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March 2008 Archives

Speaking of Ground Zero dust lawsuits, I will be testifying tomorrow morning about H.R. 3543's proposal to reopen the September 11 Victim Compensation Fund to potentially hundreds of thousands of new claimants.

Is Death Different?

The great Judge Danny Boggs will be speaking at AEI April 7:

The imposition of the punishment of execution for certain heinous crimes has been a matter of intense controversy in the United States and especially in its legal system. Although the Supreme Court has upheld the constitutionality of the death penalty for over thirty years, battles over its application in particular cases and circumstances or to particular groups of persons has roiled our jurisprudence and strained our court systems over the same time. The phrase "death is different" has come to embody arguments over ways in which our law should or should not be altered or distorted in dealing with death penalty cases. Judge Danny J. Boggs will consider the state of U.S. jurisprudence on the death penalty, its application by the courts, and the extent to which the death penalty is--or should be--approached by courts in a way different from any other area of law.

NY Times on Ground Zero dust lawyer

In Sunday's Times reporter Anthony DePalma takes a much-needed look at attorney Paul Napoli and his Napoli Bern law firm, which is now representing thousands of plaintiffs claiming injury from 9/11 dust inhalation and before that made its name in the fen-phen litigation. Among the controversies that have trailed it to the present day from that affair: charges that it divvied up settlements in a way favorable to its own fee interests, and that it used unreliable "echo mill" expert reports from echocardiologists attesting injury to fen-phen claimants. Prof. Lester Brickman, friend of this site, is quoted extensively. See our extensive earlier coverage at Overlawyered: Dec. 16, 2002, Sept. 21, 2003, etc. (echo mills); Dec. 28, 2001, Feb. 14, 2005, and Mar. 29, 2007 (settlement practices); Feb. 25, 2008 (broad net cast in 9/11 suits).

When lawyers pay material witnesses

Things don't always work out happily, as David Rossmiller notes of Dickie Scruggs's Katrina informants, the Rigsby sisters.

Around the web, March 31

  • Recoupment litigation like Alaska's against Zyprexa is the equivalent of an unlegislated tax on health care sector, says Beck [LegalNewsLine]
  • Twenty-three Long Island school districts improperly kept private lawyers on the books as public employees, sometimes as fictitious full-timers [Newsday via Greenfield; earlier on OL]
  • State of Rhode Island files its brief, festooned with amici, in lead paint nuisance case appeal; state high court will stream live video of May 15 oral argument [ProJo, Genova, Pincince/RILJ]
  • Canada now has third-party litigation finance, as well as a mounting class action docket [ABA Journal, Financial Post]
  • Drug patent bailout bill might also be helpful to Ropes & Grey/Fish & Neave [T. Carney/Examiner and more]
  • New law blog at Slate includes Dellinger, Kerr, Lithwick, Kmiec, Bazelon, others ["Convictions"]

This time a panel of the Ninth Circuit ruled that an Idaho county did not have standing as an injured party to argue that four employers' hiring of illegals drove up the cost of providing public services. Earlier coverage here.

Subprime class actions

Kevin LaCroix at D&O Diary catalogues the spread of litigation, with new actions against Lehman, Wachovia, Schwab and TD Ameritrade.

Confront bankers' kids at the schools they attend, waving signs and screaming accusatory questions at them. Continue the harassment until mom's or dad's institution comes to the bargaining table and signs a lucrative mortgage deal with you. Repeat ad lib, until at length you are named 2007 "Bostonian of the Year" and get plenty of uncritical ink for your latest action against Bear Stearns and JP Morgan Chase.

Reuters: "U.S. capital markets again lost ground against global competitors last year, highlighting the need to streamline regulation and crack down on excessive securities litigation, industry experts said on Wednesday. The United States received only 6.9 percent of the funds raised in global initial public offerings in 2007 and did not participate in any of the top 20 global IPOs, Harvard Law School Professor Hal Scott said at the U.S. Chamber of Commerce's second annual capital markets conference. ...In comparison, in 2000, about half of the value of global IPOs was raised in the United States, according to Scott's committee."

Acme Insurance Regulation, Inc.

Florida's approach strikes David Rossmiller as Looney Tunes:

I've likened Florida lawmakers and regulators to Wile E. Coyote -- they persistently pursue failed strategies. Every time that Acme rocket backpack blows up or runs them headlong into a cliff, they strap on another. They also are somewhat like a guy who is denied a promotion and then comes home and beats the stuffing out of his dog. Everything about the state's insurance mess is someone else's fault -- they never pause to consider whether the central-command regulatory regime they love might be making things worse, or be one of the actual causes of the problem. Instead, they sound like some of the black helicopter conspiracy theorists, looking for evil everywhere. And when you are emotionally invested in finding wrongdoing, you keep at it, no matter how many times that rocket explodes and singes your fur.

State of legal academia dept.: a law student reader sends along the following email distributed at the University of California, Davis:

From: <...@ucdavis.edu>
Date: Jan 7, 2008 1:42 PM
Subject: Externship Opportunity with Santa Clara County Counsel's Office
[forwarded by a professor]

Externship Opportunities with the County Counsel of Santa Clara County

County Counsel of Santa Clara County is seeking externs to assist in the development of and implementation of affirmative litigation cases involving public interest issues. Although students may need to travel to San Jose occasionally, the bulk of the work can be done in Davis. Regular public interest externship credits will be available (1 unit for every 4 hours of work per week for the semester; minimum 2 units). Please contact [...] if you are interested.


This externship is designed to provide students with the opportunity to work directly with Santa Clara County public lawyers to promote the public interest through litigation and legislation. Students will assist the County Counsel's Affirmative Litigation Task Force in promoting the goals of the County and pursuing affirmative litigation and legislation designed to protect the County's residents and environment.

