TortsProf Blog

Judge Requests Mass Tort Status for New Jersey Birth Control Suits

New Jersey Judge Donald Volkert Jr. has requested mass tort status for the products liability suits involving the birth control pills Yaz, Yasmin and Ocella.  In his request to the Administrative Director of the Courts, Judge Volkert noted the large number of these cases already pending in NJ state courts, as well as the consolidation of pending federal suits into a federal MDL in Illinois.   The NJ Law Journal (via law.com) has more. 

- SBS

Personal Injury Roundup No. 57 (11/6/09)

Reform, Legislation, Policy

• San Franciso City Attorney does FDA's job? Kellogg's withdraws "immunity banner" from sugary cereals following letter demand from City Attorney.  (TortsProf, The Atlantic).
• Senators Graham and Chambliss propose "loser pays" rule.  (Torts Prof, Atlanta Journal Constitution, Pop Tort)
• Health care reform bills include sunshine provisions regarding relationships between doctors and drug companies.  (NY Times)
• FDA issues draft guidance on what constitutes a tobacco product "ingredient." (FDA Law Blog)
  

New Lawsuits

• Robber can sue store he robbed for injuries sustained in robbery.  (CBS Crimesider, MSNBC/AP)
• Family of Connecticut woman injured by neighbor's chimp seek permission to sue state.  (BBC)
• Parents of deceased college sophomore sue for Clark Atlanta University for lack of security.  (Atlanta Journal Constitution)
• Family of Texas student files suit against fraternity for hazing that allegedly caused son's death.  (Fox Houston)
• Chicago deli sued over turkey sandwich.  (Jonathan Turley)

Trials, Settlements and Other Ends

• Radio station liable in "Hold your Wee for a Wii" contest.  (Injured)
• Jury awards $2.5 million in Baltimore lead paint case.  (Bernabe)

Appeals

• IL Supreme Court on subsequent remedial measures.  (TortsProf)
• Texas Supreme Court on damages in legal malpractices actions.  (Day on Torts)
• Florida appellate court reverses accutane verdict for lack of causation evidence.  (Mass Tort Defense)

Damages

• A win and a loss for Pfizer on Preempro punitive damages. (Cal Punitive Damages)
• Oregon Supreme Court hears oral argument in tobacco punitive damages case.  (Cal Punitive Damages)

Miscellaneous

• Texting while driving - NY Times interactive game shows how your reaction times slow.

--SBS

Monday's Guest Blogger: John C.P. Goldberg

 

John Goldberg is Professor of Law at the Harvard Law School.  From 1995 until 2008, he was a faculty member of Vanderbilt Law School, where he served as Associate Dean for Research (2006-08). Professor Goldberg is an author of a leading tort law casebook, Tort Law: Responsibilities and Redress, now in its second edition. He has also published more than 30 articles and essays. A member of the editorial board of Legal Theory and a senior editor of the Journal of Tort Law, he is serving in 2009 as Chair of the Torts and Compensation Section of the Association of American Law Schools.

After receiving his J.D. in 1991 from New York University School of Law, Professor Goldberg clerked for Judge Jack Weinstein of the Eastern District of New York and for Supreme Court Justice Byron White. He earned his B.A. with high honors from the College of Social Studies, Wesleyan University. He also holds an M. Phil. in Politics from Oxford University and an M.A. in Politics from Princeton University. 

An expert in tort law, tort theory, and political philosophy, Professor Goldberg is probably best known for his creation and espousal, with Professor Benjamin Zipursky (guest blogging on November 23!), of the "civil recourse" theory of torts.

--CJR

Senators Graham & Chambliss Introduce "Loser Pays" Legislation

United States Senators Lindsey Graham (R-SC) and Saxby Chambliss (R-GA) introduced legislation on Monday that would require the loser to pay the winner in some medical malpractice suits. 

