Monday, April 27, 2009
Los Angeles Superior Court Judge Victoria Chaney dismissed two tort cases against Dow Chemical and Dole as fraudulent. The suits alleged that chemicals manufactured by the defendants and used on banana plantations caused sterility. Law.com reports of the lawyers' misconduct (see the full article here) - the Edelman referenced below is the defendants' attorney:
The transcript of the hearing in which the judg excoriated the plaintiffs' lawyers can be found at this link. She will hold a contempt hearing and potentially refer the lawyers to the bar disciplinary committee.
(H/T Legal Ethics Forum - Roy Simon gives this the cute title "Banana Lawyer Slips, Tort Cases Fall")
Monday, April 20, 2009
The New York Times reports that a lawsuit by property owners against the US Army Corps of Engineers regarding the breaking of the levees during Hurricane Katrina begins today. Click this link to get to the article. The article notes that the plaintiffs overcame the immunity issue, but still need to prove that government negligence, not the sheer force of the hurricane, caused their damage. In terms of significance of this litigation, here's what the article says:
Editorial in today's Wall Street Journal on the delay in approving prostate-cancer drug Provenge by the FDA -- Prostate Cancer and FDA Politics: Their first priority should be to save patients. Here's an excerpt:
Id. One wonders if rather than an FDA-centric regulatory approach, a flexible negligence standard incorporating evolving industry custom for testing would better serve public policy by expeditiously moving safe and effective drugs to market.
Friday, April 17, 2009
Article in the Wall Street Journal -- Homeowner Problems With Chinese-Made Drywall Spread, by Michael Corkery. Here's an excerpt:
Fearing that the construction material is making them sick, homeowners are moving out of their houses, filing lawsuits and demanding help from lawmakers. Two U.S. senators have proposed a temporary ban on certain Chinese drywall imports. A Chinese government agency is also investigating, according to a Chinese news report.
The actual health effects of the drywall, which is commonly used to construct interior walls, are still unknown. While homeowners attribute bloody noses, sinus problems and headaches to the drywall, the Florida health department said there is no evidence that gases being emitted from the construction material pose a serious health risk.
Thursday, April 16, 2009
Second Wall Street Journal Editorial on Plaintiffs' Lawyers Hired for Contingency Fee by State of Pennsylvania
Our editorial last week on the state lawsuit racket has created a stir in Pennsylvania, where Governor Ed Rendell has finally had to defend his "pay-to-play" relationship with Houston plaintiffs lawyer F. Kenneth Bailey. That's the good news. The rest of this underreported story is that Mr. Bailey has been running a nationwide "pay-to-sue" operation with Democratic state Attorneys General.
As we reported, Mr. Bailey made repeated donations to Mr. Rendell's 2006 re-election campaign in the months before his law firm was given a no-bid, contingency-fee contract to sue Janssen Pharmaceuticals on the state's behalf. Mr. Rendell told the Philadelphia Inquirer -- whose reporters have roused from their slumbers -- that "there wasn't the slightest bit of pay-to-play here." But the Governor was obliged to acknowledge that Mr. Bailey had approached the state about suing Janssen. Normally, the state Attorney General would handle such legal matters, but the AG rebuffed Mr. Bailey. Mr. Rendell's office then decided to hire the law firm that was also his major campaign donor. Smile if you think the two were related.
The episode speaks volumes about Mr. Rendell's political ethics, but more important is what it reveals about the plaintiffs bar's latest "business" model. Mr. Bailey's Janssen suit is part of a national pay-to-sue operation, as he and his Bailey, Perrin & Bailey law firm have taken their pre-packaged lawsuit to many states. Janssen's complaint asking the Pennsylvania Supreme Court to dismiss Bailey Perrin from the suit notes that the firm has "taken on numerous engagements similar to this action, including representation in the states of Louisiana, South Carolina, Arkansas, Mississippi and New Mexico."
Wednesday, April 15, 2009
Catherine Sharkey (NYU) and Jonathan Klick (Penn) have posted an article entitled "What Drives the Passage of Damage Caps?" on SSRN. The article is available here. Here is the abstract:
Richard Lempert (Michigan) has posted an article entitled Low Probability/High Consequence Events: Dilemmas for Damage Compensation on bepress. Here is the abstract:
This raises the following question in my mind: Are large "unique" catastrophes really unique? That is, should as a matter of procedure or institutional design treat tort claims arising out of Katrina or 9/11 differently than the tort claims arising out of use of Zyprexia or Vioxx? If so, why? One explanation might be that we think of disasters as being blameless, while we do assign blame in the tort context, but arguably that isn't true with respect to 9/11 (terrorists) or Katrina (government ineptitude). Although it is the case that those wrongdoers cannot be successfully hauled into court.
A very intriguing analysis just posted on bepress calls into question whether litigation is a substitute for regulation. See Eric Helland and Jonathan Klick, The Relation Between Regulation and Class Actions: Evidence from the Insurance Industry, available here.
Here is the abstract:
Saturday, April 11, 2009
Ian Ayers (Yale law) and Peter Siegelman (UConn Law) have posted a suggestion for regulating food safety: establish that the company CEO uses the product. In other words, "I'm not only the president, I'm also a client." See the idea developed more fully here at Freakonomics blog or here on Balkinization.
