April 11, 2009
The "Hair Club for Men" Theory for Regulating Food Safety
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.
April 8, 2009
Wall Street Journal on Plaintiffs' Lawyers Hired for Contingency Fee by State of Pennsylvania
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.
April 7, 2009
Mark Lanier Expanding Plaintiffs' Tort Law Firm
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.
Wall Street Journal Editorial on Silicosis Fraud Follow-Up
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.
April 5, 2009
Sheila Scheuerman on Statutory Damages and Class Actions
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: