Results matching “lead paint”

For Motley Rice, chicken every Sunday - PointOfLaw Forum

Assisting Oklahoma Attorney General Drew Edmondson in his legal battle over pollution runoff damage against Tyson Foods and seven other poultry companies with operations in Arkansas (see this post from last year) is none other than the S.C.-based law firm of Motley Rice, of tobacco, asbestos and lead paint fame, to name only the highlights. The Arkansas Democrat-Gazette in February profiled the firm, which Edmondson has cut in for a finger-lickin' one-third contingency share of the state's recovery. The percentage formula appears a little bit touchy as an issue: "Edmondson said he was disturbed in 2003 when attorneys received $7.3 million of a $7.5 million settlement in the city of Tulsa's lawsuit against Arkansas poultry companies and the city of Decatur over pollution in the Eucha-Spavinaw watershed." Attorney General Mike Beebe of Arkansas has suggested that Edmondson's use of Motley Rice will make it harder to resolve the conflict between the two states: "as long as it's monetary, it's much more difficult for farmers, the people in Arkansas and us to solve the environmental concerns. The more the South Carolina law firm is involved, the more difficult it is for us as a state, the more it's about the money and the less it's about the environment."

More on Edmondson here, here and here.

Update: AEI's AG Watch has more on the story, including links to national news coverage.

RI lead paint verdict - PointOfLaw Forum

The defendant companies last week moved to overturn it in a 208-page filing which can be found here (PDF).

Maryland lead-paint legislation - PointOfLaw Forum

In their campaign against companies that once made lead paint, trial lawyers have adapted a tactic used earlier in the tobacco and gun campaigns, namely to push for legislation making it retroactively easier to bring liability claims against manufacturers. Such legislation was floated a few years ago, unsuccessfully, in Massachusetts; this year the campaign has made a particular target of Maryland, a state notorious (with Florida and Vermont) for having in the 1990s passed retroactive liability-expanding bills to strengthen the hand of state AGs suing the tobacco industry.

There is, however, good news to report: the Judiciary Committee of the Maryland House of Delegates has voted thumbs down on H.B. 1392, a bill that would establish backward-looking "market-share liability" so as to make it easier to extract dollars from FDR-era paint makers. Still pending is a companion bill, H.B. 1441 HB 1447, that would open up "public nuisance" theories of the sort that recently proved successful at trial in Rhode Island. Jane Genova has details on both bills (and also some kind words for my work, for which thanks)(& thanks to David Thomasson for correcting the bill number).

The Tobacco Wars - PointOfLaw Forum

After RJR and Lorillard set aside $756 million in disputed tobacco settlement claims on Monday (as Michael Krauss noted yesterday), the long negotiations between the industry and state attorneys general to resolve the payment issue 'fizzled', according to Nancy Zuckerbrod of the Associated Press. Connecticut attorney general Richard Blumenthal is not happy: "We're continuing to review our options, but certainly a lawsuit looks likely this week." It looks like another round of tobbaco lawsuits are headed our way (I wonder if Blumenthal et al. will farm out their work to private firms, as the Rhode Island AG did in the lead paint suit), even without Philip Morris's participation in witholding.

Lawyer Lead-ership - PointOfLaw Forum

Early this morning, Walter pointed readers to Philip K. Howard's article "Making Civil Justice Sane" in the new edition of the Manhattan Institute's City Journal. Readers may also be interested in my brief Soundings column in this issue, "Lawyer Lead-ership," which covers the recent Rhode Island decision against the paint companies alleged to have caused a "public nuisance." More information about the lead paint cases is available here at Point of Law and at Overlawyered.

Lead Paint Fights Back - PointOfLaw Forum

The much-beleaguered lead paint industry is fighting back. According to the AP�s Eric Tucker, industry attorney John Tarantino went to court on Monday to prevent Rhode Island�where in a now-notorious decision the industry was found liable for creating a public nuisance�from paying a large contingency fee to two private firms the AG�s office hired to conduct the lawsuit. Tarantino argues that it�s unconstitutional for lawyers representing a government to have a financial interest in the outcome of the case. Fidelma Fitzpatrick, of Motley Rice, one of the firms contracted, predictably disagrees.

Rhode Island lead paint - PointOfLaw Forum

The New York Times has the first detailed (albeit not detailed enough) inside look at the Rhode Island public-nuisance suit against paint manufacturers that stopped selling lead paint thirty years ago. Most states have rejected expansive public-nuisance theories that override all the limits of product-liability law, but the Rhode Island precedent could become a dangerous problem to the American economy in the future. The defendants are also challenging the practice of contracting out state lawsuits to contingency-fee attorneys. One new detail: DuPont's $12.5 million settlement provides no money to the plaintiffs' attorneys. (Julie Creswell, "The Nuisance That May Cost Billions", New York Times, Apr. 2).