Now for some civil procedure free association. At the oral argument in the Iqbal v. Ashcroft case in the Supreme Court this term, Justice Breyer asked if a plaintiff finds a mouse in a can of cola, can he depose the CEO of a cola company? If government regulations required the CEO to drink the cola, is the answer yes? The answer it seems to me should be no, unless there is some demonstrable reason to depose the CEO (that is, deposing him or her will lead to the discovery of admissible evidence). Just tasting the Cola is not such a reason, although "plausibly" alleging that the CEO had learned of the mice in cola and let the cola be distributed nevertheless or conspired to place mice in cola might be sufficient (at least, until Iqbal comes down). The majority of the members of the Court seemed to think that letting a CEO be deposed is pretty much the end of the world. (Quite a turnaround from the Court's position that a civil suit against the President can proceed, including depositions.) I wonder what they would make of forcing CEOs to eat the peanut butter their companies produce.
Wednesday, April 8, 2009
Editorial in the Wall Street Journal -- The State Lawsuit Racket: A case study in the politician-trial lawyer partnership. Here's an excerpt:
Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, is a defendant in a lawsuit filed by the state of Pennsylvania over Janssen's antipsychotic drug Risperdal. The state alleges that Janssen has improperly marketed the drug for off-label uses not approved by the Food and Drug Administration. Janssen denies the accusation, but the merits of the case -- which hasn't gone to trial yet -- are not what's at issue in the motion before the court.
Rather, what's at issue is the fact that the civil action against Janssen is being prosecuted on behalf of the state by Bailey, Perrin & Bailey, a Houston law firm. And it turns out that Pennsylvania Governor Ed Rendell's Office of General Counsel was negotiating this potentially lucrative no-bid contingency fee contract with Bailey Perrin at the same time that the firm's founding partner, F. Kenneth Bailey, was making repeated campaign contributions totaling more than $90,000 to the Democratic Governor's 2006 re-election bid.
Tuesday, April 7, 2009
Article by Alison Frankel in AmLaw Litigation Daily -- Texas Torts Firm Says Business Is Booming, Expands Houston Office. The article has some interesting quotes from Mark Lanier about asbestos litigation. Here's an excerpt from the article:
We couldn't let that comment pass without asking what were still home run jurisdictions for asbestos claimants. There aren't a lot, Lanier said: Baltimore; New York; some parts of California, though that's beginning to change; and West Virginia, if you can get jurisdiction there. Lanier told us he's hoping to revive Texas asbestos litigation and is making a new push to file cases in Boston.
Here's an excerpt from the Journal's editorial, The Silicosis Abdication: A scam that deserves as much scrutiny as Lerach and Scruggs:
That's an especially apt question given news that New York's State Board for Professional Medical Conduct has finally revoked the license of Dr. Ray Harron. He was among the doctors who Texas Judge Janis Graham Jack showed had fraudulently diagnosed thousands of plaintiffs with silicosis, a rare lung disease. These doctors were later called to testify in Congress, where many, including Dr. Harron, took the Fifth Amendment.
Dr. Harron has since lost his medical licenses in California, New Mexico, Texas, Florida, North Carolina and Mississippi. This is progress, though hardly sufficient. Among the questions Congress asked state departments of health during the silicosis hearings were why those bodies hadn't moved to shut down these doctors and their mobile X-ray vans at the time they were committing medical malpractice.
Sunday, April 5, 2009
Professor Sheila Scheuerman (Charleston; picture, left) has posted on SSRN her article, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, Mo. L. Rev. (forthcoming 2009). Here's the abstract:
Friday, April 3, 2009
Alison Frankel, of the American Lawyer, reports that the Fifth Circuit has given the green light to the "learned intermediary defense" in the Zyprexa product liability suits. The defense is based on the doctor (the learned intermediary) warning the patient of prescription drug side effects. Here's a link to the Fifth Circuit opinion and an excerpt of the article:
The facts in the Zyprexa case are heartbreaking. The victim, Philip Ebel, suffered from crushing headaches, for which he tried no fewer than 47 different treatments. His doctor in Texas, in consultation with a neurologist from a headache clinic in Michigan, finally prescribed Zyprexa -- an anti-psychotic prescribed off-label for headaches. Ebel took Zyprexa for four months before killing himself in 2002.
His doctor testified at a deposition that he was aware of Zyprexa's side effects, including an increased risk of suicide, and that he told Ebel about them. The 5th Circuit, in agreement with the lower court, ruled that because Ebel and his doctor were aware of the risks, Lilly's alleged failure to warn could not be "a producing cause" of Ebel's death.
Ebel's lawyer, Andy Vickery of Houston's Vickery, Waldner & Mallia, told the Litigation Daily that the 5th Circuit is behind the times when it comes to the learned intermediary defense. He said that courts in West Virginia, Oregon and New Mexico have all recently rejected it. "It's a travesty of justice when we cede the case to prescribing physicians who inevitably have an agenda of their own," said Vickery, who is also the plaintiffs lawyer in the Paxil case recently decided by the 5th Circuit. "Their rulings are a complete anachronism, a complete miscarriage of justice."
Wednesday, April 1, 2009
An article by Edward Cheng (Brooklyn Law) called "A Practical Solution to the Reference Class Problem" has just been posted on SSRN.
The "reference class problem" is a key issue in mass tort cases. For example, say a judge wants to hold a series of "bellwether" trials -- that is, a series of sample trials -- in order to determine what compensation is due to a group of plaintiffs. To do so, judge will have to decide what criteria to rely on in determining the sample. In other words, the judge must determine the appropriate reference class. The problem is that if the group is heterogeneous the judge will have to pick and choose among criteria, and it is hard to determine which criteria are relevant. This is the reference class problem and is a central barrier to certification of mass torts class actions because it renders them unmanageable. Cheng proposes a solution in his paper, and I haven't read it yet to be able to evaluate whether this solves the problem. It certainly presents food for thought and is an important issue!