October 16, 2009
Bad news for Glaxo. The first trial involving claims that the antidepressant Paxil causes birth defects ended with a $2.5 million jury verdict for the plaintiff. The family of Lyam Kilker sued GlaxoSmithKline in Philadelphia Common Pleas Court, blaming the boy's heart defect on his mother's ingestion of Paxil during pregnancy. The jury, by a 10-2 vote, concluded that Glaxo negligently failed to warn of the risk and that Paxil caused the child's heart condition. While the jury awarded notably large compensatory damages (the family sought $1.2 million), it rejected punitive damages by deciding that the defendant's conduct was not "outrageous." The case is Kilker v. SmithKline Beecham Corp. dba GlaxoSmithKline. Here are links to reports at Philadelphia Inquirer, Pharmalot, Point of Law, and Law.com.
In addition to about 600 cases involving claims that Paxil causes birth defects, Glaxo has faced claims that Paxil increases the risk of suicide and homicide. The company has reportedly settled some suicide claims, and in 2001 a Wyoming jury rendered a $6.4 million verdict against Glaxo in a case involving a man who shot his family and himself after taking Paxil.
October 15, 2009
Teaching Civil Procedure
Recently law professors have been taking a critical look at how we teach civil procedure - one of my core topics and relevant to this blog. On Concurring Opinions, a discussion is going on between two civ pro professors about what we should teach in the civil procedure course. Jon Siegel (GW) has a great post on what it means to teach civil procedure and what it means to teach law more generally, written in response to some disparaging comments in previous posts but certainly able to stand on its own. Click this link to get there.
I agree with Jon about the overall project and think teaching students to memorize black letter law, however comfortable that may be for them (and relatively easy for us) is a mistake. The first reason is that to do so would be an invitation to malpractice. The rules change (this year - Rule 56, the calculation of time, Iqbal, next year - who knows?), so you need to know how to read, analyze and interpret rules, not just what they are. Furthermore, the rules are different in different jurisdictions (local rules anyone?) and litigators should be able to practice in state courts as well as federal. But we can't teach to the particular forum where any one individual is going to practice. Students need to know how to look up rules, what sources to use in interpreting them, to develop doctrinal facility with them and to know how to make policy arguments about them.
I like to introduce students to a wide variety of rules and doctrines so that when the partner they work for says "remittitur" they don't stand there looking at him like mackerel. But that passing familiarity is just one of the things I try to offer them. Its useful, but not the most important on my pedagogical hierarchy.
As for personal jurisdiction, the doctrine is a great avenue for teaching students not only the evolution of legal principles in response to changing times, but also how to synthesize a complex rule structure from a set of cases, to make policy arguments based on different interpretations of those cases, and what to do with plurality opinions. Some of this they will learn in legal writing, some they will learn in constitutional law, but really you can't get enough training in these skills. It is the begining of developing judgment, the most valuable asset a lawyer can have. You can do this in other ways, sure, but PJ happens to be a good way to do it too.
Finally, when I think back to law school the most valuable thing I learned for practice was how to make legal arguments using an "argument bite" approach and how to hang my policy arguments on a legal hook. That was how I developed the doctrinal facility that I used in practice and use in my research and writing today. I learned this skill in property class. I also happen to have memorized the rule against perpetuities, but today I cannot apply it. Argument bites, however, I've used them every day for more years than I care to admit. People intrigued by this can email me and I'll send a you citation to the relevant articles.
October 14, 2009
Which of these things is most like the others? The Reference Class Problem
The central requirement of the rule of law is equality before the law, which means that like cases ought to be treated alike. One of the fundamental problems to valuing cases is to determine what cases are alike under what measures such that its fair to say they are worth the same amount (or fair to say that in fact they are different).
The question of whether a group of cases are sufficiently alike that they ought to be similarly valued (or have similar outcomes along some other measure, such as causation) is referred to as the "reference class problem." I'm just going to focus on the question of value in this post. How do we decide what measurable criteria we are going to use to determine that some cases fall into the same categories? Should we worry that there are unmeasurable or subjective characteristics of particular cases that juries would consider but that cannot be accounted for in a statistical or qualitative social science model of valuation?
Edward Cheng (Brooklyn) purports to solve this problem in a recent essay in the Columbia Law Review. Click the link here for a summary of his ideas. I linked to his piece on SSRN previously (A Practical Solution to the Reference Class Problem). Unfortunately, even if we can make some progress under Cheng's theory, we must still balance the fit of the model to the data, and that means deciding which variables are "noise" and which are relevant, and accounting for what Donald Rumsfeld would call "unknown unknowns" - variables that we are not able to ascertain but that do end up being relevant. Cheng himself admits in the paper that it doesn't solve the extrapolation problem, which is our main concern in mass torts. On the other hand, I think Cheng has it right that we need to consider how rigorous social science methodology can help us solve these types of problems or at least move us a step closer to a solution that will satisfy the equality principle. He should be commended for moving us a step forward in that direction. I will have more on this in a forthcoming article.
(hat tip: Emily Wall, Columbia Law Review)
October 13, 2009
Advisory Jury Trials in FEMA Litigation
Plaintiffs' lawyers in the FEMA litigation arising out of the exposure of hurricane Katrina victims to fumes while they were living in government issued trailers have asked the court to conduct two "mock" non-binding summary jury trials. The first plaintiff's case to be tried ended in a defense verdict.
The idea is that these non binding trials would be summary proceedings - taking less than a day and costing a lot less than formal trials. The rules for the trials would be more relaxed as well. Juries would be told that their verdicts are advisory.
The AP article -- found here -- quotes plaintiffs' lawyer Gerald Meunier: "It’s a perfect fit,” said Meunier. “The cost of conducting bellwether trials is substantial for both sides.” The defendants are against the idea.
(Hat tip: Richard Arsenault).
As many of our readers know, I've written on bellwether trials (see my piece on SSRN). In that piece, I argued in favor of binding bellwether trials. I am currently working on an article about the uses of non-binding bellwether trials. In particular, is there a justification for conducting bellwether trials other than efficiency? As the quote from Meunier makes clear, if you think you are going to be settling cases on an aggregate basis then it makes sense from an efficiency perspective to conduct some kind of bellwether trial - either a full blown affaire or the more limited type of advisory trial that the plaintiffs are are proposing. But what about all the plaintiffs whose cases are not getting tried? How can we be certain that we are measuring the value of suits accurately? What about fidelity to the substantive law requiring individualized causation?
The truth is that there is no such thing as an "accurate" measure of a good for which there is no market such as the kinds of damages usually awarded in tort suits. We rely either on jury verdicts, which studies show have substantial variance, or on comparisons with other cases conducted by lawyers using essentially qualitiative analysis. But these are often based on a conveneince sample, that is, the sample of cases that is being analysed is not random and has a potential to be biased. Bellwether trials offer a way to value cases -- assuming the sample is chosen using social science methods -- and limit the biases inherent in the more anecdotal method of comparison. Then we can determine whether the variances in the distribution of the outcomes is such that we can draw conclusions from the bellwether trials or not.
More on this in a bit. ADL
October 12, 2009
Agent Orange in the News
The New York Times reports that the government has made it easier for veterans claiming to be suffering from diseases caused by agent orange to file claims. See here: Door Opens to Health Claims Tied to Agent Orange.