Sykes rebukes Wisconsin high court - PointOfLaw Forum

Judge Diane Sykes of the Seventh Circuit, who for five years herself sat as a member of the Wisconsin Supreme Court, gave a Hallows Lecture at Marquette March 7 (PDF) rebuking that court for its recent and unprincipled lurch into pro-plaintiff activism. In particular, Sykes analyzes -- and finds wanting -- the court's decision to strike down legislated limits on medical malpractice awards (in the process, inventing a completely novel mutation of the "rational basis" test) and its embrace of market-share liability in suits against lead-paint manufacturers, a theory that no other state has seen fit to adopt (via Althouse).

Lead paint follies - PointOfLaw Forum

Coming soon to New Jersey, if Motley Rice has its way. More here, here, etc.

No punitives in R.I. lead paint case - PointOfLaw Forum

But the "nuisance" theory by itself, if upheld, could cost the defendant companies hundreds of millions or even billions of dollars, per AP. Warren Meyer at Coyote Blog says last week's jury verdict may prove to be "one of the worst and most destructive jury verdicts of the decade". During its long deadlocked period, the jury had reportedly been leaning 4-2 in favor of the defense (Jane Genova). The WSJ's Monday editorial is subscriber-only, but here are a few snippets:

"The fact that the conduct that caused the nuisance is lawful does not preclude liability," Judge Silverstein said....

[Motley Rice] marketed its lead-paint strategy to the state government, which agreed to pay the trial lawyers 16 2/3% of whatever settlement is reached....

There is also the not-so-little matter of public policy, and who has the authority to make decisions about the 300,000 or so buildings in Rhode Island that contain lead paint. Judge Silverstein's abatement orders are likely to be in direct conflict with the guidelines set down by the U.S. Centers for Disease Control, the Department of Housing and Urban Development, the Environmental Protection Agency and the state Health Department....

In the wake of the Rhode Island verdict, the Boston Globe reports that the Massachusetts and Connecticut attorneys general are considering copycat lawsuits. Similar cases in New Jersey and Wisconsin [on behalf of cities, not states] are already moving toward trial.

More coverage: Feb. 17, OL Feb. 23, etc.

And more: Jane Genova interviews the jury foreman who says he and his colleagues were swayed on the nuisance issue by the judge's instructions, as well as by the tender age of the youngsters exposed to old paint deposits. Of the expert witnesses called by the plaintiffs' side, the medical experts, who "seemed to be concerned with the children's welfare", made a better impression than the two historians, Professors Markowitz and Rosner, who "seemed to have a vendetta against the paint companies".

Jury deliberating in RI lead paint retrial - PointOfLaw Forum

A verdict or other culminating event in the much-watched retrial could come at any moment, according to Jane Genova, who's been liveblogging the proceedings. According to Genova:

* the jury wanted to declare itself hung, but has been talked into continuing;

* the public nuisance count seems to be what the jurors can't agree on;

* jurors asked the judge to clarify the concept of "unreasonable interference with the right common to the general public", part of the public nuisance definition.

More: Nov. 7, etc.

Wisconsin politics - PointOfLaw Forum

A W$J editorial says prospective opponents of Gov. Jim Doyle are going to make sure the liability issue stays on the front burner in his re-election bid:

Scott Walker, the Milwaukee County Executive, put tort reform into a hundred-day plan he announced within days of the Governor's vetoes.

Congressman Mark Green, who is also running for the Republican nomination, was equally emphatic. "People in Wisconsin are blue-collar conservatives. They don't believe in the lawsuit lottery. They want to see our manufacturing economy grow. The lead paint decision could spell disaster for Wisconsin." Both candidates noted that the lead paint decision has potential ramifications for anyone who makes things. Its impact is not likely to be limited to the paint industry.

Wisconsin liability trip - PointOfLaw Forum

The Litigation Lobby's big victories recently in America's Dairyland are the subject of a WSJ/OpinionJournal op-ed. On the Wisconsin Supreme Court's by-now-notorious lead paint ruling, Maureen Martin of the Heartland Institute writes:

as if it could get any worse, nothing in the ruling limits the "risk contribution" theory to lead pigment. It could, arguably, apply to any product. So it was no surprise when a Chicago plaintiffs' firm recently filed a case against 13 Wisconsin companies alleging that a client died from asbestos exposure, but not necessarily from asbestos manufactured by any of the 13 named defendants.

Wisconsin governor vetoes more reforms - PointOfLaw Forum

Governor Jim Doyle vetoed four civil justice reform proposals, including measures overturning the Wisconsin Supreme Court's politicized lead-paint decision (Nov. 23, Aug. 11, OL Jul. 23), a measure moving Wisconsin's lenient expert-evidence standards to Daubert, immunity for firearms manufacturers, and a product-liability reform bill. (Ben Fischer, "Governor vetoes bills on liability", Wisconsin State Journal, Jan. 6) (via Bashman). The governor had earlier vetoed medical malpractice reform. More on Wisconsin: Jan. 4 and links therein.

