial conservatives are more likely to commit this redefined "judicial activism" than judicial liberals.
4) Accuse conservatives of being hypocrites.

Don't buy the hype.

Update: Phil Wallach reminds me to tell you that this isn't the first time the Times and liberal academics have tried this tack.

CIA Officer Liability Insurance

From today’s Washington Post (reg req).

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

The article goes on to note that CIA officers are not sure how the Department of Justice will defend them in civil suits arising out of alleged prisoner mistreatment.  The President has asked for legislation that would grant officers immunity, but they are opposed by Democrats and "dissident" Republicans.

The insurance referred to in the article is priced at $300 for $200,000 in legal expenses and $1 million in liability coverage.  Just to provide a comparison, a $1 Million liability umbrella coverage from a large nationwide insurer has a price of about $100–150.  Thus, while seemingly inexpensive, this CIA liability coverage is not really “cheap insurance” as the insurer expects the risks to be greater than a typical person’s liability risk. 



Bill of attainder dept.

White Collar Crime Prof Blog: "In a criminal case, one would certainly expect that the rules cannot be changed after the fact. In the wake of the death of Ken Lay, however, the government has asked U.S. District Judge Sim Lake to hold off on deciding the motion of Lay's estate to abate his conviction and indictment while it seeks to have Congress adopt legislation to overturn the abatement doctrine that controls the case." The legislation would be retroactive, so that the change would take effect as of July 1, before Lay's death. Tom Kirkendall has more (via Cernovich).

"Accusations of 'double dipping' surface"

Roger Redditt's family has already collected from lawsuits blaming the smoker's death on asbestos, but his lawsuit alleging silicosis was the cause is about to proceed in Mississippi—with both ailments cursorily diagnosed by the now-discredited Ray Harron. The Houston Chronicle (following up on its June 8 two-parter) details plaintiff attorney Richard Laminack's double-dipping—including what appears to be an attempt of a cover-up. (Mike Tolson, Sep. 10).

Trover, replevin and detinue

Can they be used as Scrabble words?

Michigan vs. Pennsylvania docs

When it comes to the legal climate for physicians' practices, the two big industrial states are poles apart.

Gretchen Morgenson on mutual fund voting

Gretchen Morgenson savages mutual funds for supposedly conflicted voting. I show that Morgenson has ignored significant evidence of mutual fund voting in favor of a personal opinion based on a single questionable anecdote. I ask whether "this sort of incomplete, biased reporting belong(s) in the financial section of a major newspaper."

Dickie Scruggs is unhappy about that whole due-process thing that requires individual cases to be tried as individual cases. (Michael Kunzelman, "Judge: Katrina insurance suits must be separate", AP/Clarion-Ledger, Sep. 9). (h/t S.B.)

The New York City Human Rights Commission has extracted promises from nearly a dozen ad agencies to adopt quotasnumerical hiring goals and timetables to increase the representation of blacks in ad-industry jobs. Roger Clegg, at National Review Online, raises a few basic questions.

On the AEI Liability "Documents in the News" page, we have today posted a February 6, 2006, motion in limine from the Cona v. Merck case seeking to preclude Mark Lanier from using the same tactics he used in the Ernst litigation. Pages 4 through 6 provide a nice summary of how little Lanier's methods have to do with truth-finding.

Thompson memo

It's being criticized by a bipartisan group of eleven former senior Justice Department officials. Legal Times has more.

Nation Magazine Backs Tort Reform

Well, not really. But one of its contributing authors has penned a piece that decries the frivolity of the class action suit filed against Random House over its publication of James Frey's A Million Little Pieces.

Fans of Oprah's Book Club will recall the hero's welcome Frey received on her program, only to learn a few weeks later that online tattletale The Smoking Gun had debunked many of the book's more lurid (and interesting) passages.

I question The Nation's editorial policy on tort reform here.

Spitzer to Greenberg: "never mind"

Eliot Spitzer has abandoned nearly all of his notorious case against AIG's Hank Greenberg, further indicating the questionable nature of these charges. And, yes, Gretchen Morgenson shares the blame for this debacle. Here's the story.

And the Wall Street Journal has a devastating op-ed on the abuse of office Spitzer exhibited by going after him in the first place.

Latest errant-baseball case

In a "history-rich analysis", reports Thomas Scheffey in the Connecticut Law Tribune, a judge has ruled against Michael Teixeira, who was struck by an errant ball in a peculiarly painful location while attending one of the New Britain Rock Cats' home games. "[O]ne of the great lures of the game that still remains to bring spectators to the park, young and old alike, is the anticipation and hope that by the end of the game they will leave with a souvenir in the form of a ball that has come off the field of play," observed Judge Dan Shaban, and exposing ball clubs to greater liability would be likely to pressure them into erecting nets or other barriers to separate spectators from the action.