Students will have an integral role in identifying issues that impact the community, investigating potential sources of litigation and legislation, evaluating and discussing with experienced lawyers potential claims and remedies, conducting legal research, and preparing legal documents ( e.g., pleadings, motions, discovery, proposed legislation, etc.). Students will learn about the organization of County government and the role of the Office of the County Counsel in advising the Board of Supervisors and County agencies and departments on a wide variety of legal issues. Students will also learn how taking action at the local government level can impact decisions made at the state and federal government levels.

The externship objective is to provide students with real-world experience in pursuing social and environmental justice by taking affirmative steps through local and state governments and the courts.

Two examples of the affirmative litigation ideas the office has considered in the past at are:

SCOTUS labor/employment law cases

An April 4 Federalist luncheon event in D.C. will examine prospects for labor and employment law issues in the Supreme Court's current term [more info]

WLF Webcast on Lawyer Misconduct

Our friends at the Washington Legal Foundation will be hosting a live webcast at 10 a.m. tomorrow morning entitled "Uncivil Litigation: Trends in Lawyer Misconduct and How Courts are Responding." Participants include our own Michael Krauss and Veneble LLP's Damon Wright. The will be focusing on:

  • Underlying causes of apparent increase in litigation-related attorney misconduct.
  • Judicial authority to sanction attorney misconduct and motivations for judges' use of sanctions.
  • Recent examples of judicially-imposed sanctions in context of discovery and other aspects of litigation.
  • Lessons that can be learned and applied from recent judicial actions.

Tune in to watch it here.

Brendan Vaughan's student note in the Illinois Law Review explores some of the questionable rulings in the Katrina litigation, and cites this weblog twice.

Around the web, March 27

Lawyers behaving badly edition:

  • Chastened Milberg firm now belatedly seeking deal with feds; turns out Larry Milberg also took part in the criminal scheme but was saved by his 1989 death from public fate of other name partners [Fortune, ABA Journal; OL]
  • Weiss offenses were "exceptions" and include abuses that "just don't exist anymore" at other firms, claims Fordham lawprof Jill Fisch -- nothing to see here, you understand, just move along [NYP]
  • OK, so some Texas litigation boosters may dislike the local U.S. Chamber-backed watchdog publication, but destroying copies in bulk just isn't cricket [SETexasRecord]
  • If Scruggs, Weiss and Lerach were in some other industry than lawyering, wanna bet Congress would have started hearings by now on their patterns of abuse? [Friedman, National Underwriter, NYPost editorial, ShopFloor]
  • Opponents say "bizarre", "abusive" judicial rulings in favor of Scruggs in fee dispute made them suspect something was wrong even before scandal broke [Clarion-Ledger]
  • When lawyers put out word that their clients are innocent and being framed -- shortly before the guilty plea gets announced [Overlawyered]

Lilly, Alaska settle Zyprexa suit

The state had reportedly been demanding $200 million but will settle for $15 million. Note that coverage in places like the NYT and AP characterize the suit as being over money spent by the state on alleged side effects; as readers of this site (and Beck & Herrmann) know, there were some other reasons the dollar figures under dispute got so big.

In today's New York Times, Adam Liptak writes about how European courts find the American concept of civil punitive damages "offensive" to justice, but suggests the tide is slowly turning, at least for smaller awards.

When state AGs attack

O'Melveny & Myers's Brian Anderson and Amber Taylor, in Legal Times. Summary: "As traditional class actions become a less reliable tactic for attacking business interests, a new one has emerged. Instead of finding a class to represent, plaintiffs lawyers are representing some state attorneys general in cases brought on behalf of the states and their citizens. The resulting lawsuit can pose a new and dangerous threat to defendants. But such lawsuits also have unique vulnerabilities."

A new paper (leads to PDF) for the Federalist Society's Engage by David B. Rivkin, Darin R. Bartram, and Lee A. Casey, all Washington attorneys. Summary:

Although Congress failed to pass climate change legislation in 2007, the year was nevertheless highly significant for climate change litigation. Many courts are increasingly willing to interpret existing statutes (particularly the Clean Air Act and the National Environmental Policy Act) to require federal agencies to address some aspect of global warming. At the same time, they generally have proven far more reluctant to frame judicial climate change relief under federal or state common law nuisance theories. Such claims have largely been dismissed on standing or justiciability grounds.

Nevertheless, a pattern is clearly emerging in which states and private groups that are impatient with federal efforts to deal with global climate change on the international level seek to force U.S. domestic action either directly under existing statutory schemes (or through new state laws) or indirectly by targeting the industries they believe should be the subject of regulation in this area. At this point, it is by no means safe to assume that these efforts will be found by the courts to be preempted by federal law.

Cardozo conference on class actions

This Friday, in New York City, Cardozo Law is hosting a conference entitled "Justice and the Role of Class Actions" with an announced focus on "the historic value of class actions, their contemporary application, as well as the threats and opportunities facing the class action system today and in the future." Its sponsors are the liberal American Constitution Society and Public Justice (formerly Trial Lawyers for Public Justice), but the program commendably includes a variety of points of view, including John Beisner, Richard Nagareda, Deborah Hensler, Elizabeth Cabraser, Victor Schwartz, and Geoffrey Miller, among many others.

New Zealand's universal no-fault

Praised by a highly placed Colorado legislator, health committee chair Sen. Bob Hagedorn (D). More on the New Zealand system here, here, and generally here.

