Friday, April 6, 2007
The New York Times has a list and description of recent product recalls and the dangers posed by the products.
The Civil Procedure Prof Blog this week has a useful, in-depth interview with Judge Lee Rosenthal (Chair of the Advisory Committee on Civil Rules) about the recent amendments to the Federal Rules of Civil Procedure concerning electronic discovery. Among other things, she discusses the importance of early attention to preservation of information, as well as the need to establish discovery protocols to deal with form of production and problems of accessibility.
Here's an early April article in the Harvard Law Record: Ukrainian Institute Leaks Asbestos, Students Sue.
Maybe I've lost my sense of humor. April Fools issues of student papers are a time-honored tradition, and this piece is typically clever. But if you know anything about mesothelioma, it's just hard to find it funny.
As law teachers, we know the challenge presented by humor. I confess I've often played cases for a laugh. It keeps students engaged, focuses their attention on key points, and builds an environment that encourages participation. And besides, it's fun.
But there's a cost to laughter that distances students from the human drama in the cases. I've learned to be careful about deploying laughter when teaching cases that involve serious harm. For one thing, I work on the assumption that someone among the students has personal experience with the harm. In any large classroom, someone has lost a parent to cancer, someone has been sexually assaulted, someone has a close friend who suffered a disfiguring accident. If I'm making light of a case, that person is silently seething. But more importantly, I want my students to get into the mindset of lawyers who empathize with their clients (and, ideally, who empathize with their clients' adversaries as well, without losing a sense of loyalty to their own clients).
So when I see this funny Harvard Law Record article about "fears that full-fledged mesothelioma has struck members of the law school community," I have to wonder. What were these student authors thinking when they studied asbestos cases in their law school classes? Was the notion of massive numbers of people getting sick and dying just an abstraction? Just a random "fact pattern" as a set-up for issues of proximate causation, product identification, class certification, and reverse auction? Or were they thinking about a generation of workers who spent years working with an insulation fiber in power plants, naval yards, construction, and elsewhere, only to find out later that the fiber would kill many of them? Were they thinking about the families these workers left behind? If that's how you understand asbestos, jokes come harder.
Wednesday, April 4, 2007
Tuesday, April 3, 2007
Interesting article posted on SSRN -- A Cap on the Defendant's Appeal Bond?: Punitive Damages Tort Reform, by Professor Doug Rendleman of Washington & Lee School of Law. Here's the abstract:
The defendant's supersedeas or appeal bond was a servile drudge of appellate procedure until enormous punitive damages verdicts catapulted it out of local courthouses into headlines. From the verdict that exceeded $10 billion in Pennzoil v. Texaco in the 1980s to the punitive damages verdict of $145 billion in Engle v. Liggett Group that was reversed in the summer of 2006, appeal bonds have played a crucial role in huge-verdict litigation. This article's topic - tort reform statutes that cap an appeal bond - stemmed from punitive damages verdicts in smokers' trials against tobacco companies.
Beginning with appellate procedure, the article traces the appeal bond through related topics: federal abstention, bankruptcy, the arguments for and against state tort-reform statutes that cap an appeal bond, and state and federal constitutional doctrines, including the United States Constitution's Full Faith and Credit Clause.
Since constitutions neither compel nor forbid a limited appeal bond, the author resolved that the decision to cap or not to cap resides in the legislature's realm of evaluating public policy. The appeal bond cap's function of facilitating the defendant's entryway to the appellate court whose warranty is a crucial imprimatur for accurate and legitimate judicial decisionmaking convinced the author to commend a cap of $25 to $50 million for a defendant's appeal bond on a jury's verdict for punitive damages.
Article in the Wall Street Journal -- Doctors Charged Over Trials Of Glaxo Vaccine in Russia, by the Associated Press. Here's an excerpt:
Prosecutors charged three Russian doctors with endangering people's health following a criminal investigation into vaccine trials organized by United Kingdom pharmaceutical giant GlaxoSmithKline PLC, federal authorities said Monday.
The doctors at a hospital in Volgograd, about 550 miles southeast of Moscow, had participated in the tests for pediatric vaccines called Varilrix and Priorix Tetra beginning in late 2005, the prosecutor general's office said in a statement posted on its Web site.
A total of 112 children between the ages of one and two were involved in the trials, prosecutors said. Officials opened their inquiry when a parent complained to prosecutors after her daughter suffered medical complications, apparently from the vaccine.
Parents were allegedly told by the doctors that the vaccines were routine rather than experimental, prosecutors said.
Article in the Wall Street Journal -- FDA Blocks Wheat Gluten Imports From Chinese Firm After Pet Recall, by the Associated Press. Here's an excerpt:
The U.S. government has blocked imports of wheat gluten from a company in China because of contamination, acting after the recent pet-food-related deaths of cats and dogs.