Why Flatter The Trial Lawyers? - PointOfLaw Featured Discussion


I trust you enjoyed your Thanksgiving break, as did I. I think we have made considerable progress in this exchange. My first goal in this final post is to wind down our discussion of medical malpractice reform, where I think we have many sentiments in common. My second goal is to respond to your impressions of the trial bar generally, and to your specific concerns about pharmaceutical litigation. With respect to these issues, I think you surface several interesting and important issues, but to me they remain unsettled. I hope you will not interpret my uncertainty, and occasionally my skepticism, regarding the latter issues as vitiating our points of agreement on the former.

Let�s start with medical malpractice. I think we have very substantial agreement on many points. If major differences remain, I attribute them (as you have in prior posts) to our different perspectives. I think of litigation as a very tiny piece of the health care system, and I�m interested not only in improving medical litigation but also (more) in influencing in positive ways the great majority of health care transactions that never give rise to litigation. So I�ll always be trying to connect goals of tort liability � injury prevention, compensation, justice � to procedures that don/t depend on actual litigation, and that in fact are much closer to the process of delivering health care than to the process of resolving disputes in court. For example, I�m generally in favor of ADR, but I�m more enthusiastic about early disclosure of error and mediated discussions that are essentially an extension of giving good medical care (see the report by Carol Liebman and Chris Hyman on the Pew project website, than I am about pre-trial mediation or formal arbitration. Similarly, I think it embarrassing to physicians, as well as counterproductive to speedy, low-cost dispute resolution that the way many patients find out the details of possible medical errors is by consulting a lawyer, who in the course of declining the representation does a little investigation and explains to the patient what happened and why. Lawyers shouldn�t be doing physicians� jobs. I also care a lot about defensive medicine, and other consequences for health care of how physicians perceive the liability system. And I very much want to find a way to compensate � using the term broadly to encompass information, restoration of trust, and future prevention as well as monetary payment � a much larger percentage of patients who experience undesired outcomes of medical care than litigation offers.

I�m delighted, for example, that you are also concerned about the ill effects of delay after medical injuries occur. And I would love to join forces with you on getting the employer community involved in testing better alternatives to malpractice litigation. Regarding my personal interest in having Medicare sponsor a pilot program, I agree that political concerns are important. However, it is easy to document that seniors currently are very, very poorly served by the tort system, which might well bring AARP on board. Moreover, I would welcome serious engagement by AARP and other powerful health care constituencies; as I noted in my first contribution to our discussion, I think that the principal political barrier to constructive malpractice reform has been that litigation politics, not health care politics, has controlled the debate. How costly a better system for Medicare patients would be is a legitimate concern; one reason to do demonstration projects is to find out.

Let me turn now to your comments that don�t relate to medical malpractice. Your distinction between business and profession no doubt reflects real concerns about trial lawyering, but I think it raises more questions than it answers. A first question is the compatibility between the attributes of professions that you and I both value and the social benefits of competition for professional services that you and I value as well. Ron Gilson wrote years ago that market power is probably a precondition to professionalism, and your ambivalence about advertising, joint venturing, and other competitive behaviors when engaged in by lawyers supports his insight. Competitively insulated lawyers occupying �elite� roles probably will exhibit fewer unseemly behaviors. Noblesse oblige. At the end of the day, then, I suspect that the best society can do with respect to law or medicine is to police serious abuses of market power and create incentives for professionals to further the expressed interests of their patients or clients, but otherwise encourage the exercise of professional authority and judgment. I do, however, think that professionals should have public obligations in exchange for these privileges. In other words, I do not view professionalism as compatible with a pure individual advocacy model. As I�ll come back to later, I think these public obligations � which I usually call �regulatory duties� � need to be enforced directly rather than piggybacking them on the �relational duties� owed by individual to individual (a distinction I apply beyond the professional context).

In malpractice litigation, for example, a lot of problems both real and perceived reflect the number of �amateurs� representing plaintiffs. Malpractice cases are complex, protracted, and consequently difficult and expensive to litigate. In a contingent fee system, experienced plaintiffs� lawyers seldom accept even winnable malpractice cases with potential damages under $100,000 ($200,000 in some states). Experienced lawyers routinely reject cases that are meritless, or even speculative. However, there are so many lawyers in the U.S. who represent individuals in personal injury cases that, even if most take on a malpractice claim only very occasionally, inexperienced lawyers account for a substantial percentage of malpractice litigation in the aggregate. (And, of course, many negligent injuries that have serious financial implications for patients and their families go both lawyerless and uncompensated.) Certificates of merit, screening panels, and other requirements designed to reduce frivolous litigation assume the inexperienced lawyer; experienced lawyers police their own cases quite effectively, even without a loser-pays system. Applied across the board, however, screening panels in particular can be cumbersome and cost-ineffective. As you know, I�d like most medical errors to be prevented, and the ones that occur to be compensated outside of the courts. But in general I would also support reforms that got the amateurs out of the medical malpractice business � they tend to take bad cases and handle them badly. By contrast, the �name� plaintiff lawyers who handle malpractice cases exclusively, or nearly so, usually impress me with their case selection as well as their ability to generate ample settlements for their clients. Perhaps careful attention to competitive conditions in litigation markets would cause specialization to emerge as an efficient outcome, and I�d be happy to consider reforms that might tend in that direction. But it is also possible that, in order to preserve professionalism, a regulated oligopoly of malpractice plaintiff�s lawyers is preferable to a free market.