Once a familiar expression, the "curate's egg" meant an egg that would not be rejected because it was good (unspoiled) in parts -- curates being perhaps seen as desperate enough to accept such a thing. The phrase also describes many lawsuits, which are not meritless in their entirety but include some meritless elements. According to the Civil Justice Association of California, section 128.5 of the state's Code of Civil Procedure currently allows judges to impose sanctions only if an entire lawsuit is without merit -- and since many of the suits in question are curates' eggs, good in part, targets are left with no effective remedy for their (perhaps predominant) baseless elements. Hence the introduction of Assembly Bill 1891 (Niello), which allows judges more latitude to impose sanctions for partially baseless actions. Cal Law's Legal Pad gives the measure little chance in the Democratic-dominated Assembly -- and yet, according to a legislative calendar, it is getting a hearing today.

The Legal Intelligencer reports that a Philadelphia judge has held that if Pfizer illegally promoted Neurontin for off-label uses (readers of POL know that "off-label" (non-approved by FDA) use of prescription drugs is both common and indeed life-saving -- but manufacturers may not promote such use), they must reimburse members of a plaintiffs' class who purchased gabapentin, the generic form of Neurontin, made by manufacturers other than Pfizer. An interesting decision, and also an additional stretch of causation here, a bit as if Ford encouraged "needless" purchase of its vehicles and is liable to reimburse Joe, who bought a Chrysler...

I have this essay in the March 21 WLF Legal Backgrounder, responding in part to POL blogger Marie Gryphon's earlier City Journal piece:

Poker players learn to read the cards of the other players at the table by their actions. Betting patterns and other "tells" can permit a good poker player to understand the strength of his opponents' cards without ever seeing them. There have been only a handful of Vioxx trials, but the announced settlement of the Vioxx litigation provides strong tells as to the weakness of the plaintiffs' claims--and of the weaknesses of current pharmaceutical product liability law.

Michael Barone on Milberg Weiss's political donations (via ShopFloor). More in an Examiner editorial: "It is impossible not to wonder what else might have been false in the Milberg Weiss cases. ... Doesn't anybody in Congress wonder?"

"False Claims Act Corrections Act"

Briefly alluded to last month in this space, S. 2041, sponsored by Grassley and Leahy, would substantially expand the federal qui tam bounty-hunting statute to encourage more suits by purported whistleblowers. Some analysis: Powell Goldstein PDF, CCH, Overcriminalized, Anne S. Kimbol (U. of Houston, PDF).

Around the web, March 24

All-medical edition:

  • East End Long Island gynecologist says she spends $50/hr. on insurance -- "And I don't do obstetrics" [East Hampton Star via KevinMD]
  • Certain defenders of Hawaii med-mal law trying to get away with some big ol' fibs about the California and Texas experience [KHNL]
  • ""You APOLOGIZED? Don't you know that's effectively an admission of guilt?" [SecretWave101]
  • Defense verdict in John Ritter case [Overlawyered, more, more]
  • Colorado bill to raise med-mal caps runs into snag [Denver Post & editorial]
  • $25 million award against W.V. hospital for ending a doc's privileges -- but they'll have no trouble paying, right? [OL]
  • MedPundit, frequently cited in this space, retired from blogging at 2007's end;
  • Radiation risks from excessive CT scans [Ted @ OL]
  • Patients who cry wolf -- better run to their aid time after time or else [White Coat Rants]

Superior Scruggs gossip

...about old but not forgotten Mississippi asbestos-fee-dispute cases, at Folo (& YallPolitics).

Alaska's Zyprexa folly

The state of Alaska has just gone to trial in its suit against Lilly over alleged mispromotion of the psychiatric drug Zyprexa. Beck and Herrmann:

The State of Alaska is seeking civil penalties from Lilly under the Unfair Trade Practice Consumer Protection Act of at least $1000 for every time a physician in Alaska prescribed Zyprexa.

You read that correctly: The remedy is seemingly unrelated to why the physician prescribed the drug and whether or not the patient's condition improved. No causation; no injury; no nothing. It's at least a thousand bucks (and perhaps as much as $25,000) per script times hundreds of thousands of alleged violations....

And that's aside, they say, from whether the suit ignores the provision in Alaska's UTP statute that exempts from its coverage regulated transactions, which the labeling of a drug surely is.

Do ankles exist?

A legal debate over that question rages in Texas between medical doctors and podiatrists.

Mini-blinds maxi-suit

Attorney Jeffrey Lowe is pursuing a class action in Madison County, Ill. alleging that the popular decorative accents are unsafe and that refunds are owed to consumers for, oh, say, a billion or so of them that have been sold in past years. [MC Record, more]

Another big win for wage-and-hour class action lawyers: in a terse four-paragraph ruling, the judge said it violated California law for the coffee chain to let shift supervisors share in the customer tip pool. Starbucks spokeswoman Valerie O'Neil said "despite Starbucks request, the interests of the shift supervisors were not represented in litigation". More: The Recorder, San Diego Union-Tribune.

According to an article noted by the WSJ law blog, eight of ten top British law firms are now accepting outside investors' money to finance litigation, a practice punishable at common law as champerty until recent rules changes. The WSJ law blog talks to American legal ethics profs Monroe Freedman (Hofstra) and Deborah Rhode (Stanford), both of whom predictably applaud the development and hope it sets an example for the U.S. A contrasting piece of advice would be one I've heard attributed to Chesterton: don't tear down a fence until you're sure you understand why it was erected in the first place.

Melvyn Weiss guilty plea

I'm covering the breaking story at Overlawyered.

Jeff Rosen's Times Magazine piece quoted David Vladeck to that effect, but Eugene Volokh finds that Vladeck's recollections seem to be faulty.

