December 29, 2007
Brickman Comments on DOJ
Professor Lester Brickman (of Cardozo) commented recently in the Wall Street Journal that the Department of Justice has given doctors and lawyers a "free pass" "to commit massive tort fraud, exceeding $30 billion in the past 15 years." Here's an excerpt:
But it now appears as if neither this U.S. Attorney's Office nor the parent Department of Justice is going to prosecute mass tort fraud. Six months ago there were signs that Justice was moving forward on some key cases involving one or more of the litigation doctors. Now, unfortunately, that activity appears to have all but ceased.
The dimensions of this fraud are stunning. An asbestos screening of 1,000 potential litigants generates about 500-600 diagnoses of asbestosis. If these same occupationally exposed workers were examined in clinical settings, approximately 30-50 would be diagnosed with asbestosis. The total take for "excess" asbestos diagnoses is more than $25 billion, of which $10 billion has gone to the lawyers. More billions for bogus claims in the diet drug (fen-phen) and silicone breast implant litigations can be added to this bill.
A comparative handful of doctors and technicians are responsible for the vast majority of bogus medical tests and diagnoses. To indict and prosecute those responsible would require testimony from other doctors that the mass-produced diagnoses cannot have been rendered in good faith.
To be sure, doctors can differ in reading X-rays or making a diagnosis. But when a doctor has been paid millions of dollars to produce 5,000 or even 50,000 diagnoses in the course of mass-tort screenings -- and when panels of experts have found the vast majority of these to be in error -- the most compelling conclusion is that the diagnoses were "manufactured for money."
Prosecutors on the federal and state level are nonetheless concerned that such a "battle of the experts" will raise reasonable doubt in the minds of juries, and so they decline to prosecute these doctors, let alone the lawyers who hired them. This decision, however, gives the doctors a special dispensation to commit fraud.
Peter Lattman responded on the Wall Street Journal's Law Blog.
December 28, 2007
Epidemiology and Causation
I wanted to alert our readers to a very interesting post on the Drug and Device Law blog on epidemiology, general causation and specific causation. How to harness epidemiology to decide cases in mass torts is one of the most important questions in the field.
Preemption Decision in Minn Tobacco Litigation
The BNA Class Action Reporter reports that a Minnesota Court of Appeals ruled that "a federal cigarette labeling law
does not preempt state-law claims that representations about "light"
cigarettes were fraudulent." See Dahl v. R.J. Reynolds Tobacco Co., Minn. Ct. App., No. A05-1539, 12/4/07. The court followed the First Circuit which held in Good v. Altria Group, Inc., 501 F.3d 29 (1st Cir. 2007) that the Federal Cigarette Labeling and Advertising Act does not preempt state law claims. It diverged from the Fifth Circuit, which held in Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007) that such claims are preempted.
December 26, 2007
What Happens to Class Actions Denied Certification?
In In re Bridgestone/Firestone Products Liability Litigation, 333 F.3d 763 (7th Cir. 2003) (Bridgestone/Firestone II), the 7th Circuit denied certification of a nationwide class action and held that this decision was binding -- that is, absent class members could not refile this national class action in another court to obtain certification.
What happened next? You might predict nothing. But that is not the case. Instead, the litigation was settled in state court in Beaumont Texas. You can see a short description in this article that appeared in the Texas Lawyer, reprinted in Law.com. The unpublished opinion approving the settlement can be found on Westlaw: Shields on behalf of herself and all others similarly situated v. Bridgestone/Firestone, 2004 WL 546883 (Dist. Ct. Tx. 2004).
There are a lot of ways to read this chain of events. Consider the following. The Class Action Fairness Act (CAFA) (which was passed after the events described above) was supposed to be responsive to concerns about certain state courts granting certification of class actions with minimal oversight. It purported to solve this problem by giving jurisdiction to the federal courts of class actions over a certain size. But when plaintiffs and defendants are both seeking certification, jurisdictional solutions like CAFA are unavailing because nobody is going to remove the case to federal court. So does Bridgestone/Firestone II have more bite after CAFA?
Addendum: Since Beaumont is sometimes referred to as a "judicial hellhole", this article by Adam Liptak of the NY Times might be of interest (h/t TortsProf Blog). Liptak analyzes a new report by the American Tort Reform Association claiming to "rank" judicial hellholes, albeit not empirically.
“We have never claimed to be an empirical study,” said Darren McKinney, a spokesman for the association. “It’s not a batting average or a slugging percentage. It’s no more or less subjective than what appears in The New York Times."
If they actually did an empirical study, that would be worth reading. The use of anecdotes in policy analysis is extremely misleading. Not necessarily more misleading than the abuse of statistics can be, but perhaps less amenable to reasoned counter-argument and, to the extent that is true, more pernicious as a basis for policy making. My favorite example of the moment of this problem is jury verdicts, which are so often reported as extraordinarily and perhaps offensively large. But in fact studies consistently show that civil juries and judges agree approximately 80% of the time. When they disagree, they split more or less evenly in favor of defendants and plaintiffs. For more on this see Neil Vidmar and Valerie P. Hans' new book American Juries: The Verdict, a follow up to their excellent Judging the Jury, which presented the data in a very balanced and thoughtful way.