On the other hand, I�m afraid I don�t understand your assertion about lawyers uniquely having the power to take property from parties without their consent. I don�t think this is an economically or politically coherent �monopoly.� One could equally say that lawyers are empowered to reclaim property on behalf of those who have had it taken from them without their consent. Such is the adversarial system, and only the neutral arbiter can decide which party is entitled to take or reclaim. What you call �redistribution through force,� others might regard as �justice through law.� Depending on the context, there could be some truth to each perspective. Plus there are many lawyers who help create wealth, even if some wealth creation eventually devolves into redistribution through litigation. And though I agree that litigation is an extremely inefficient form of redistribution, I doubt that even the most successful class action lawyer would regard litigation as a principal form of redistribution in society. So we�re left, as we should be, assessing each practice area separately for its costs and benefits, rather than condemning the litigation enterprise en masse.

It is also difficult to buy into your generalization about the victimization of defendants. Although struggling family physicians and rural hospitals are often the public face of tort reform, most defendants in the cases you complain about are large corporations. I agree that courts� tendency to add zeros indiscriminately to damage awards involving corporate defendants is problematic. Like you, I was dismayed by the Vioxx award. And I take account of the issue in my own proposals for enterprise liability in malpractice cases; decoupling medical negligence from a sympathetic individual physician defendant and assigning it to a faceless commercial entity creates real risks of excessive compensatory and undeserved punitive damages. For that reason, the malpractice working group of the Clinton health reform task force proposed capping damages if universal health coverage were accomplished through competition among accountable managed care plans bearing enterprise liability.

But the rhetoric of forcible taking simply doesn�t suit this category of defendant. It is rare as hen�s teeth for contingent fee or class action lawyers to victimize the poor defendant; there�s no financial reward for doing so. The most attractive defendants are the richest ones, who are far from powerless against the supposed monopoly of force that you ascribe to plaintiff�s lawyers, and who engage to an even greater degree in over-the-top marketing. I actually think Merck behaved quite well with respect to Vioxx considering the financial importance of the drug to the company. But it can hardly be called a passive victim. For every ad currently warning of the dangers of Vioxx and marketing legal services, there were dozens of ads by Merck touting the drug�s supposed benefits before it was withdrawn from the market. Sure, Bayer wasn�t sued, but Bayer didn�t lead consumers to believe that aspirin was better than existing drugs when it really wasn�t, and Bayer didn�t price aspirin for the lucrative, patent-protected, health-insurance paid, prescription-dependent market. This doesn�t absolve the trial bar of its own excesses. Nor does it excuse courts who get the science wrong: much as I think that the Supreme Court�s decision in Aetna v. Davila was a missed opportunity to clarify ERISA preemption, there�s a delicious irony to dismissing a large-dollar claim brought by a patient who alleged he was wrongfully denied Vioxx at the same time that millions of other patients have lawyers alleging they were wrongfully given Vioxx. However, it does make it seem absurd to single out the plaintiff�s bar for its political and financial muscle.

That said, I think a market analysis of personal injury litigation is well worth doing. Your twist on the �who is the consumer� question so central to health insurance is clever: considering defendants the �buyers� because they end up paying the bills through contingent fees. I agree that solves the problem of looking for an authentic consumer of class-action litigation, but overall I�m skeptical that it is the first direction in which one should take the competition policy of litigation. In many ways, contingent fee litigation (and certainly hourly fee litigation) is an easier market to analyze than medicine because there are clear financial gains to trade in most circumstances, so that willingness to pay for legal services equals ability to pay. In medicine, a lot of services are needed or desired by people without the means to pay, even through insurance mechanisms, so the issues of social subsidy are more important (and the idea of paying for successful performance not self-enforcing). There are certainly many areas of litigation that don�t come with a financial payoff and therefore that require public support, but not personal injury lawyering � though I�ll readily admit that we overly depend on financial payoffs in malpractice litigation to attract lawyers even when clients would prefer information, apology, and other non-monetary redress for their grievances.