Following up on the story noted here and here: "Royal Caribbean Cruise Lines is suing attorney Jay Wingate to recover about $1 million in attorney fees, alleging his firm used misrepresentation to settle 23 worker-injury cases with the cruise line. ... Former Royal Caribbean claims supervisor Wanda Ballestas acknowledged in an affidavit that she accepted a series of $500 payments for the company's confidential settlement projections and a $2,000 Christmas bonus. She admitted passing information on 20 plaintiffs to Wingate paralegal Maria Elena Parilla and investigator Nelson Ayala." Wingate, who's announced that he is withdrawing from the cases and going into semi-retirement, is also unrelatedly being sued by the widow of a deceased attorney whose cruise-litigation practice he took over. [South Florida Daily Business Review]

The Supreme Court decision on New York judge-picking, previously discussed here, here, and here, is now the subject of a Federalist podcast featuring Matt McGill of Gibson, Dunn & Crutcher.

A new white paper from the American Tort Reform Association catalogues some of the ways the organized plaintiff's bar has been going on the offensive to expand litigation, particularly at the state level. ("Defrocking Tort Deform", PDF).

Enron prosecution

Did it withhold exculpatory evidence from the defense?

Notes Carter Wood at NAM "Shop Floor": "The self-immolation by Gov. Eliot Spitzer may actually hurt the cause of tort reform in New York, at least with respect to medical malpractice. Spitzer, whose brother is a neurosurgeon, created a task force last year to recommend changes to state law to help rein in malpractice insurance premium increases (14 percent last year)."

Bear Stearns thoughts

  • With the share price of Bear Stearns dropping in Enronesque fashion from $170 to $2, less than the value of its skyscraper headquarters, John Carney and others ask: how could the net value of Bear Stearns's business be negative? One of the reasons shareholders are getting so little is because of the billions of dollars of litigation reserves JP Morgan has built into the valuation. (Josh Gerstein, "Amid Bear Stearns Rubble, Lawyers Swoop In", NY Sun, May 18) Ironically, the shareholder litigation, which will generate hundreds of millions of dollars of litigation expense even aside from any settlements in a suit that may well allege billions of dollars in damages, almost certainly has hurt the shareholder recovery. JP Morgan is paying $2 now, and will pay shareholders more later, but the lawyers will take a large commission for the transaction.
  • Larry Ribstein sensibly asks: "Is there potential [Sarbanes-Oxley] internal controls liability for Bear executives? If not, and melt-downs like this can happen after SOX (worth $80+/share one day, $2 the next), then what was it, exactly, that SOX did for us? Could it be that SOX didn't eliminate risk after all? ... So two possible lessons from Bear: We didn't need SOX, and it didn't do any good." More on Sarbanes-Oxley from Ribstein (and AEI).

S.B. 1202 in Sacramento, "authored by Senator Tom Harman (R-Huntington Beach), would allow judges to withhold part of the plaintiff's attorney's fees in class action lawsuits until all class members have been contacted and have received their portion of the settlement funds." Harman explains himself in this op-ed, saying class-action attorneys "routinely fail to identify and locate class members" in part because neither they nor defendants nor others involved in the case have any particular incentive to find those members.

Judges in Alameda County have been applying this practice [of holding a portion of fees in reserve] recently, and it seems to be working well. More class members than usual are being found and receiving their fair share of the settlement. The temporary delay in payment of attorney's fees presents only a modest hardship for the attorneys, particularly given the fact most awards of attorney's fees in class action cases tend to be quite large. The size of the attorney's fees for class action suits is such that waiting on a small portion to be paid at a future date is not that unbearable.

Paper on SSRN from Gideon Parchomovsky (Penn) and Alex Stein (Cardozo):

This Essay identifies an anti-innovation bias in the law of torts. Tort law's reliance on custom in ascribing liability for negligence, medical malpractice and defective products taxes innovators and subsidizes replicators of conventional technologies. The Essay analyzes the causes and consequences of this bias and proposes two alternative ways to remedy it.

Update: paper published in Michigan Law Review here.

Around the web, March 17

  • A pro-business Supreme Court? Jeff Rosen's article quotes Ted ("Frank's prediction was soon vindicated"), draws reaction from Gordon Smith and Larry Ribstein [NYTM] Plus: Volokhii as well; earlier from Hans Bader here and here.
  • Contributor Jim Copland on the Supreme Court's pre-emption cases [Washington Post]
  • Eager listeners hang on words of junior Illinois senator as if hearing them for the first time [Ferguson/Weekly Standard]
  • Lenders nervously eye class action against Chevy Chase Bank as potential floodgate-opener [Washington Post]
  • Most lawyers portrayed on television "have some redeeming trait" [The Recorder on ABA panel discussion]
  • Reaud, Morgan & Quinn partner: duPont's "conduct [on asbestos] was so bad that its right to exist should be taken away," [SE Texas Record]
  • Anne Reed visits Japan, where a quasi-jury (or lay-judge) system is being introduced for serious criminal cases [Deliberations, and again]

"In Texas, lawyers are limited in the manner and time in which they can contact victims of accidents. However, chiropractors are not." And so arose the scheme by which, according to allegations in a suit filed by Allstate, "chiropractors purchase lists of auto accident victims, and then use telemarketers or other marketing schemes to contact the victims and convince them to seek treatment, which Allstate contends is often unnecessary. Once the victims are in the offices, the victims are put in touch with attorneys, even potentially having agents for the attorneys in the chiropractors' offices to sign the victims up. " (Perlmutter & Schuelke, Mar. 10).

Via Roberts and Black, Vanderbilt's Amanda Rose has an interesting working paper on SSRN arguing for an intermediate reform of Rule 10b-5 by requiring private class actions to have the imprimatur of the SEC.