The Food and Drug Administration took action against wheat gluten from Xuzhou Anying Biologic Technology Development Co. in Wangdien, China, after the U.S. recall of nearly 100 brands of pet food. Tainted pet food apparently has resulted in kidney failure in animals across the country.
Monday, April 2, 2007
Whatever you want to call it -- plaintiff-friendly venue, renegade jurisdiction, or judicial hellhole -- it takes time for a forum's reputation to change. Madison County, arguably the most notorious plaintiff-friendly and class-action-friendly jurisdiction of the past decade, has changed in recent years. But will the recent defense verdict in a Vioxx case help the county finally shed its reputation? This AP story in Insurance Journal -- Ill. Vioxx Verdict Helps Madison County Shed Pro-plaintiff Reputation -- suggests that this verdict is a big step, but that these things take time:
Judicial watchdog Ed Murnane long has been critical of Madison County's reputation as a plaintiff's paradise in big-money lawsuits, and he knew changing that would take baby steps. So it was little wonder that the chief of the Illinois Civil Justice League, which sides with business and the insurance industry in fighting for caps on damages and other lawsuit reforms, was encouraged when a jury rejected a widower's request for tens of millions of dollars in damages against Merck & Co. in the death of his wife. ...
Murnane acknowledged Wednesday that jurors might have sided with Merck because Frank Schwaller's case wasn't persuasive enough _ not to prove this county just east of St. Louis didn't deserve being stigmatized by some as a "judicial hellhole.'' Even so, Murnane believes the verdict may be a "watershed"' for Madison County and the nation's perception of it. "This is just a good, positive sign. There is no doubt,'' he said. While "it certainly doesn't erase all of the concern and distrust people have had,'' the county needs to sustain the momentum and "the image of fairness.''
For years, Madison County has been known as a place where lawyers from across the country file cases hoping for big payouts involving everything from asbestos exposure to medical malpractice. ...
Under the watch of Ann Callis, Madison County's chief judge since last May, reforms cheered by Murnane and others are under way. Murnane said recent local rules adopted by Madison County judges that make it tougher for plaintiffs, particularly from out-of-state, to file cases here and moving some cases to arbitrators have weeded out frivolous lawsuits and helped speed cases along. ...
Numbers show improvement. Major civil cases _ those seeking at least $50,000 _ last year totaled 1,145, down from 1,297 in 2005, 1,439 in 2004 and 2,102 in 2003. Asbestos lawsuits dropped to 325 last year, nearly one-third of the 953 such cases in 2003. There were three class-action filings in 2006; just three years before that, there were 106.
Even the American Tort Reform Association has taken notice. In announcing its yearly "judicial hellholes'' ranking, the group in December put Madison County fifth, improved from fourth the previous year after two years atop the list. The association credited the county with "extraordinary changes'' in the past two years that significantly improved fairness, warranting the county's move from "from the worst-of-the-worst to purgatory.'' ...
But shedding the hellhole image doesn't appear imminent. "Such a reputation does not fade fast,'' the group's Web site reads, "and civil defendants still shiver at the prospect of facing a lawsuit in Madison County.''
Sunday, April 1, 2007
Article in the Washington Post -- Conflict-of-Interest Inquiry May Be Reopening at NIH, by Rick Weiss. Here's an excerpt:
Federal investigators are reviewing the activities of 103 scientists who may have had improper links to pharmaceutical companies while they were employed at the National Institutes of Health, apparently resurrecting a conflict-of-interest inquiry that many in the agency thought was closed.
In a letter sent to several members of Congress on March 23 and made public yesterday, Daniel R. Levinson, inspector general for the Department of Health and Human Services, said his office is looking into the cases "to determine whether investigation is warranted."
Levinson also wrote that his office is reviewing whether NIH is adequately monitoring potential conflicts of interest among its thousands of grant recipients -- typically university researchers.
Article in the Washington Post -- Alpo Dog Food Removed From Store Shelves, by Jerry Markon. Here's an excerpt:
The recall of contaminated pet food expanded as stores removed from their shelves a limited number of cans of Alpo dog food, the latest high-profile brand to be caught up in the investigation of what has sickened or killed an unknown number of cats and dogs.
Nestle Purina PetCare Co., which manufactures the 71-year-old brand, announced Friday that it was voluntarily recalling all sizes and varieties of Alpo Prime Cuts in Gravy wet dog food that are marked with specific date codes. The company acted after learning that wheat gluten containing melamine -- a toxin suspected of causing the pet illnesses -- had contaminated cans at one of Purina's 17 pet-food manufacturing facilities.
Article in the Washington Post -- Wyeth shares could rise more than 20 pct: Barron's, from Reuters. Here's an excerpt: "The newspaper said Wyeth may also be near the end of incurring costs for its discontinued fen-phen diet drug, following a nationwide settlement and $21 billion of charges."