The Fair Resolution of Medical Liability Disputes Act of 2009 would require initial nonbinding arbitration for med mal claims prior to going to court.  Either party could reject the arbiter's decision and proceed to trial.  However, by so doing, the loser-pays mandate is activated.  If the court judgment is less favorable than the arbiter's decision for the party rejecting the arbiter's decision, the rejecting party must pay the opponent's attorney's fees from the date of the arbiter's decision.  There is an exception if the court finds such payment would be "unjust."  The goal is to reduce the number of "frivolous" lawsuits.  The story, courtesy of the Charleston Regional Business Journal, is here.

--CJR

A European Symposium on Guido Calabresi

Larry Solum at Legal Theory Blog is reporting about a symposium dedicated to the work of Guido Calabresi.  Here are the papers:

Roger van den Bergh (Erasmus University Rotterdam (EUR) - Erasmus School of Law), Introduction: The Impact of Guido Calabresi on Law and Economics Scholarship (Erasmus Law Review, Vol. 1, No. 4, 2008)

Roberto Pardolesi and Bruno Tassone (Libera Università degli Studi Sociali (LUISS) Guido Carli), Guido Calabresi on Torts: Italian Courts and the Cheapest Cost Avoider (Erasmus Law Review, Vol. 1, No. 4, 2008)

Claus Ott and H-B. Schafer, The Dichotomy between Property Rules and Liability Rules: Experiences from German Law (Erasmus Law Review, Vol. 1, No. 4, 2008)

Ben Depoorter (University of Miami - School of Law), Property Rules, Liability Rules and Patent Market Failure (Erasmus Law Review, Vol. 1, No. 4, 2008)

Michael G. Faure (University of Maastricht - Faculty of Law, Metro), Calabresi and Behavioural Tort Law and Economics (Erasmus Law Review, Vol. 1, No. 4, 2008)

--CJR

Iowa Supreme Court on Subsequent Remedial Measures

The Iowa Supreme Court recently addressed the subsequent remedial measures doctrine.  Under this evidentiary rule (adopted in Iowa and other states), evidence of subsequent remedial measures cannot be used to prove negligence but can be used to prove strict liability.  The court held "that evidence of subsequent remedial measures, which a party seeks to introduce in an action based on a design defect claim, a failure to warn claim, or a breach of warranty claim brought under either theory, is not categorically exempt from exclusion . . . because these claims are not strict liability claims. Instead, trial courts must analyze the reason a party seeks to admit such evidence. . . . "  

A copy of the opinion is available here.   More on this decision from Mass Tort Defense. 

- SBS

San Francisco vs. Snap, Crackle & Pop

  San Francisco's City Attorney has sent a warning letter to the Kellogg Food Company about the big "Now Helps Support Your Child's Immunity" banner on its Rice Krispie's cereals.   The City Attorney expresses concern that the "Immunity Claims may mislead parents into believing that serving this sugary cereal will actually boost their child's immunity," and asks Kellogg's to provide evidence substantiating the claims. 

A copy of the letter is available here (pdf), and you can read more in The Atlantic.

Thanks to Tony Sebok for the heads-up on this one.

- SBS

Solicitor General's Views Sought in Alien Tort Statute Case

The SCOTUSBlog has the relevant links.  The issue:

Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.

(Note: I initially titled this as a cert. grant.  It wasn't.)

--BC

Sex Offenders, Disclosure, and Tort Law

Shelley Ross Saxer (Pepperdine) has posted to SSRN 'Am I My Brother's Keeper?':  Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity.  Here is the abstract:

Under common law principles, landowners do not have a duty to protect or warn others against the criminal activities of others that occur on their premises. However, the modern trend in tort law has been to hold landowners liable for injuries occurring on their premises if the criminal activity is reasonably foreseeable and, in some jurisdictions, also imminent. While quite a bit of case law has developed over recent years as to a landowner’s liability for criminal acts that have occurred on the premises, a landowner’s liability for failing to disclose potential harm from criminal activity to prospective tenants or property buyers has not been established. It has also not been established whether a landlord has the duty to screen prospective tenants to protect other tenants from criminal behavior or a duty to work other tenants of known criminal propensities of an existing tenant. Finally, it is not clear whether a landlord or landowner may refuse to rent or sell to a particular individual or disclose concerns about the criminal propensity of certain individuals to other tenants or property owners without being subject to tort liability or violations of fair housing act statutes.