Interesting, but, in my mind, ultimately unpersuasive. First, the best arguments Rose makes in support of her proposal are even better arguments for abolishing (or, at least, permitting publicly-traded corporations to have shareholder votes to amend by-laws to opt out from) private 10b-5 actions, the natural conclusion of her analysis, which she shies away from on the grounds that it is "politically infeasible." Second, adding an additional bureaucratic layer to the 10b-5 process would only reduce social costs if the SEC exercises its veto power frequently: if the SEC rubber-stamps the vast majority of class actions, all that will be accomplished is adding an expensive layer of litigation, perhaps more if the SEC's decision is reviewable. Third, the SEC will be diverting resources away from public enforcement to oversight of private enforcement. Fourth, and perhaps most importantly, it is hard to imagine that the SEC would be an efficient gatekeeper: giving the SEC veto power over the billions of dollars earned by the powerful lobby of the securities plaintiffs' bar would only serve to politicize the SEC further. Witness the Congressional pressure (coordinated in large part by Bill Lerach and the trial bar) put on the SEC to intervene on the wrong side in Stoneridge, and multiply that by every class action filed in a given year when the SEC is a mandatory, rather than occasional, intervenor. Such politicization may compromise the SEC's role in other regulatory activity moreso than it already is.

"Where is Dr. Carl?"

The Independent Urologist reflects on a family of Long Island ob/gyns gradually being driven out of business by the liability climate -- aside from the one member who moved his practice to Maine and saw his med-mal insurance drop by 66%. Related: doctors rallied Mar. 4 in Albany; Newsday editorial; more from the IU.

Litigation lobby tries to undo Riegel

Voter fraud

Per Sheila Scheuerman at TortsProf, the "Georgia Supreme Court on Monday upheld the expert witness section (Section 7) of Georgia's 2005 tort reform law." The constitutional attack on the law had focused on its holding of expert evidence in civil litigation to a more demanding standard than that in criminal proceedings. If the real point were to address the disadvantage such an anomaly might pose to criminal defendants -- as opposed to just reaching for a convenient argument in hopes of derailing the civil reform law -- wouldn't the better course would have been to challenge the criminal-side admissibility rules as unconstitutionally lax?

David Owsiany of the Buckeye Institute praises recent trends at the Ohio Supreme Court, not least its willingness to acknowledge that just maybe elected legislators might have a role to play in laying out the bounds of liability law. Related: Kurtis A. Tunnell, Anne Marie Sferra, Miranda Creviston Motter for Washington Legal Foundation, PDF; Genova.

Scruggs enters guilty plea

I'm blogging the breaking developments at Overlawyered, as is David Rossmiller at his blog.

Around the web, March 14

All-employment-law edition:

  • Wage-and-hour suits keep perking away: 75,000 Wal-Mart employees in Washington state [Post-Intelligencer]; $100 million demanded for tip-sharing Starbucks baristas [The Recorder]; Canada has it too as in huge overtime suit against Bank of Nova Scotia [CP/AsianCanadian.net]
  • California managers heave sigh of relief as state high court, 4-3, spares them personal exposure in retaliation claims [The Recorder]
  • Speaking of retaliation, before departing Gov. Spitzer passes into private life, spare a moment to recall one interestingly aggressive legal position he took as AG: that employees' walking off job to march in immigration-amnesty demonstrations was protected activity immune from employer discipline [Malkin]
  • Local governments across England obliged to "remortgage their town halls and raid reserves" to meet sweeping L2.8 billion retroactive comparable-worth order [Guardian]
  • EEOC "acutely disappointed" by court decision last fall curbing its quest for punitives in "pattern and practice" sex harassment charges [ChiTrib/TradingMarkets.com]
  • No age discrimination charge was ever more credible ["Speed Bump" cartoon]

The other day Ted instanced one example of how rigorous standards for admission of expert evidence often help plaintiffs, who are given a better shot at fighting studies proffered by the defense that they see as dubious. Here's another instance, this time from New Jersey, in which plaintiffs in a low-speed auto collision sought to exclude the defense's introduction of studies finding no chronic health conditions to result from soft-tissue injury in controlled accidents. In this case an appeals court ordered the tests thrown out as lacking in scientific reliability, but the New Jersey Supreme Court reversed, ruling that it was not an abuse of discretion for the trial judge to have admitted them in a case which eventuated in a low jury verdict.

Medical monitoring in West Virginia

It's more familiar to most watchers of the legal system as a demand in litigation than as an actual result of it, but sometimes it does actually happen. Some residents of Spelter, W.Va., though, say they would rather have gotten lump sums of money than the checkups that a judge has ordered duPont to set aside $130 million to cover.

"Radioactive in this environment"

Major law firms will probably have to wait through one or two half-life cycles of scandal decay, at least, before they would be willing to offer the governor a job. But what about his close pal and adviser Lloyd Constantine's firm, Constantine Cannon? As those involved in the great credit-card issuance antitrust case could undoubtedly vouch, that firm's probably got the resources to make him a suitable offer.

The Mann Act, perhaps, is fairly described as "little-enforced", but, says criminal defense lawyer Scott Greenfield, "the hard fact is that the government regularly prosecutes 'little people' for money laundering violations. It happens all the time." More at Overlawyered here and here.

How they got that job, cont'd

"Arkansas Attorney General Dustin McDaniel cited experience as the main reason for hiring Houston-based Bailey Perrin Bailey (BPB) to sue three Big Pharma companies." It had absolutely nothing to do with the major political donations BPB founding partner Don Bailey has made in Arkansas and elsewhere, including large sums to the Democratic Attorneys General Association (DAGA), of which he has been one of the most generous supporters. Related here (Oklahoma and chicken).

Spitzer exit negotiations

Who's holding them up unreasonably? Probably not the prosecutors' side, thinks Beldar.