I prefer more grounded inquiries regarding markets for legal services. For example, I take very seriously the point Lester Brickman makes about lack of competition for contingent fees, so that fees do not increase with risk of failure. I�m also very interested in referral patterns. One of the big issues in Pennsylvania during the current malpractice crisis was venue reform, with health care providers desiring to keep cases in their local communities rather than having them transferred to plaintiff-friendly Philadelphia. There are unanswered normative and factual questions here. Are Philadelphia juries too friendly to patients, or are other parts of Pennsylvania too friendly to physicians? Is it unfair to send a case to Philadelphia just because the suburban hospital where the doctor practiced was affiliated with an urban academic medical center, or was the prestige of that affiliation one reason why the patient sought care from the suburban physician and hospital in the first place? But these issues aside, the success of any particular venue reform in public policy terms depends in part on the law and norms governing lawyer referrals, including the point I raise above regarding the general desirability of having malpractice cases handled by specialists. And I�m fascinated by your insight that lawyers collectively profit from wins, making the competition to gather clients the only meaningful competitive issue. I suspect there are many industries where competitors want each other to succeed in opening up new markets, but you certainly raise questions worth examining in specific practice areas regarding imperfections in the market to attract clients, in the price of legal services, in entry barriers, etc.

Your discussion of federalism and repeated bites of the litigation apple raises a related second question: who should supervise lawyers? One difference between law and medicine is that the judicial branch of government claims a near-exclusive right to regulate the former, while the latter � when not allowed to regulate itself � is subject to a broader set of legislative, administrative, and judicial constraints. Both systems are susceptible to capture, but you are probably right that lawyers� groups find it easier to capture elected judges in some states than doctors find it to capture their overseers. There are also other limitations and confusions that likely arise from the more insular regulatory framework applied to lawyers. Take your concerns about deceptive marketing, for example. Attempts to rein in lawyers typically come from the judiciary and therefore constitute state action subject to the First Amendment (but immune from antitrust enforcement). Attempts to rein in doctors typically come from private professional associations, which by contrast are subject to antitrust review but not to the First Amendment. I think the latter approach is more effective at policing the abuses that worry you (not to mention the risk that courts will confuse the two standards, as Tim Muris believes has occurred to the detriment of consumer protection). On the whole, then, I am relieved rather than concerned if both doctors and lawyers come to think of themselves as participating in regulated industries as well as ethical professions (e.g., when Congress or the SEC imposes public obligations on securities lawyers).

A third question is the relationship between litigation and legislation/regulation. I think there needs to be a relationship rather than an either-or choice, and I�m encouraged when you allow for the possibility of private redress � however circumscribed both substantively and procedurally � as part of public regulatory systems. As I�ll get to shortly, for example, I think drug product liability should be integrated with (but not merely preempted by) federal regulation. The broader issue for me, however, is as follows. I believe that many of the excesses of personal injury litigation � and, yes, I do believe there are excesses � arise because general �regulatory� obligations to society as a whole become entwined in the courtroom with specific �relational� obligations of defendant to plaintiff, with the unhappy result of applying causal standards and awarding damage amounts that try to encapsulate aggregate, impersonal interests using the emotional, personal context of an individual grievance. Strongly relational duties such as those between health care providers and patients are particularly susceptible to this conflation. For example, �conflicts of interest� are used incoherently in the regulation of medical research because societal interests in innovation, public confidence in medicine, and avoidance of unnecessary harm map poorly onto a the popular image of a �researcher-subject relationship� that is drawn from longstanding beliefs about doctors and patients. But the conflation of relational and regulatory duties also happens whenever an aggregate economic harm can be portrayed in relational terms, often as fraud or misappropriation (e.g., fraud-on-the-market, insider trading, fraudulent conveyancing, fraudulent concealment, unfair business practices). The punitive damages debate is a core example of how the legal system can be blind to these effects because it communicates so poorly with other regulatory systems. Cathy Sharkey�s article describing punitive damages as �societal compensatory damages� is such an important contribution because it states the obvious in a way that allows many people to see it for the first time.

One can think about class-action lawyering and individual client lawyering in these terms, though to do so one has to acknowledge that lawyers who pursue these careers tend to have very different modal beliefs and incentives. Let�s leave lucre aside, and stipulate that all these lawyers want to do well financially. In my experience, lawyers for individual clients see themselves as the last bastion of defense against the predations of either overreaching corporations or overreaching government. Your objections seem to go only to the former commitment, but in terms of the latter some plaintiff�s lawyers have quite principled objections to the sort of administrative compensation system that I would like to see replace malpractice litigation in the majority of situations. They express these in quasi-libertarian terms as discomfort with �social engineering� and a preference for helping individual clients vindicate infringement of their basic liberties in the insulated courtroom setting where nothing (supposedly) matters other than the single plaintiff and the single defendant. Class action lawyers, in my experience, are a totally different breed: �legal wholesalers� who lose interest in cases as soon as the need to explore individual situations in any detail becomes evident. As you relate, many class action lawyers see themselves as clientless policy entrepreneurs. The tobacco litigation is a perfect case in point: as several commentators have observed, the global tobacco settlement was a large, undemocratic tax on smokers that class action lawyers were paid a fortune to impose because elected officials didn�t want to.