This Article explores the landowner liability issues of whether to disclose or warn others about future criminal activity that might occur on the premises in the future. Part II describes the historical development and recent trends in tort law of premises liability for the criminal acts of others. Part III addresses the issue of whether landowners have a duty to disclose or warn of premises susceptibility to criminal acts. Megan’s Law legislation, dealing with community notification about the presence of convicted sex offenders, raises a particular troublesome disclosure issue. Part IV examines landowner liability for refusing to rent or sell to individuals with criminal backgrounds or for disclosing to others the criminal propensity of a third party. The Article concluded by suggesting that landowners who are aware of reasonably foreseeable criminal activity against occupiers of their premises should have a duty to disclose this information to either prospective or existing occupiers, particularly when there is a potential danger of harm to children.

--CJR

Personal Injury Roundup No. 56 (10/30/2009)

Happy Halloween!  In our house, we'll have Susan B. Anthony and a drowned sailor.  Yours?

Reform, Legislation, Policy

• Did you see the guest post on tort law and climate change?  You should.  (TortsProf) 
• Alien Tort Claims Act claims continue and expand (Consumer Class Actions & Mass Torts)

New Lawsuits

• Injured by a stripper pole, sues (Above the Law)
• Actress sues social worker for son's death, alleging advice to stop seizure meds was negligent (PostChronicle.com)
• Allegedly defective underwear suit (Above the Law) 
• New suit in bridge closing during Katrina aftermath (Nola.com) 
• Sports commentator Sean Salisbury sues Deadspin.com for defamation (Dallas Observer, Deadspin's gallery, e-mails from Salisbury to Deadspin's editor)

Trials, Settlements and Other Ends

• No verdict as of this writing (Thursday midday) in the "Hold Your Wee for a Wii" case, but the jury did ask for a 10-digit adding machine, which can't make the defense feel real good (Sacramento Bee)  Update: The jury awarded $16.6 million in damages (Radio-Online.com)
• Punitive damage award in PremPro case remains secret (Bloomberg) 
• Butler University drops defamation student against student who blogged anonymously (Inside Higher Ed)
• Bat maker liable for ball player's death (Overlawyered)

Appeals

• Nevada considers pharmacy liability for harm caused by customers (WSJ Law Blog)
• That reminds me of the Massachusetts case from last year on doctor liability for patients driving negligently while under treatment; here's a good look at that (NEJM)

Miscellaneous

• Priest's file remains sealed despite his conduct being the subject of a new abuse lawsuit (First Amendment Center) 
• How to avoid a Halloween lawsuit (Article Alley)

--BC

Aluminum Bat Verdict: $850,000

A jury in Montana found the manufacturer of Louisville Slugger aluminum bats liable for failure to warn adequately in the death of an 18-year-old. (NYT) (Maryland Injury Lawyer Blog)

--CJR

Top 10 Recent SSRN Torts & Products Liability Downloads

Here are the top torts and products liability papers announced on SSRN within the last 60 days:

Rank	Downloads	Paper Title
1	71	Structured Settlements and Single-Claimant Qualified Settlement Funds: Regulating in Accordance with Structured Settlement History Jeremy Babener, New York University School of Law, Date posted to database: September 19, 2009
2	54	Clarifying Causation in Tort Erik S. Knutsen, Queen's University Faculty of Law, Date posted to database: August 15, 2009
3	53	Malpractice Standards of Care and Regional Variations in Physician Practice Styles Michael Frakes, Harvard Law School, Petrie-Flom Center, Date posted to database: October 20, 2009 Last Revised: October 20, 2009
4	50	The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums Ronen Avraham, Leemore S. Dafny, Max M. Schanzenbach, University of Texas at Austin - School of Law, Northwestern University - Department of Management & Strategy, Northwestern University - School of Law, Date posted to database: August 2, 2009
5	46	Symposium: Third Restatement of Torts: 'Expanding Liability for Negligence Per-Se' Ariel Porat, Tel Aviv University, Date posted to database: July 25, 2009
6	46	A New Conflicts Restatement: Why Not? Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: August 6, 2009
7	36	Agency and Luck Joseph Raz, Joseph Raz, University of Oxford - Faculty of Law, Columbia Law School, Date posted to database: October 13, 2009
8	34	The Impact of Tort Reform on Intensity of Treatment: Evidence from the Heart Patients Ronen Avraham, Max M. Schanzenbach, University of Texas at Austin - School of Law, Northwestern University - School of Law, Date posted to database: August 2, 2009
9	34	The Common Core Sound. Short Notes on Themes, Harmonies and Disharmonies of European Tort Law Marta Infantino, Mauro Bussani, Franz Werro, University of Trieste School of Law, University of Trieste School of Law, Georgetown University - Law Center, Date posted to database: August 15, 2009
10	32	The Effect of Universal Health Insurance on Malpractice Claims: The Japanese Experience J. Mark Ramseyer, Harvard University - Harvard Law School, Date posted to database: September 30, 2009 --CJR

Frakes on the Incentive Effects of Medical Malpractice Standards of Care

Michael Frakes (Harvard) has posted to SSRN Malpractice Standards of Care and Regional Variations in Physician Practice Styles.  Here is the abstract:

Physician practices vary in a striking and persistent manner across different regions of the United States. In this paper, I explore the association between regional variations in physician behavior and the geographical scope of the standards of care to which physicians are held in malpractice actions. Malpractice laws that require physicians to comply with the standards set by local physicians may help to perpetuate divergent practice patterns. The adoption of laws requiring physicians to comply with national standards of care, on the other hand, may lessen regional disparities by inducing physicians to practice closer to the national mean. Over time, most states have come to modify their malpractice laws in this latter direction. Drawing on this rich set of legal variations and using data on physician behavior from the 1977-2005 National Hospital Discharge Surveys, I test for evidence of convergence in state utilization rates towards national rates as states abandon the use of “locality” rules in favor of national standard-of-care laws. Focusing on obstetric practices, I document robust evidence of convergence in cesarean section utilization, whereby as much as 40-60% of the gap between state and national cesarean rates is closed upon the adoption of a national-standard rule.

--CJR

Food Industry Drops "Smart Choices" Labeling

On the heels of the FDA's letter to industry noted in Friday's Round-Up, food companies have halted the "Smart Choices" labeling program, which puts a green check mark on the front of packages to indicate that the product is a "smart choice."

The New York Times and Reuters both have more.  UPI also has coverage. 

- SBS

South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million

Sometimes it is better to wait on the sidelines... South Carolina did not participate in the collective suit by 32 states against Pfizer for its off-label marketing of the anti-psychotic drug, Zyprexa.   If South Carolina has joined that suit, it would have received around $4.5 million.   Instead, it brought its own lawsuit and now reports a $45 million settlement with Pfizer.  The Post and Courier has more. 

As of September 30th, Legal Newsline reportedthree additional Zyprexa cases remained pending:  Mississippi before Judge Weinstein; Arkansas and Pennsylvania in state court. 

- SBS

Guest Blogger Adam Scales: Tort Law and Climate Change

I have always been a little uncomfortable with the purported distinction between "public" and "private" law, as applied to Torts.  By the second half of the 20th Century, the aspirations of tort law were certainly public-regarding, aimed not just at righting fractures among a small set of individuals, but laying guidelines for proper conduct in a society that, as the California Supreme Court dystopically suggested in Tarasoff, had become "crowded[,] computerized" and "risk-infested".