The internet and legal scholarship

The Yale Law Journal's Pocket Part has a new symposium on the subject.

Another view of Leonard v. Nationwide

Attorney Randy Maniloff points us to his analysis of Katrina insurance litigation in the September 12 Mealey's Litigation Report. Maniloff (who generously quotes us) notes that Judge Senter's analysis of anti-concurrent causation language contradicts that of the Mississippi state courts in Boteler v. State Farm Casualty Insurance Company, 876 So. 2d 1067 (Miss. Ct. App. 2004), and has more to say about Judge Senter's opinion in the Guice class action that was overshadowed by his Leonard decision. More on Leonard from me Aug. 24 (AEI) and Aug. 17; from Walter, Aug. 18 and Aug. 16 (as well as in the Wall Street Journal); and Martin, Aug. 17.

Think Tank Town

I have a short op-ed in Washingtonpost.com on the eat-one's-cake-and-have-it-too trend in civil litigation to attempt to undo contracts after the fact. (cross-posted at Overlawyered)

"Shlep: Self-Help Law Express"

David Giacalone, now on hiatus from his ethicalEsq legal ethics weblog, is launching a new web project aimed at providing "news & views on self-help law and pro se litigation". Stop by and check it out, especially since he's in search of co-editors to help with the project.

A Second Circuit panel has upheld District Court Judge John Gleeson's ruling that New York's insider-dominated method of picking judges violates the Constitution. (Albany Times-Union, New York Times). Henry Stern of NY Civic applauds, in the New York Sun.

Jury selection and the Enron verdicts

Brenda Sandburg of American Lawyer/Law.com goes inside the Lay/Skilling trials with the jury consultants who worked with both sides. "The consultants concur on one thing in particular: that early victories by the prosecution on jury issues were pivotal in getting a conviction. 'The venue and the jury selection were the only things that could have made the difference [for the defense],' [Reiko] Hasuike says. Dimitrius [Jo-Ellan Dimitrius, famed for her work on the O.J. Simpson defense] was key in helping the prosecution score wins on both points-getting Judge Simeon Lake III to keep the trial in Houston and making it easy for him to limit voir dire."

More on DOJ tobacco suit ruling

Michael Siegel, whose blog on tobacco policy issues really should be better known, has published a three-part discussion of Judge Kessler's ruling last month in the Department of Justice lawsuit against tobacco companies. Part Three notes that despite the endless, breathless media accounts about how a soft-on-business DOJ faction had supposedly taken a dive in the litigation by dropping demands for huge monetary damages, the ruling confirmed that appellate-court guidance had already ruled a gigantic-damages option off the table; the department was just acknowledging this reality, as good lawyers would.

"Judicial gullibility"

Professor David Faigman of the Science & Law Blog points us to the case of Sullivan v. Ford Motor Co., 2000 WL 343777 (S.D.N.Y.), where Judge Casey admitted the testimony of a plaintiff's expert under Daubert, explaining:

The fact that [the expert] did not know all of the precise details about the accident at issue in this case does not indicate that his expertise based on his experiences investigating approximately 15,000 road accidents, preparing approximately 10,000 reports based on these investigations, witnessing approximately 100 test crashes, authoring studies based on his observations, as well as his education in the area of physics, mechanical engineering and law, would not be helpful to the jury in determining this factual issue.

As Faigman notes,

Brief reflection on the expert's claimed experience suggests that it is somewhat incredible. To have investigated 15,000 accidents, he would have had to visit approximately two accident scenes every working day for 30 years. This leaves little time to write 10,000 accident reports.

CNBC "Morning Call" today

I'm scheduled to be a guest this morning at 11:45 Eastern Time on CNBC's "Morning Call", discussing the possibilities that employers will get sued over their employees' "BlackBerry addiction". I'll be arguing that such suits are unlikely to get anywhere if filed.

ACS Panel on Habeas

I'm not convinced it was the most edifying panel on habeas corpus ever, but if you prefer to watch me on video than read me on the subject, the American Constitution Society has streaming video of the June panel "Limiting the Great Writ: Restrictions on Habeas Corpus."

Blawg Review #73 at Workplace Prof Blog

In honor of Labor Day, this week's edition focuses on labor and employment law posts.

There's been a flurry of blog posts about the backdating so-called scandal. I analyze the assumptions that the backdating critics are making, and call for a more open-minded approach to the topic.