C'mon, lawyers, blog

David Rossmiller says it might free you from the writing style found in legal briefs and memoranda, a style "seemingly designed to intimidate, harass, mystify and anger the reader at every possible turn".

Meat safety scare

The Times's Joe Nocera casts a skeptical eye and concludes that the president of the Humane Society of the United States is "playing Russian roulette with the truth".

Reparations demands for looted art

Against... the Swedes?

Spitzer scandal, around the web

  • I've got a piece in this morning's National Review Online on some of the ironies of the Spitzer scandal, which recalls echoes of the former prosecutor's own "imperial CEO" rhetoric and may hinge on a crime -- the "structuring" of cash transactions -- whose enactment was very much part of the trend toward more ferocious white-collar law enforcement that you might call Spitzerization.
  • New: Jim Copland, also of this site, is in NRO too this morning: "Spitzer was never a white knight". More thoughts: Eric Scheie, John Podhoretz, WSJ editorial & links, Kirkendall, Ribstein, Bainbridge.
  • Also in NRO, of interest: John Derbyshire on why Spitzer wouldn't be likely to clean up the mess in Albany even if given another twenty years to try; and Stephen Spruiell on the governor's record of policy follies, including his distinctively awful litigation against gun manufacturers.
  • Daniel Gross at Slate also pursues the hoist-by-his-own-petard theme on white-collar prosecution (and catches an angle or two I missed). Related: Kerr @ Volokh, WLS @ Patterico, Mark Steyn ("Almost every white-collar federal offense - wire fraud, mail fraud - boils down to 'paying for the train ticket'.").
  • The Washington Post reported that Republicans in Albany "said that if the governor tries to keep his job, they will probably question whether his state police bodyguards, who provide him 24-hour protection, were complicit in his actions, and whether state money or facilities were used. 'I can't see him getting through this,' said state Sen. Martin J. Golden (R), a former police officer. 'Interstate transportation for sexual purposes is a federal crime. . . . We all think now he's negotiating a plea.'"
  • The New York Times puckishly recalls Spitzer's vow to end "pay-for-play politics" and noted that "friends of Richard A. Grasso, the former chairman of the New York Stock Exchange and a favorite Spitzer pinata, recalled that Spitzer aides had circulated allegations, never substantiated, that Mr. Grasso had had an improper relationship with his secretary." John Carney has a saltier version at DealBreaker (as well as a laughworthy parody).

Customer No. 9, or the fall of Spitzer?

If you asked me how Eliot Spitzer's career was going to end, a Mann Act indictment would not have been in my top hundred guesses. [NY Times; WNBC; CNN/AP; Smoking Gun] Even if guilty, it still wouldn't rank among the ten worst things he's ever done.

Employment at will in Colorado

Bad idea alert: Labor unions and other backers are pushing a ballot measure that would overturn common-law employment at will in the state, replacing it with employer liability for dismissals not backed by what a court accepts as "just cause" (via CCJL).

Around the web, March 10

  • Our own Michael Krauss quoted in article on protective orders and pharmacy litigation [USA Today]
  • Australia's Slater & Gordon, billed as world's first publicly owned law firm, has used its infusion of IPO funds to finance "eye-popping expansion" [ABA Journal]
  • Campaign in press to overturn Feres doctrine's protection of military docs against malpractice suits [CBS News via KevinMD]
  • Peter Angelos and banks battle in Maryland legislature over prepayment penalty lawsuits [Washington Post]
  • Who gets the planes? Bitter dispute among heirs of the late James Beasley Sr., dean of Philadelphia injury bar [Legal Intelligencer]
  • Too much coverage in Mississippi press of Scruggs scandal? If anything there should be more [Senatobia Democrat]

Oklahoma's Big Chicken case

The Chamber-backed LegalNewsLine explores how the lawyers working for Oklahoma Attorney General Drew Edmondson got that job. Earlier here, here, and here.

Funny how that works

In New York, a medical malpractice insurance crisis has resulted in skyrocketing insurance rates, $50,000 surcharges, and calls for legal reform even from the Democratic governor and legislature. The Center for Justice & Democracy complains, claiming there's nothing wrong with the legal system, and it's all the fault of the insurance companies because they kept reserves too low by charging too little. (James T. Madore, "Spitzer to unveil plan to lower malpractice costs", Newsday, Mar. 5; George Wallace, "Malpractice Crisis Looms For Area MDs", Suffolk Life, Feb. 20).

This is ironic, given CJD's frequent allegations that insurance companies gouge doctors by keeping too high a reserve—an argument being made by trial lawyers in Colorado seeking to promote a bill raising medical malpractice damages caps in that state. (Bob Mook, "Lawmakers dissect COPIC", Denver Business Journal, Mar. 7 via Robinette).

WSJ on Grace asbestos strategy

The paper enthusiastically backs the company's unprecedented effort to get a bankruptcy judge to declare most of the claims against it nonmeritorious. Some background here and here.

RICO in labor-management disputes

As Jeffrey Hirsch notes at Workplace Law Blog, lawsuits invoking the racketeering statute are flying in both directions between management and unions these days, and not primarily arising from the sorts of abuses familiar to Mob historians as the "labor rackets", either. Aren't suits demanding triple damages a great way of healing the social antagonisms of the workplace?

Calpers as sovereign wealth fund

The California public employee pension fund "is just as political in its investment decisions as any Arab emirate," to quote the WSJ's summary of an op-ed by Benn Steil of the Council on Foreign Relations. And while it likes to portray itself as a leading advocate of improved corporate governance, the shareholder initiatives Calpers advances often have more to do with the interests of its union constituents than with those of other shareholders.