Yet, reading a recent decision of the Fifth Circuit prompts one to think carefully about the private/public border in tort cases.  The decision is Comer v. Murphy Oil, et al., decided two weeks ago.  The case was filed by property owners living along the Mississippi Gulf Coast who suffered losses as a result of Hurricane Katrina.  Those losses, they allege, are traceable to the tortious conduct of domestic U.S. energy and chemicals firms that emit greenhouse gases.  By contributing to global warming, this conduct worsened the severity of Hurricane Katrina, and exacerbated (or perhaps caused entirely) plaintiffs'  property damage.  The plaintiffs seek class action status.

The Fifth Circuit overturned a District Judge who found that the plaintiffs lacked standing, and were further barred by the political question doctrine.  In language that would be familiar to students of Boomer v. Atlantic Cement, or a number of products liability cases and analyses over the years, the District Judge viewed the litigation as "a 'debate' about global warming", and regarded the requisite technical and political judgments needed to settle the respective rights of emitters (and facilitators of emissions), and property owners (undoubtedly themselves emitters as well)  as lying beyond the remit of the judiciary.

The opinion is only about tort law in a literal sense: standing and justiciability concerns supply the frame for a portrait of alleged intentional and negligent invasions that remains to be drawn. Distinguishing between claims to prevent future harm, and claims - as presented in Comer - to redress past injury, the Fifth Circuit characterized the action as a common-law action asserting private rights, which does not ordinarily trigger standing concerns.  To the extent that standing nonetheless requires that the alleged harm be "fairly traceable" to the challenged conduct, that was met by the essential story described above:  Defendants' emissions cause global warming, which leads to higher sea levels and increased hurricane activity, culminating in plaintiffs' injuries.  Though the court was careful to observe that this alleged causal chain might not suffice to establish proximate causation on the merits, the merits of the case were not before it.  Judge Davis concurred, suggesting that he would have dismissed the case on proximate cause grounds.   The defendants made this traditional, tort-based argument for dismissal at the trial level, but the Fifth Circuit left that to be developed after remand.

Like Judge Davis, I wish they had taken this issue up (though perhaps certification to the Mississippi Supreme Court, rather than an unadorned Erieguess, is the best outcome procedurally).  I have profound reservations about the claim, implicit in nominally private climate change litigation, that the tort system is capable of specifying rights and responsibilities on the subject of global warming.  I like to tell my students that we have a tort system designed for horse-and-buggy accidents.  In fact, this is unduly generous.  The tort system cannot even handle simple car accident cases without tremendous delay and inefficiency - and this is with the assistance of a claims-settling insurance bureaucracy that pre-determines the vast majority of outcomes.  

As tort law's scope expanded during the 20th Century, the nature and complexity of tort claims changed.  Now, it is not unusual for claims to involve precise questions of epidemiology (toxic torts), and polycentric interests (competing claims for product warnings, for example).  The tort system is not designed for, and probably will never handle well, these sorts of injuries.  The system is necessarily biased toward discrete and limited injuries; in even the simplest cases, it of necessity excludes from consideration large swathes of stakeholders in the name of - to borrow a term - justiciability.  Structurally, it is not ideal, and is in fact quite ill-suited, for adjudicating entitlements among many parties offering competing claims for the mantle of "the public interest". If I were writing these words in 1975, they would be just as true.

Writing them in 2009 raises as well an entirely different objection to the use of tort law here.  Tort law has been in retreat for decades.  Courts are not fashioning new duties at the heady clip seen in the 1960s and 70s.  Rather than dramatically rewrite tort law, which is rather difficult to do, courts have recoiled from its earlier excesses by trimming doctrine at the margins.  A question of proximate cause, which once may have served as an open-ended invitation to search for a just outcome, is more likely today to be used restrictively to deny claims, thus nudging future potential parties towards private or political resolutions of their disputes.  Today's tort system, to anthropomorphize a bit, no longer sees itself as wide-ranging arbiter of social conduct, faithful only to its own ideas about justice.  Of course, in main operation, the tort system never quite looked that way, but there was a time when its broadest aspirations reached far beyond the quotidian categories of harm that had long been uncontroversially settled.

