Thursday, July 3, 2008
Well, congratulations to us. The Mass Tort Litigation Blog was named a "Top 100 Law and Lawyer Blog" by the Criminal Justice Degrees Guide, along with fourteen other law professor blogs including Lessig, Volokh, Bainbridge, Madisonian, Tax Prof, and other noteworthies.
Article in the Wall Street Journal -- Recent Rulings Bolster the Case For Class Actions, by Nathan Koppel. Here's an excerpt:
Widespread efforts by companies to prevent consumers from pursuing class-action suits against them are increasingly getting quashed by state courts.
The New Mexico Supreme Court last week followed several other state courts in holding that a consumer agreement prohibiting class-action suits violates that state's public policy and is "unconscionable." The case concerned Dell Inc.'s requirement that its customers pursue claims through arbitration, and on an individual basis only.
"The opportunity to seek class relief is of particular importance to the enforcement of consumer rights, because it provides a mechanism for the spreading of costs," the court ruled.
Ted Frank, director of the AEI Legal Center for the Public Interest, discusses the recent punitive-damages Supreme Court decision, Exxon v. Baker, as part of a Federalist Society SCOTUScast.
Wednesday, July 2, 2008
The Supreme Court of Rhode Island reversed in State of Rhode Island v. Lead Industries Association. The opinion below had imposed liability on lead paint manufacturers under a public nuisance theory. The RI Supreme Court rejected that theory of liability. I heard the story on NPR's Marketplace. You can find the RI Supreme Court opinion here. Some commentary from the folks at the Drug and Device Law Blog (who, given that one of them represents defendants in lead paint cases, are very pleased) here.
The problem with cases against lead paint manufacturers is that its impossible to prove that the lead paint present in buildings today comes from a particular company. The problem from the defendant's perspective is that perhaps their lead paint didn't cause this damage. The problem from the plaintiff's perspective is that they were damaged by some lead paint, they just can't prove whose lead paint. Its really an issue of cost shifting in instances of uncertainty - who should pay for the cost of widespread distribution of substances like lead paint that cause damage, individuals or manufacturers? The system generally imposes those costs on individuals because our system of torts is particularistic and doesn't recognize the concept of risk very well. So as a general matter, a tort plaintiff has to prove that this defendant caused this particular harm, rather than this defendant participated in increasing the risk of the harm occuring.
I think the only state that imposes this type of global liability on lead paint manufacturers is Wisconsin, which as I recall was based on a slightly different theory. There are cases pending in California and Ohio.
Article in the Wall Street Journal -- Salmonella Probe Looks Beyond Tomatoes, by Jane Zhang and Julie Jargon. Here's an excerpt:
With the number of salmonella victims still climbing, federal regulators are widening their investigation to include other fresh produce commonly consumed with tomatoes.
David Acheson, the Food and Drug Administration's associate commissioner for foods, said the agency is enlisting help from state and local labs to test a wider range of foods for the rare, virulent salmonella strain dubbed Saintpaul. He declined to specify which new products the FDA is focusing on.
The agency's move comes as the FDA is under growing pressure to step up efforts to trace the source of the contamination. Last week, the agency said it might not be able to pinpoint the source given the complexity of the nation's food-supply chain, frustrating industry groups representing the produce, supermarket and restaurant industries.
Anthony Sebok (Cardozo) has an excellent Findlaw colum (click here) on Exxon v. Baker. There are lots of interesting points in this column. Sebok's discussion of the history -- and of the importance of the theory of punitive damages in light of that history -- is very illuminating.
Monday, June 30, 2008
An article in this morning's Wall Street Journal by Avery Johnson and Ron Winslow details the flip-side of increased FDA scrutiny: fewer new drugs in the pipeline. Drug companies such as Eli Lilly & Co, Japan's Daiichi Sankyo Co. and Merck believe that the FDA has become too careful while consumer advocates welcome the FDA's increased warnings and drug withdrawals. Here's an excerpt of the article:
Grousing by drug-industry executives about the FDA is nothing new. It's a product of the perennial tension between regulators and the companies they oversee.
But the Vioxx debacle, which sparked harsh criticism of both drug companies and their chief regulator, appears to have led to a climate shift. The drug industry largely has itself to blame for allegedly manipulating clinical data, concealing dangerous side effects and aggressively promoting risky products, which created widespread mistrust. The FDA, for its part, was harshly criticized for its decisions on Vioxx and in a litany of subsequent drug scares.
Outspoken scientists, watchdog groups, medical-journal editors and politicians have fanned worries about safety. The wave of post-Vioxx drug scares included concerns that GlaxoSmithKline PLC's widely used diabetes drug, Avandia, could raise heart-attack risk, and that Pfizer Inc.'s smoking-cessation drug, Chantix, may be connected to suicides. More than 80 U.S. deaths linked to contaminated heparin from China have further ratcheted up public anxiety. The FDA has been battered by criticism that it wasn't vigilant enough, including from Cleveland Clinic cardiologist Steven Nissen, Sen. Chuck Grassley of Iowa and Rep. John Dingell of Michigan.