Australian wheat board sued

Per the Sydney Morning Herald, "US wheat farmers are seeking hundreds of millions of dollars in compensation from AWB as part of a class action accusing the wheat exporter of engaging in racketeering, money laundering, fraud and bribery. A Kansas wheat farmer, Veryl Switzer, 78, is the lead plaintiff in the lawsuit -- filed in Washington [in July] -- claims AWB's conduct in Iraq and other countries breached US laws and damaged the interests of up to 20,000 US farmers." Investigations have indicated that the AWB abused the U.N.'s oil-for-food program and funneled kickbacks to the Saddam Hussein regime -- reprehensible conduct, no doubt, but it should be interesting to watch lawyers make the case for pulling it into a U.S. court, under U.S. law, for purposes of securing damages for U.S. farmers who presumably weren't entitled to go after the Iraqi business themselves anyway.

Law Blog � The Escape Artists


Ben Stein on management buyouts

Ben Stein is filling in for Gretchen Morgenson this week in the NYT. His big idea is to ban management buyouts, completely. Among other jewels of wisdom, he compares them to racial segregation and housing discrimination. As Dave Barry would say, I'm not making this up. Here's more.

Loss-of-a-chance doctrine

It's spreading in state courts, with resulting heightening of the pressure on physician-defendants, reports Medical Economics (via Kevin Pho).

Chutzpah files: Madison County judge-shopping

Illinois, like some other states, allows parties to request a single change of judge as of right. That statute is questionable enough public policy as it is, but Madison County judges had interpreted the rule to permit class action plaintiffs to obtain automatic changes for each plaintiff in the case—thus effectively permitting a class action attorney to pick his judge. Madison County Chief Judge Ann Callis has changed the rule so that it limits substitution of judge to only one time as a right, and the Korein Tillery law firm is now challenging that rule's constitutionality, which could delay its implementation for a couple of years if they get the right judges to hear the case. (Steve Gonzalez, "'Judge shopping' rule challenged by Tillery firm", Madison County Record, Aug. 31; Brian Brueggeman, "Law firm set to challenge court ban on automatic judge change", Belleville News-Democrat, Sep. 1). (Cross-posted at Overlawyered.)

Comair crash solicitation

It's getting some Kentucky lawyers in trouble. More here.

The Enron Task Force's dirty little secret

A motion in an Enron-related criminal case exposes a dirty secret of the Enron Task Force that the mainstream media does not want to talk about.

No litigation tourism in Vioxx MDL

Via Won Tesoriero in the WSJ Law Blog, Judge Eldon Fallon has dismissed trial lawyers' attempts to bring class actions of French and Italian plaintiffs in the Vioxx cases.

Motley Rice and its 9/11 cases

September 11 litigation as an industry, courtesy of the asbestos/tobacco zillionaires from South Carolina:

While other lawyers have resolved most or all of their cases -- at least 32 of the roughly 90 total lawsuits have settled -- Motley Rice has settled only three. ...According to several lawyers and plaintiffs in the case, Motley Rice has made unusually high settlement demands, often 5 to 10 times higher than similar plane crash cases. The higher demands stem from Motley's calculations for what it calls "terror damages" -- compensation for the amount of time frightened victims knew they were fated to die -- of between $750,000 and $1 million a minute, according to those lawyers and clients, who requested that their names not be used because the settlement process is confidential.

The story deserves a place in the "Not About The Money" files because client after client informs the Boston Globe that their litigation stance is entirely unrelated to that disdained cash nexus; presumably it's just happenstance that they have wound up represented by lawyers who are making monetary recovery a very high priority indeed. Somehow one is reminded of the character in Flannery O'Connor: "Mrs. Hopewell had no bad qualities of her own but she was able to use other people's in such a constructive way that she never felt the lack." (via Lattman).

False-advertising laws were originally aimed at preventing the fraudulent misrepresentation of goods for sale, but now they're just another legal weapon for groups that would like to prevent businesses under attack from speaking out on their own behalf in public debate. Latest case in point: an anti-Wal-Mart group is petitioning the attorneys general of Arizona and Nebraska to outlaw television ads the giant retailer is running in those states which defend its role in the economy by citing a study which found that "Wal-Mart saves the average working family $2300 per year." The New York Sun covers the controversy in an editorial, and concludes:

In the marketplace of ideas, Wal-Mart has as much right to present its side of the story to the public as the unions do, and people can take or leave any "fact" they want. It would be a perversion of commercial speech laws, let alone the First Amendment, to abridge Wal-Mart's rights just because some unions don't like what the company is saying.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.