Wednesday, July 29, 2009

Baker on Insurance, Transparency and the Civil Justice System

Tom Baker (Penn) has published a chapter on SSRN that makes some important points about what we know, and what we don't know, about the civil justice system.  The chapter is entitled Transparency Through Insurance, Mandates Dominate Discretion (you can find it on SSRN at this link).  The abstract is below:

This chapter describes how liability insurance has contributed to the transparency of the civil justice system. The chapter makes three main points. First, much of what we know about the empirics of the civil justice system comes from access to liability insurance data and personnel. Second, as long as access to liability insurance data and personnel depends on the discretion of liability insurance organizations, this knowledge will be incomplete and, most likely, biased in favor of the public policy agenda of the organizations providing discretionary access to the data. Third, although mandatory disclosure of liability insurance data would improve transparency, a reasonably complete understanding of the empirics of the civil justice system also requires mandatory disclosure of the payments and defense expenditures that are not covered by liability insurance.

The first part of this chapter describes existing approaches to transparency through liability insurance in the U.S. The second part analyzes the role of liability insurance in promoting transparency in several discrete civil justice arenas - auto, medical, and products liability - and, for comparison purposes, workers’ compensation. The concluding section addresses objectives to expanding mandatory claims reporting and links the discussion in this chapter to the literature on the relationship between liability and insurance more generally.


July 29, 2009 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 28, 2009

Mass Tort Score Card

The folks over at Drug & Device Law have an interesting post evaluating the trends in their field in the last twenty five years from the defense point of view.  Click on this link to see the post.

Overall, their sense is that things have been moving in the defense's favor.  They give developments in class actions an "A", Expert Witnesses an "A", pleadings an "A-", Learned intermediary rule "A-", Preemption "B", Innovative liability theories "B-", Discovery "D" and Reducing overall litigation "F". 

In my view there are two weaknesses to their evaluation.  First, I am not so sure that innovative liability theories have really risen very much. I'd like to think more about this. But it is true as a general matter that lawyers will always think of innovative theories to move forward, so I can't imagine a world without innovative legal theories. Innovative legal theories are what make the law cool, especially for professors studying this fascinating field.  The question is whether they gain traction or not.

Second, their view on the increase of litigation sound a bit too much like defense side propaganda, not sufficiently grounded in facts.  I think what they mean is the increase in cases filed, but I'd like to see some actual numbers showing that cases have increased relative to the increase in the production and dissemination of medical devices or pharmaceuticals and the development of that market.  After all, if pleadings are tightening, the substantive law is tightening, then how can it be that cases filed are increasing?  Whatever one's opinion of plaintiff-side lawyers, they certainly aren't irrational.  I should note that relative to GDP, Marc Galanter has pretty conclusively proven that filing rates in general have not increased (actually decreased) of late.  Is something different in the products liability or medical device area?  If there is an increase of cases due to lawyer advertising, as they propose, is this necessarily bad?   More litigation is costly for defendants.  And its quite clearly bad for society in general (actually more than bad: terrible horrible no good very bad) in the cases where lawyers commit fraud or file frivolous claims.* But the mere fact that more people are gaining access to justice when they have been harmed doesn't seem to me bad for society. So I'd like to hear more about that too. Although I understand that taking the defense perspective, litigation is always per se bad, irrespective of the merits.

Overall I always learn something from reading their blog, so I would give it a high grade.  Although I would like to see a little more balance.


*There have been some egregious cases of lawyers filing claims that appear to be fraudulent (intrested readers may want to see Lester Brickman's work on this in the asbestos context, available in SSRN).  Such conduct must be punished, but it is not representative of all plaintiffs lawyers.

July 28, 2009 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 27, 2009

First Neurontin Trial: Mark Lanier for Plaintiffs, and Mark Cheffo and William Ohlemeyer for Pfizer

Article in Am Law Litigation Daily -- Mark Lanier Work His Magic in 'Very Tough' Neurontin Test Trial?, by Ben Hallman.  Mark Cheffo (Skadden) and William Ohlemeyer (Boies Schiller) will represent Pfizer.  Here's an excerpt:

Mark Lanier told the Litigation Daily on Friday that he's not expecting any miracles Monday, when he begins the first trial to test claims that Pfizer's antiepilepsy drug Neurontin increases patients' risk of suicide. He'll be lucky, he said, to eke out a win. "I've got a near-impossible case," Lanier told us. "If I lose, it's almost like a focus group educational experiment. If I win, it portends bad things for Pfizer."

The case, the first of some 1,200 Neurontin suits in the pipeline, was brought by the family of Susan Bulger, a 39-year-old who took the drug before hanging herself in 2004. The suit, in federal district court in Boston, claims Bulger was taking Neurontin to treat epilepsy, as well as mood swings and arthritis pain (for which the drug was not approved but was allegedly marketed). "Our argument is that the drug company took advantage of fragile and unfortunately situated [patients] by marketing a drug illegally," Lanier said. "They made Neurontin a snake oil to treat everything, when the FDA had not approved the drug for much of anything." (Sounds like Lanier was trying out his opening statement on us!)

UPDATE -- Here's a separate link to the detailed related article in Bloomberg -- Pfizer Faces First Trial on Neurontin Suicide Claim, by Margaret Cronin Fisk, Jef Feeley and Cary O’Reilly.


July 27, 2009 in FDA, Pharmaceuticals - Misc., Products Liability | Permalink | Comments (0) | TrackBack (0)