Similar analyses can be made of the managed care and non-profit hospital class action litigation. I agree with you that the claims were a stretch legally, and that both the administrative costs and the potential damages were disproportionate to the public benefits. But the public policy problems were quite real. In the managed care litigation, the court was asked to decide what consumers should be told about their health care in a seemingly new, more competitive health care system. As Clark Havighurst has written, if these cases had been litigated to conclusion the courts would have been put in the ironic position of crafting aggregate information disclosure principles after decades of individual litigation in which those same courts resisted the idea that patients could ever make informed health care purchasing decisions. In the nonprofit hospital cases, it is quite true that people without insurance are charged much higher �list prices� than patients who have private insurers on their side to negotiate discounts. When I was a medical student, I noted that it �cost� much more to be seen at the public pediatric clinic in San Jose, California than in a plush private office in nearby Saratoga � nearly all patients at the public hospital had Medicaid, making the list price irrelevant, and the hospital was not about to miss out on overcharging an occasional paying patient who stumbled in. But failure to pay these higher rates has real consequences for patients in terms of their credit ratings, budgeting decisions, and self-esteem. In both cases, then, one can view class action litigation as a misguided attempt to do what the regulators wouldn�t. Some class action lawyers display amazing hubris when they publicly claim to be more effective than Congress in bringing powerful industries to heel, but one has to admit, however regretfully, that they occasionally have a point.

Turning to pharmaceutical litigation, we have many points of agreement: that the Vioxx judgment was absurd, that good drugs like Bendectin shouldn�t be forced off the market, that vaccines are not sufficiently profitable to cover potential liability without tort immunity and an alternative compensation arrangement. I�m more skeptical about the assertion that liability in general is crippling pharmaceutical innovation; these are successful companies that make terrific products and have every expectation of continuing to do so. They also have sophisticated ways to protect themselves: Dow Corning, I seem to recall, was a limited purpose joint venture that was driven into bankruptcy by breast implant litigation, but its structure assured that its much larger corporate parents would be spared. One more illustration of the fact that one could teach virtually every graduate program just using the pharmaceutical industry: medicine, business, law, most natural and social sciences, philosophy, even perhaps divinity.

It is rather hard to view the FDA as currently providing a comprehensive regulatory scheme because its political evolution has been piecemeal. It evolved over roughly 100 years � not smoothly but in leaps following scandals � from a disclosure statute to a screening process for safety to a screening process for efficacy. Interesting factoid: the pre-1938 FDA wasn�t empowered to stop the sale of sulfanilamide �elixir� because it was killing people, and could do so only because it was misbranded (an elixir means dissolved in alcohol; the manufacturer was using poisonous diethylene glycol instead). But the FDA has virtually no authority over physicians, and therefore can do next to nothing about �off-label� use. Nor does the FDA have authority to withhold approval for drugs that work no better than existing drugs, or drugs that are incredibly expensive for the benefit they offer. And post-marketing surveillance remains mediocre. How, then, can one rely on FDA to safeguard consumers and patients from all the serious risks involved in taking new drugs?

Of the points you make about pharmaceuticals, I�m most interested in the role of FDA regulation in adjudication of injury claims. I think preemption is the wrong path. Instead, I would very much like to see FDA�s expert determinations being used constructively in litigation to supplement adversarial testimony, and I would like to see evidence from drug product liability cases being used by FDA to assist its post-marketing surveillance efforts. For example, one could envision an administrative process within FDA being used to adjudicate personal injury claims and provide limited compensation. I was glad to see you express interest in an administrative adjudicatory scheme of some sort. I haven�t thought this through in the same detail as my malpractice proposals, but Cathie Struve recently published an article in Yale Law School�s health policy journal outlining a constructive relationship between civil procedure and administrative processes in pharmaceutical regulation. The key point is simply that one can improve the relationship between litigation and regulation rather than choosing one over the other.

I would be happy to discuss your specific FDA proposal with you at another time; I don�t think general readers would get much out of our debating the details in this forum. We would likely agree on many things, but disagree on a few based either on our making different policy choices or our having different predictions of the incentives created by a particular approach. For example, your argument that malpractice is more naturally governed by tort than product liability because �doctors are negligent all the time� is interesting, but my reaction is that doctors� negligence is defined by a professional standard that they set, while drug manufacturers have no such professional underpinnings. Do you mean to suggest that preemption of tort claims should depend on whether an industry is largely self-regulating (tort allowed) or largely regulated externally (tort disallowed)? That strikes me as the wrong line to draw, if lines can be drawn at all. Similarly, when you imply that healthy people should have an easier time than sick people asserting a claim for injury from medical care (including pharmaceuticals) because the latter assume the risk, there are conflicting values at issue. I certainly like the idea of holding drug companies to a stricter standard when they are marketing those products to marginal consumers than when they are serving the core group of patients who indisputably need their products (e.g., for Vioxx, people at high risk of gastrointestinal bleeding with older drugs). Informed consent law basically follows this paradigm. On the other hand, there are good reasons not to give a free pass to those who do a bad job treating the desperate. Loss-of-a-chance doctrines opt for this paradigm when they allow patients to sue even if they would more likely than not have died regardless of whether competent medical care was administered.

