July 19, 2008
Kevin Clermont on Litigation Realities
Professor Kevin Clermont (Cornell) has posted his forthcoming article, Litigation Realities Redux, on NELLCO/Bepress. Here's the abstract:
Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.
July 18, 2008
FDA Focuses on Hot Peppers in Salmonella Investigation, Lifts Tomato Warning
Article in the Wall Street Journal -- Hot Peppers Are Focus Of Salmonella Probe, by Jane Zhang. Here's an excerpt:
The Food and Drug Administration declared tomatoes safe to eat, saying it is focusing on hot peppers in its hunt for the source of a salmonella outbreak that has sickened more than 1,200 people in the U.S. and Canada.
The agency has sent investigators to look into a Mexico packer of jalapeño and Serrano peppers, though it can't say that facility is the source of the contamination, said David Acheson, the FDA's associate commissioner for foods, in a conference call with reporters Thursday.
The FDA, which originally blamed tomatoes for the outbreak that started April 10, says it is focusing on jalapeño peppers, which it said have caused illnesses, as well as Serrano peppers, which can be confused with jalapeños.
Climate Change and the Tort Paradigm
Can notions of corrective justice or distributive justice inform discussions of global warming? Is tort law helpful as a paradigm in which to resolve global warming concerns? Professors Eric Posner (Chicago; picture left) and Cass Sunstein (Harvard; picture right) probe these questions and others in a brief, informative article, Global Warming and Social Justice, in the Cato Institute's Regulation (Spring 2008).
July 16, 2008
Russell Jackson on Lead Paint Litigation
J. Russell Jackson (Skadden, Arps) has published Products Liability: Lead Paint Litigation in the National Law Journal. The article discusses the state of lead paint litigation after the Rhode Island Supreme Court's recent reversal of lead-paint nuisance claims.
Increase in Use of Drug-Coated Stents, Despite Past Safety Concerns
Article in the Wall Street Journal -- Use of Coated Stents on the Rise, by Keith J. Winstein. Here's an excerpt:
Drug-coated heart stents, whose U.S. sales were hard hit over safety concerns in the past two years, appear to be mounting a comeback.
In June, 73% of stent procedures in the U.S. used a coated stent, according to the Goodroe Data Warehouse unit of VHA Inc., of Irving, Texas, based on a survey of 60 U.S. hospitals. That is up from 62% in December -- which was the lowest level in several years -- and puts coated stents' popularity at levels not seen since February 2007, when a scientific firestorm raged over the devices' safety.
Coronary stents are tiny scaffolds that relieve chest pains by propping open clogged arteries that feed the heart. About a million Americans a year receive stents. The fanciest models are coated with drugs that prevent scar tissue from reclogging an artery and cost about $2,000, making them far more profitable than uncoated, bare-metal stents, which sell for less than half the price.
Mark Herrmann on Alison Bass's Book, Side Effects
Book review in the Wall Street Journal -- The Plaintiff Was Unhappy, by Mark Herrmann (of Jones Day and the Drug & Device Blog; picture left). Herrman is critical of the new book, Side Effects: A Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial, by Alison Bass (picture right). Here's an excerpt of Herrmann's review:
For Ms. Bass the judgment of researchers, together with their data and claims, are untrustworthy if they have received money from drug companies to finance clinical trials. She is particularly hard on a professor of psychiatry from Brown University who has defended Paxil. But if the drug companies didn't pay for such trials, who would? And why shouldn't companies seek advice from the best scientific minds and pay them for their efforts?
Most odd of all, Ms. Bass treats the FDA as a shill for industry—despite its having thoroughly reviewed the suicide matter and required warnings on product labels where it saw fit. She makes the usual complaint that the FDA has reduced its time frame for approving new drugs: "That sprint came with a price tag. A flood of questionable drugs was unleashed on the market, many of which," like Vioxx, "would later have to be recalled."
But she says not a word about how society suffers when the FDA approves new drugs too slowly, depriving patients of life-improving and life-saving medicines. Nor does she mention the studies showing that more rapid drug approval timelines in the European Union have not led to more drug-safety withdrawals. There are two sides to this story; Ms. Bass tells only one.
Kia Class Action Appealed to Pennsylvania Supreme Court
As reported by the Legal Intelligencer, the Pennsylvania Supreme Court has agreed to hear the following four issues from the Kia class action in Samuel-Bassett v. Kia Motors America, Inc.:
whether the fact-specific claim that the class representative's brake express warranty was breached can be certified and tried on a classwide basis;
whether Kia's due process rights were violated when trial court Judge Mark I. Bernstein entered judgment for the class without requiring individual proof of the breach of the class members' express limited warranty contracts;
whether the trial court's award of a $1 million risk multiplier to attorney fees violated U.S. Supreme Court precedent and if Pennsylvania courts must follow U.S. Supreme Court precedent about federal fee shifting statutes;
whether an attorney fee can be awarded under the federal Magnuson-Moss Warranty Act (MMWA) -- which requires that fee awards be entered as part of the judgment -- when final judgment was entered at the trial court level before the fee award is entered.
Plaintiffs' instituted the action over allegedly defective brakes and were awarded $5.6 million. The Philadelphia Court of Common Pleas also awarded plaintiffs' attorneys $4.13 million in fees.
July 14, 2008
California Supreme Court to Review Punitive Damages Award in Ford Rollover Case
Article in Bloomberg.com -- Ford Gets California Review of $82.6 Million Rollover Verdict, by Edvard Pettersson. (H/t to AmLaw Litigation Daily.) Here's an excerpt:
Ford Motor Co., the second-biggest U.S.-based automaker, will get a review from California's highest court of an $82.6 million verdict stemming from a 2002 rollover crash that left a woman paralyzed.
The California Supreme Court, in a notice posted today on its Web site, granted Ford's petition for review of a California appeals panel's decision not to reduce the $55 million punitive damages part of the verdict or to grant a new trial.
The U.S. Supreme Court last year ordered the appeals court in San Diego to reconsider the punitive damages in light of a decision in a smoker's lawsuit against Altria Group Inc.'s Philip Morris unit that said punitive damages couldn't be based on harm to people not involved in the court case. The appeals court said March 10 there was no evidence the Ford jury based its award on harm to people who weren't part of the lawsuit.