It is thus a little surprising to see climate change activists so hopeful about reliance on today's tort law, as opposed to the tort law of a few years ago.  Tort law tends to rise and fall with the political winds; perhaps climate change action will strike judges (who shrink from charges of judicial activism), juries (decreasingly sympathetic to plaintiffs, and fed a diet of "crazy tort stories" in the media) and legislators (who have not been shy in recent years about pre-termitting disfavored tort claims on behalf of important economic interests) as so urgent that it will constitute an exception in this era of retrenchment.  I don't think that is likely, and I hope it doesn't happen.  It is questionable whether any political system is capable of marshaling the extravagantly complex and overdetermined series of relationships that drive global emissions into an effective consensus for change.  I am fairly certain, however, that the small, inwardly-focused, intuitive, largely undemocratic cross-section of the political system that is tort law is not up to the task.

 

--Adam Scales

Associate Professor of Law

Washington & Lee University School of Law

 

 

 

Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

2009 Kansas Law Review Symposium
Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

October 30, 2009
Green Hall, 1535 West 15th Street, Lawrence, Kansas 66045

This Symposium explores the state of aggregate justice one decade after the Supreme Court issued guidance on the boundaries and meaning of the federal class action rule in Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).  While the complexities of mass litigation and the demand for aggregate solutions persist, the world hardly has remained static since those decisions:   Federal Rule 23 itself has been amended, Congress has enacted the Class Action Fairness Act and, most recently, the American Law Institute has promulgated its Principles of Aggregate Litigation.  And beyond those obvious game-changers lie more subtle trends and complications. 

The renowned set of speakers participating in the Symposium will reflect on the lingering impact of Amchem and Ortiz.  They will address timely and intriguing topics such as the ethical challenges inherent in mass settlements, the enduring vitality of the punitive damages class action, the empirical evidence of a shift from federal mass tort class actions to multidistrict litigation, the availability of collateral attack based on the adequacy of class representation, the impact of CAFA on state class actions, the disparities between federal and state class actions, and the very nature of cohesiveness in litigation.

Speakers

Elizabeth Chamblee Burch, Assistant Professor of Law, Florida State University College of Law:  “Aggregation, Community, and the Line Between”

   

Howard M. Erichson, Professor of Law, Fordham University School of Law: “The Trouble with Defendants’ Insistence on Comprehensive Settlements”

     

Steven S. Gensler, Welcome D. and W. DeVier Pierson Professor of Law, University of Oklahoma College of Law: “The Other CAFA Effect: State-Court Class Actions after the Resettlement Plan”

 

Laura J. Hines, Professor of Law, University of Kansas School of Law: “The State of State Class Actions”

 

Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy, University of Texas School of Law:  “Nine Lives: The Punitive Damage Class”

 

Tom Willging, Senior Researcher, Federal Judicial Center: “From Classes to Multidistrict Consolidations: Documenting Some Shifts in Aggregate Mass Tort Litigation after Ortiz”

 

Patrick Woolley, Beck, Redden & Secrest Professor, University of Texas School of Law: "The ALI and the Adequate Representation Requirement”

Attendance is free and no reservations are required. CLE credit will be offered at this event pending approval.

For more information, please contact Symposium Editor Shane McCall: shane@ku.edu.

You also can download a copy of the symposium brochure for more info.

 

- SBS  

Personal Injury Roundup No. 55 (10/23/09)

Happy Fall to all our readers. . . here's what happened this lovely fall week in the world of torts. 