Your overall take on regulation probably doesn�t differ hugely from mine, but I admit to being baffled by how you get there. You distrust courts. You distrust legislatures. But for some reason you seem willing to bet the farm on expert administrative agencies. In practice, of course, these bodies are seldom insulated from politics, but take direction from non-experts in the executive branch and constantly mix it up with both legislatures and courts. Remember how the FDA was complicit in breast implant litigation? It imposed the moratorium in large part because it feared being out of step with the courts and therefore the public, and the moratorium was a billion-dollar gift to the trial bar in surfacing plaintiffs and biasing jurors.

How far would you really trust administrative processes to make binding cost-benefit determinations? Let�s say � just picking a random example � that you love to eat very, very rare hamburgers. If an administrative agency, acting within its authority, determined that very rare hamburgers should be banned because of the risk of bacterial contamination, how would you feel? And if the agency didn�t ban very rare hamburgers, how would you feel about the restaurant that serves you a negligently contaminated one because it no longer has to worry about being held individually accountable in court?

Anyway, this has been a fun, interesting exchange, but all good things eventually must end. Here�s my bottom line on the Trial Lawyers, Inc.: Health Care report. To me, there is a huge disconnect between the sweeping assertions and unyielding positions contained in the report itself and the thoughtful, nuanced, open discussion that you and I are conducting. Painting the world in black and white is a trick of the trial bar (and of partisan politics). Both vocations follow adversarial scripts. We all know that reality shades gray. So why can�t we remember that in policy discussions? For example, as I said previously, I�m all for litigation reforms, including non-litigation avenues for individual redress, that incorporate attributes of a regulatory model where that model is superior. I just don�t see why embracing regulatory or self-regulatory processes requires totally condemning adjudicatory ones.

A related point in conclusion. Another trick of politicians and the trial bar is to make the opponent seem as big and scary and single-minded as possible. Take managed care litigation. Skilled plaintiff�s lawyers made it seem like every bad thing that happened to patients in the 1990s was the fault of HMOs. This was because managed care, at least as it developed initially, attempted to put commercial �brands� on what remained decentralized, disorganized processes of care. So every conceivable injury got lumped together under the brand-name umbrella, with predictable results in courts of law and public opinion. Think of Helen Hunt�s famous expletive in �As Good As It Gets�; if anything, managed care did better than unmanaged care treating asthma (which her character's son suffered from), not worse. Your report plays the same aggregation trick with personal injury lawyers. You know perfectly well that class action lawyers behave differently than lawyers representing individuals, and that specialists in particular fields behave differently than generalists. You know that the range of skills for lawyers is much wider than for physicians, with much lower median incomes. You know that many trial lawyers barely scrape by, and that many people with legitimate grievances have no place to turn for help. But you don�t acknowledge these subtleties in your report for fear of diluting or confusing your message. Instead, in a move that would make any litigator proud, you assemble a horrendous beast called Trial Lawyers, Inc.

Which brings me to my last question:

Why flatter trial lawyers by imitating them?

With warm regards,


PS As I promised in an earlier post, here are citations to a few articles on medical malpractice and on the relationship between lawyers and health care.

Selected Bibliography

Sage WM. Malpractice Insurance and the Emperor�s Clothes. DePaul Law Review 2005; 54(2): 463-484 (Clifford Symposium on tort law). Available at

Kessler DP, Sage WM, and Becker DJ. The Impact of Malpractice Reforms on the Supply of Physician Services. JAMA 2005; 293(21): 2618-2625. Available at

Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, and Brennan TA. Defensive Medicine Among High-Risk Specialist Physicians During a Malpractice Crisis. JAMA 2005; 293(21): 2609-2617. Available at

Black B, Silver C, Hyman DA, and Sage WM. Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002. Journal of Empirical Legal Studies 2005; 2(2):207-259. Available at

Sage WM. New Directions in Medical Liability Reform, in Malpractice and Medical Practice Handbook (Richard Anderson, ed.). Totowa, New Jersey: Humana Press 2005: 247-278.

Sage WM. Reputation, Malpractice Liability, and Medical Error, in Accountability: Patient Safety and Policy Reform (Virginia A. Sharpe, ed.). Washington, DC: Georgetown University Press 2004: 159-183. Available at

Sage WM. The Forgotten Third: Liability Insurance and the Medical Malpractice Crisis. Health Affairs 2004; 23(4): 10-21 (lead article). Available at

Sage WM. Unfinished Business: How Litigation Relates to Health Care Regulation. Journal of Health Politics, Policy, and Law 2003; 28(2&3): 387-419 (special conference issue, �Who Shall Lead?�).

Sage WM. Medical Liability and Patient Safety. Health Affairs 2003; 22(4): 26-36.

Sage WM. Understanding the First Malpractice Crisis of the 21st Century, in 2003 Health Law Handbook (Alice G. Gosfield, ed.). St. Paul, Minnesota: West Group: 2003; 1-32. Available at

Institute of Medicine. Fostering Rapid Advances in Health Care: Learning from System Demonstrations (Janet M. Corrigan, Ann Greiner, and Shari M. Erickson, eds.). Washington, DC: National Academies Press: 2002. Available at

Sage WM. The Lawyerization of Medicine. Journal of Health Politics, Policy, and Law 2001; 26(5): 1179-1195 (Special Issue, Kenneth Arrow and the Changing Economics of Medical Care, Peter J. Hammer, Deborah Haas-Wilson, and William M. Sage, eds.).

Sage WM. Enterprise Liability and the Emerging Managed Health Care System. Law & Contemporary Problems 1997; 60(2): 159-210 (symposium on medical malpractice law) (published in 1998).

Correcting Wisconsin's high court - PointOfLaw Forum

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

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

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

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

"Paint by Lawyer" - PointOfLaw Forum

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

"Wisconsin is a dangerous place to operate a business" - PointOfLaw Forum

Per AP, a big reaction is developing among business and elected officials against the recent actions of the Wisconsin Supreme Court, which imperiously struck down medical malpractice reform, became the first state to open wide the door for lead paint suits against manufacturers, and liberalized the availability of punitive damages. A particular target may be Justice Patrick Crooks, sometimes described as a member of the court's conservative wing, "who ruled with the majority in all three cases" and "has announced he will seek another 10-year term."

Wisconsin's lawless high court - PointOfLaw Forum

The W$J editorializes on the disastrous pair of decisions handed down by the Wisconsin Supreme Court the other week, the one striking down the state's duly enacted law limiting malpractice recoveries as having no "rational basis", and the other creating a new and unprecedented opening for the filing of lawsuits against companies that long ago manufactured lead pigments for paint:

The dual rulings pose a challenge to Wisconsin's politicians, who have essentially been overruled by a four-person judicial legislature. GOP Congressman Mark Green is already making this part of his campaign for Governor, while Democratic Governor Jim Doyle has yet to make a firm public statement. The implications for Wisconsin's economy, which depends both on health care and manufacturing, are enormous. The last thing Wisconsin needs is a reputation as a cold-weather Alabama.

Moving from race to the other "R" word - PointOfLaw Featured Discussion

I think we�ve said what needs to be said about race and the Supreme Court for the nonce; why not go ahead and tackle another hot-button issue lurking behind the Roberts hearings? Setting aside abortion for the moment, let�s think about religion. If we can play a little fast and loose (and that�s what we get to do when we�re blogging, right?) (or when we�re blogging right, for that matter), let�s assume that one reason some of the Democrats are stirring the pot on Roberts (in addition to getting their base excited and ready to open their wallets for the cause) is to suggest that, being a committed and practicing Catholic, he is too closed-minded to be trusted to deal fairly with issues of law and religion, and, in particular, that he cannot be depended on to keep a clear separation between church and state. It is, after all, one of the signal achievements of the Court in the past fifty years to buy into Jefferson�s strict wall of separation, whether or not that was the intention of the Constitution�s framers.

Justice O�Connor in particular was committed to her �entanglement test,� in which she rejected any measure-�such as graduation prayers, ten commandments displays, or freestanding Christmas Creches--which might represent, for her, an unacceptable state endorsement of religion. Some anti-Roberts hysteria could be worked up if he were to be painted as someone who would bring back prayer at football games, or mandatory reading at public schools from the New Testament, hysteria I wouldn�t be surprised to see some of soon.

Still, it must be said that the Court�s current jurisprudence in this area is an embarrassment, since normal people cannot understand why the Ten Commandments are permissible on a monolith outside the Texas legislature, but not on a wall inside a Kentucky Courtroom; why �In God we Trust� can stay on our coins, but a cross on the town seal of Zion must go (see bottom of page 7 here); why it�s OK to use public funds to buy maps for religious schools but not to use taxes to pay for students' transportation to them (or is it the other way around? I forget). My own paleoconservative view is that it makes sense to follow the original understanding, expressed by Justice Story, Justice Chase, and others, and say that the states (and perhaps even the federal government) oughtn�t to be barred from encouraging religion in general, and perhaps even Christianity in particular, so long as no particular sect is favored. No state is under any obligation to do so, of course, but our tradition (until about fifty years ago) was to embrace the framers� notions that one can�t have order without law, one can�t have law without morality, and one can�t have morality without religion.

The First Amendment�s religion clauses were not designed to stop state aid to religion; rather, it was the reverse, that is, to stop the federal government from interfering with whatever the states wanted to do. I think there was great wisdom in that, and while there might be plenty of room in the polity for states seeking to promote a secular public square, there ought to be plenty of room for other states to do the reverse. If there really is a problem with a decline in public morals and the coarsening of the culture, perhaps it�s time to return to a recognition of the important part religion might play in reversing the trend, and that state help in that regard might not be a bad thing. I think this topic may be too radioactive to be discussed in the course of the Roberts hearings, but I do hope this is a concern a Justice Roberts would address, and it would be interesting to hear where Richard�s libertarianism leads him on this matter.

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