Friday, September 12, 2008
Alexandra Klass (Minnesota) has just posted an article on SSRN titled "Tort Experiments in the Laboratories of Democracy." The abstract is below:
This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called federalism revolution of the 1990s to limit Congressional authority in the name of states' rights, it was simultaneously cutting back on the ability of states to provide their citizens with tort rights and remedies through preemption doctrine and due process limits on punitive damages. This Article explores these trends in the states, Congress, and the Supreme Court and concludes that part of the problem in federal-state relations in the area of tort law is that Congress and the Supreme Court have shifted from a private law to a public law view of tort that does not give sufficient attention to the important private law goals tort law still serves. This has allowed Congress and the Court to more easily displace state tort law without considering the need for any substitute federal remedy. Once the private law aspects of torts are recognized, it becomes easier to identify and value the role tort law plays in our federalist system.
In an article aptly titled Punitive Damages and Class Actions, just posted on SSRN, Francesco Parisi (Minnesota) and Marta Cenini (Milan) take on the relationship between punitive damages and class actions. Here is the abstract:
Punitive damages and class actions can be viewed as sharing a common economic function - creating optimal deterrence. This is a function that these remedies can best pursue in different domains. When a tortfeasor causes harm that affects many victims, the preferred remedy is a class action. This is especially so when the amount of compensatory damages are high.There are scenarios, however, in which imposing punitive damages represents the best solution. We identify some of these scenarios to suggest the proper domains of these two remedies. Finally, we identify situations where a combined use of these two remedies is desirable. We suggest that when the amount of losses suffered by victims is so small as to preclude a class action due to transaction costs and inactivity, it may nevertheless be useful to combine punitive damages with a class action. Punitive damages should be awarded within a class action if and only if there are frictions that could prevent the injured party from taking legal action.
Today's BNA Class Action Litigation Report (p. 710) reports that residents in Clinton and Dekalb Counties in Missouri filed a class action (with two subclasses) claiming that Rockwool Industries, Inc., a fiber insulation manufacturer, dumped lead and arsenic as well as other toxins in the area. Plaintiffs' claims include negligence, strict liability, nuisance, and trespass. They're requesting medical monitoring and damages. The Rockwool facility operated between 1974 and 1982. The lawsuit is Helms v. Rockwool Industries, Inc., No. 08CN-CV00693 (Mo. Cir. Ct. Aug. 21, 2008).
Thursday, September 11, 2008
It's been seven years since the attacks in 9/11/2001, and health concerns remain. Here's an excerpt from an article today from cnn.com -- 9/11 survivors troubled by asthma, PTSD, by Andrea Kane:
A commission charged with examining the scope and depth of the attack's health effects reviewed more than 100 scientific articles published since 2001 and found that new asthma levels among residents and rescue workers were two to three times higher than the national estimates.
The report by the World Trade Center Medical Working Group, issued in advance of the September 11 anniversary, also found that two to three years after the attack, symptoms of post-traumatic stress disorder remained elevated among rescue and recovery workers and residents of lower Manhattan.
Tuesday, September 9, 2008
Article in the Wall Street Journal -- Reynolds American to Cut 570 Jobs, by David Benoit. Here's an excerpt:
Reynolds American Inc. will lay off 10% of its U.S. work force and refocus R.J. Reynolds Tobacco Co. as the company deals with a slowing market for cigarettes and a competitor's big move into the smokeless-tobacco market.
The announcement from Reynolds American comes the day after competitor Altria Group Inc. announced it was acquiring UST Inc. in a $10.4 billion deal. That deal gives the parent of Marlboro cigarettes the lead in smokeless-tobacco production -- the fastest-growing tobacco segment -- with UST's Skoal brands.
Reynolds American said Tuesday it is looking to simplify and streamline its product lines in order to cut costs. The efforts -- which include shifting company focus from the menthol Kool brand cigarette to the Camel brand -- will result in the cutting of 570 jobs from the work force of Reynolds American and R.J. Reynolds in Winston-Salem, N.C. The company will also review the value of the Kool trademark, which could result in a write-down for the current quarter.
Several plaintiffs across the country have initiated failure to warn and design defects cases against Aventis Pasteur Inc, Merck, and Wyeth. They allege that the childhood vaccines cause autism. Most recently, Judge New, of the Philidelphia Court of Common Pleas, held that these claims were expressly preempted by the National Childhood Vaccine Injury Act. Amaris Elliott-Engel of the Legal Intelligencer reports on this latest ruling. Here's an excerpt:
New said in his opinion that it appears no Pennsylvania state court has addressed whether §22(b) of the Vaccine Act expressly pre-empts claims of design defects against vaccine manufacturers, or whether each case has to be examined individually to determine "whether a vaccine is unavoidably safe before they gain the protection of Section 22(b)."
. . .
Plaintiffs' attorney Marc P. Weingarten of Locks Law Firm said the case is "an extremely important issue to be heard by the courts of Pennsylvania" because of the federal pre-emption issues arising in pharmaceutical and medical device litigation in both state and federal jurisdictions.
The plaintiffs argued that the defendants were negligent because the public and the medical profession were not warned about the alleged hazards of mercury in the vaccines, New said. The plaintiffs also argued that the pharmaceutical defendants failed to use ordinary cases in designing the vaccines containing thimerosal because of the risks the plaintiffs say toxic mercury poses to infants and children.
The plaintiffs said the Vaccine Act didn't automatically pre-empt the design defect claim because the vaccine defendants have the burden of proof to show on a case-by-case basis that the use of thimerosal is "‘unavoidably safe,'" New said.
Courts can interpret the Vaccine Act two ways, the plaintiffs argued, and should only interpret the Vaccine Act to pre-empt design defect claims "only if first the side effects are determined to be unavoidable on a case-by-case basis," New said.
Lester Brickman (Cardozo) has just posted an article on SSRN entitled The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?" Here is the abstract:
Lawyers obtain the "mass" for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These "litigation screenings" have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers' offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate "medical" evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants' products. Usually a handful of doctors ("litigation doctors") provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.
By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.
On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on "diagnoses" of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were "manufactured for money."
Despite the considerable evidence I review that most of the "medical" evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.
Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.
Monday, September 8, 2008
Noting that "Lilly's legitimate interest in confidentiality does not outweigh the public interest in disclosure," Judge Jack B. Weinstein unsealed formerly confidential documents on links between Zyprexa, obesity, and high blood sugar. Both the New York Law Journal and the New York Times have articles on the topic. As I've written in the past, transparency in matters affecting the public is crucial to judicial institutional legitimacy and public education. Consequently, this is a big step in that direction. Here's an excerpt from the New York Times piece by Mary Williams Walsh:
The publication of sealed information led Judge Weinstein to issue a sharply worded ruling last year, stating that Mr. Berenson had engaged in a conspiracy with a doctor and a lawyer and that they had used others “as their agents in crime.”
The judge said the sealed documents belonged to Lilly and ordered the doctor, David S. Egilman, and the lawyer, James B. Gottstein, to return them. Dr. Egilman had been serving as an expert consultant for the plaintiffs at the time, and Mr. Gottstein was working on Zyprexa litigation in Alaska.
Since then, insurance companies, unions, medical researchers and other publications have filed formal requests for copies of the documents. Many of the papers were entered into open court proceedings in Alaska, and copies of some have been posted on the Internet.
In his ruling on Friday, Judge Weinstein repeated that the information had been “obtained illegally” by The Times but also cited “this country’s general policy of accessibility of court records.”
The 295 page opinion is available here and the case is In re Zyprexa Products Liability Litigation, 04-MD-1596.