Reform, Legislation, Policy

• FDA issues a "letter to industry" that the agency will take enforcement action aginst false or misleading package information (such as implied nutrient claims).  (Food Law Prof, FDA Law Blog, ABC News, WaPo) 
• Committee action on OSHA nominee postponed.  (Point of Law)
• GAO finds FDA slow in banning researchers convicted of fraud.  (NY Times, Pharmalot)
• Bi-partisan support for bill that would give FDA new powers over food supply.  (LA Times)
• Senators introduce Dairy Country of Origin Labeling Act.  (Supermarket News)

New Lawsuits

• MDL created for Zicam lawsuits.  (Mass Tort Defense)
• 200 patients sue Cedar Sinai over excessive radiation exposure.  (Daily Breeze, About Lawsuits)

Trials, Settlements and Other Ends

• California federal district court dimisses putative consumer fraud class action concerning defective Sears washing machines.  (Mass Tort Defense)
• Jury awards $105 million to NYC in Exxon MTBE case.  (Point of Law, About Lawsuits)
• Defamation suit against alleged Autoadmit harassers settles.  (Brian Leiter, ABA Journal)
• Defamation suit against Target settles.  (Turkewitz)

Appeals

• Alabama Supreme Court reverses multi-million dollar fraud judgment against drug companies.  (TortsProf)
• Massachusetts Supreme Court recognizes medical monitoring cuase of action. (TortsProf, Drug & Device, Point of Law)
• Maryland Court of Appeals bars expert testimony in med-mal case because expert spent more than 20% of his time just testifying.  (Bernabe)
• Fifth Circuit allows suit by Katrina victims alleging the defendant oil and coal companies created greenhouse gasses, which caused global warming, which then caused a rise in sea levels, adding to Hurricane Katrina’s ferocity. (WSJ Law Blog, Russell Jackson, ABA Journal)

Miscellaneous

• First ever contest at Consumer Class Actions and Mass Torts Blog - there's even a prize. 

--SBS

Monday's Guest Blogger: Adam Scales

Adam F. Scales is an Associate Professor of Law at Washington & Lee University School of Law.  He graduated, Phi Beta Kappa, with a B.A. from the University of Massachusetts in 1991 and received his J.D. from the University of Michigan in 1993.  Professor Scales was admitted to practice in Minnesota; he served as an associate at Faegre & Benson in Minneapolis during 1994-95.  He was a law clerk to Judge Michael J. Davis and Judge David S. Doty at the U.S. District Court for the District of Minnesota in 1996.  In 1996-97, he clerked for Judge Robert G. Renner, Senior U.S. District Judge for the District of Minnesota. Professor Scales began his career in the academy as Assistant Professor of Law, Washington & Lee University in 1997, a position he held until he was promoted to Associate Professor in 2003.  He has served as Visiting Professor of Law at the University of Connecticut School of Law, as well as Chair of the Association of American Law Schools Section on Insurance Law.

Professor Scales's scholarship focuses on insurance law.  He has been a national commentator on topics such as a market in tort claims, insurance litigation in the wake of Hurricane Katrina, the settlement of the Virginia Tech massacre claims, and the crash of AIG.

--CJR

AL: Pharmaceutical Companies Did NOT Cause State to Over-Reimburse

On Friday, the Alabama Supreme Court reversed multi-million dollar trial-court judgments against pharmaceutical companies that had allegedly caused the state to over-reimburse pharmacies and physicians for the medicines they provided to Medicaid patients.  Even though the pharmaceutical companies were not directly reimbursed, it was alleged that they received indirect benefits by boosting their market share.  The court concluded:

The State failed to produce substantial evidence that it reasonably relied on the misrepresentations and/or fraudulent suppression it alleged AstraZeneca, GSK, and Novartis engaged in in these cases.

A copy of the opinion (pdf) is here:  Download GSK Full Opinion[1].  

This is another case in which a state AG used outside counsel to sue an industry for a violation based in tort law.  This decision comes as the National Association of Attorneys General is considering whether to place limits on the ability of a state AG to hire outside counsel in search of funds for the state.

Thanks to Mark Behrens for the tip.

--CJR