IRBs and hospital checklists

Orac has a thorough review of recent developments in the furor over how a highly promising effort to monitor the effectiveness of safety checklists in hospitals was denounced and halted as a violation of IRB (Institutional Review Board) regulations on the protection of human subjects in research. Earlier coverage here.

The AP reports that since the 1990s, the height of concern over the issue, "carpal tunnel cases have plummeted, declining 21 percent in 2006 alone, according to the Bureau of Labor Statistics. Among workers in professional and business services, the number of carpal tunnel syndrome cases fell by half between 2005 and 2006." Researchers are concluding that while repetitive stress injury, to use another catch-phrase, is indeed a serious job hazard for some workers who engage in physically demanding tasks like meat-cutting, mattress-flipping, and so forth, it was greatly overdiagnosed or misdiagnosed as a malady afflicting computer keyboard users. (Ergonomic improvements such as wrist rests for mouse pads have undoubtedly helped, but are unlikely to explain the whole drop, especially since time devoted to keyboarding among the population seems to be rising steadily.) "A 2001 study by the Mayo Clinic found heavy computer users (up to seven hours a day) had the same rate of carpal tunnel as the general population. Harvard University headlined a 2005 press release 'Computer use deleted as carpal tunnel syndrome cause.'"

The AP account is worth reading in full, but it entirely omits one of the explanatory variables that might be salient. At one point, RSI-carpal tunnel-cumulative trauma was seen as one of the more promising product liability mass torts, with lawyers around the country filing thousands of claims; the favored targets were deep-pocket equipment makers such as IBM and Apple. The suits gathered steam and moved forward for several years but suffered a crushing setback when a federal appeals court in 1993 reversed an order consolidating many such cases (In re Repetitive Stress Injury Litigation, 11 F.3d 368 (2d Cir. 1993)). When pursued individually most of the cases fared poorly, and the prospect of a "bet your company" mass verdict was no longer there to serve as leverage to get defendants to the settlement table. The result was a rout for plaintiffs and an unusually thorough win for defendants: RSI-carpal tunnel litigation has subsided and is no longer seen as a threat to the financial health of computer makers, and most lawyers have given up on it.

But what if the Second Circuit had acted differently in 1993 and allowed the mass cases to move forward as a consolidation? What if rather than risk a "bet your company" trial, defendants had one by one begun signing up for a settlement fund to compensate sufferers? What if -- after the lawyers and experts took their billions -- billions were left over for persons who could produce a doctor's note attesting that after they used computers their joints ached in certain ways? Is there really any doubt that the number of newly reported cases would today be far higher, and perhaps would not have declined at all? Is there any doubt that a large body of opinion would now angrily reject the reassuring Mayo and Harvard findings, on the grounds that -- to quote a phrase heard in both the silicone-implant and autism-vaccine episodes -- "We are the evidence."

Some, of course, will draw from all this the conclusion that carpal tunnel is just as real and frequent an ailment as ever but is now being seriously underdiagnosed because workers are ever more discouraged from even so much as reporting it, knowing there will be no remedy. Others will conclude that our legally driven compensation system is quite good at calling forth subjective or hard-to-disprove claims of injury, and that we owe the Second Circuit thanks for a narrow escape, not only from a gigantic and spurious episode of mass tort litigation, but indeed from a whole spurious public health epidemic that would otherwise be raging on to the present.

P.S. Welcome visitors from Carter Wood's NAM Shop Floor blog, here and here.

On insurance regulation, at least, suggests David Rossmiller.

P.S. That doesn't necessarily go to cover former state AGs, though.

Tort reform is often accused of slanting the field against plaintiffs when, in fact, many reforms are facially neutral and simply improve the accuracy of the justice system—which should only concern plaintiffs to the extent they wish for the justice system to be inaccurate. While the organized plaintiffs' bar is fighting hard against Daubert-style standards that act as a gatekeeper for scientifically unsound evidence, others recognize that it could require defendants to meet sound science standards. The Wall Street Journal covers one set of cases involving the "Fake Bad Scale," a 43-question true-false exam that purports to measure the likelihood that a plaintiff claiming injury is malingering. A Florida judge ruled that the test failed to meet expert evidentiary standards and excluded its use in a trial over injuries stemming from a 2004 trucking accident. (The psychologist who created the test, Paul Lees-Haley, stands by its validity, and there does seem to be at least some peer-reviewed literature supporting him. Lees-Haley argues that plaintiffs fake injury far more often than one would think.)

Offer of settlement in Colorado

Done right, "offer of settlement" rules can curtail wasteful litigation by providing for a fee shift when parties spurn a bona fide settlement offer and then do less well at trial. There are all sorts of variations on the idea, however, and the Colorado Civil Justice League contends that the details of the proposed HB 1020 in that state make it worse than none at all (follow links to PDF).

Retroactive lead-paint liability

A bad idea we posted about in 2006 still hasn't gone away: some Maryland legislators would like to impose liability on paint makers by statute after the fact, provoking a critical editorial in the Baltimore Examiner.

Employment at will is supposed to work in both directions, and yet...: "A lawyer who advised 10 nurses that they were free to quit their jobs at a Long Island nursing facility now faces 13 criminal charges as a result of the nurses' walkout -- a prosecution his supporters say could have a chilling effect on attorneys who represent workers in labor disputes." A Suffolk County grand jury indicted Felix Vinluan along with the ten Filipino nurses even though state investigations found that the nurses' mass resignation had not wound up harming their vulnerable patients, whose shifts were covered. Commentary: Nicole Black, Scott Greenfield, Lamplighter.

Easterbrook on contracts of adhesion

As Marie Reilly notes at Red Lion Reports, the contents of his opinion in IFC Credit Corp. v. United Business & Industrial Federal Credit Union are "scintillating". Ted excerpts some highlights at our other site here.

Silver's pick for judicial panel

Can you guess who Assembly Speaker Sheldon Silver has picked as a member of a state panel that screens appellate and other judges? The New York Post's Kenneth Lovett reported the other day that it's none other than Arthur Luxenberg, name partner of the giant personal-injury firm Weitz & Luxenberg, at which Silver has been "of counsel" since 2002. ("He and the firm have repeatedly refused to reveal who his clients are or how much he is paid, although sources have said it could be in the seven figures.") Critics of the move include not only Post editorialists (more) but even a spokesman for the New York Public Interest Research Group -- and it's a pretty safe bet that trial lawyers have gone too far when even NYPIRG criticizes them.

There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.

Malpractice litigation does change doctors' incentives, but only with respect to short-term results. Because doctors won't be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.

Around the web, March 4

  • Riegel v. Medtronic reactions: "Michigan's innovative drug shield law turns out to be ahead of the curve, now that the U.S. Supreme Court has signed on to the concept." [Detroit News editorial]; "There are reasons to cheer" [Washington Post editorial]
  • Anti-protective-order bill proposed in Congress by Wis. Senator Kohl would mount scary assault on business privacy [CJAC]
  • West Virginia mulls creating chancery courts, which exist in several other states [WV Record]
  • In novel strategy, W.R. Grace wants bankruptcy judge to declare many of the asbestos cases against it invalid [Washington Post]
  • Long Island ob/gyns and neurosurgeons squirm at their high insurance rates (respectively $177,000 and $275,000 a year)] [Newsday]
  • That $501 million stent patent verdict against Boston Scientific? Yes, now that you mention it, it was in Marshall, Texas [AP/Law.com]
  • New blog about juries [called, yes, Juries; Anne Reed recommends]

Well, that sure worked out well

Warner-Lambert v. Kent affirmed

In a surprise, an equally divided court affirmed 4-4 without releasing an opinion (Roberts was recused, effectively giving the respondents a fifth vote); the question remains whether Breyer, Scalia, or Thomas was that fourth vote. Earlier: Feb. 2008; Sep. 2007. The decision is non-precedential, so the circuit split between the Second and Sixth Circuits on how to apply Buckman remains. Is Buckman really so easily avoided by clever pleading? Apparently at least four justices think so.

Update: Beck and Herrmann comment.

Reading other people's mail

A peek behind the scenes at how sausage is made in the State Farm Katrina negotiations (PDF). Asks David Rossmiller: "How come this stuff never winds up in a Grisham book?"

Allison Engine podcast

Not only does the Federalist Society have a new podcast of Ted on the Exxon oral argument, it's also got a new podcast featuring Marcia Madsen of Mayer Brown on Allison Engine, the False Claims Act case discussed earlier here. P.S. Tony Mauro/Legal Times and AP/WSJ have accounts of the Allison oral argument, held the other day.

Damages for persistent emotional distress and depression even though it turns out you never contracted the deadly virus? Sure, what have New York hospitals (and those who pay their bills) got to lose? "People enduring an anxiety-filled waiting period to find out if they have contracted the AIDS virus will no longer be limited to receiving damages for only six months of emotional distress," per a ruling of New York's highest court, the Court of Appeals, earlier this month. The NYLJ has more.

Merck just sent out a press release stating that 93% of the 47,000 registered plaintiffs have enrolled in the settlement. It is unclear (a) what happened to the 13,000 plaintiffs who sued or signed tolling agreements, but did not register, and (b) whether all four of the 85% thresholds for various subgroups of plaintiffs were met, though Merck expresses confidence that they will be. It is also unclear how many of those 93% enrolled involve attorneys who have adhered to the all-or-none provisions of the settlement, or whether there have been attempts at evading that requirement that may knock some people out of the settlement. There would still be at least 3000 claims pending against Merck, though Merck has indicated that it will permit late filers to join the settlement if they had claims pending November 9.

Enrolled plaintiffs have until March 31 to submit evidence (medical, prescription, and payroll records) documenting their claims.

Guestblogger thanks

Our thanks again to Hans Bader for his guestblogging last week. Don't forget to check out his regular posts at the Competitive Enterprise Institute's Open Market. And if you think you might be interested in joining us for a guest week of your own -- whether you're an existing blogger or not -- let me know at editor - [at] - thisdomainname.com.

Are humans less interesting?

Over at my other site, I've had occasion to note the boom in courses in animal law in legal academia, fueled by generous grants from a foundation established by TV game show host Bob Barker. Doug Berman at Sentencing Law and Policy notes a website's tally that the number of law schools offering a course on animal law now tops 100, which he says far exceeds the number offering a course on general sentencing, even though the latter is a core concern of the legal system which profoundly affects millions of people caught up in it. His perhaps slightly bitter conclusion:

I suppose it is a sad and telling commentary that many law schools have devoted more resources toward having students question the legal treatment of animals than the legal treatment of criminal offenders. Perhaps advocates for sentencing and corrections reform need to find some incarcerated people with sad puppy-dog eyes so that humans locked in cages will evoke as much sympathy in elite law schools as animals locked in cages.

P.S. Yes, I'm aware that most of the humans under discussion have been found to have done something legally wrong, while most of the animals haven't. And no, I'm not comfortable with the idea that law schools should establish courses or clinics out of a desire to provide advocacy for either group, as distinct from a desire to impart skills and understanding to the students. But I think Berman has quite a good point about how the attraction of "frontier" and faddish areas of the law can distract attention from the way the legal system performs its core functions, especially in areas like sentencing where there is reason to doubt that it is currently performing those functions very well.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.