Sunday, April 30, 2006
Point of Law notes that federal non-asbestos products filings are rising (from around 6,000 in 1995 to around 29,000 in 2005) as a response to claims that tort claims more generally are falling. Of course, tort law is largely a state matter (with diversity cases and, now, CAFA moving many cases to the federal courts).
So what do we know about state filings?
While it's not as specific as the federal data are (PoL cites non-asbestos products cases, which I agree represent a useful metric - probably more useful than just tort cases), we can also look at some state data.
In 29 states, there were just shy of 571,000 tort cases in 1994 and just over 542,000 in 2003; given population trends, that is clearly a drop. That said, the NCSC does not appear to provide a way to break it down further into, for example, non-asbestos products cases, so I'm not sure at this point what smaller trends it may reflect.
[Update: Ted has updated the PoL post to acknowledge the state law role in tort litigations, so some of the above doesn't make sense.]
LAT has a story about the FDA, simultaneously showing an agency in disarray and continuing with its daily business. Plan B's approval (or lack thereof) is identified as the wrench in the works, causing (and along with) the lack of a confirmed director. It's worth a read.
(Blogging may be a little slow while I work on drafting exams.)
Saturday, April 29, 2006
Friday, April 28, 2006
Thursday, April 27, 2006
To: Everyone Who Sells Stuff For Kids
From: Bill Childs, TortsProf Blog
Re: Lead in Toys
I know, you're busy coming up with new cheap shiny things for my daughter to say she needs as we wander the store. But I've noticed a bit of a trend in the few short months I've subscribed to the CPSC's recall mailing list.
So I have some advice that might seem kinda obvious, but evidently it comes as a surprise. It's pretty simple:
Stop selling stuff for kids with high levels of lead. That includes:
That's five lead jewelry recalls in three months.
So stop that. Okay? Thanks.
P.S. Oh, and Selected Trading, if you know the recall notice is going to tell people to go to your website for more information, put some information about the recall on your website. Duh.
(No mention of the recall on the Selected Trading site as of 4:15 EST 4/27/06 -- see SelectedTradingCorporation.pdf.)
(Edit: Howdy, Consumerist readers!)
A student pointed out the Sunshine in Litigation Act, introduced originally in 2003 and again in 2005 by Senator Kohl (D-WI). (I think that link will work; if not, it's S. 1348 in 2005.) The goal of it appears to be to narrow the scope of protective orders and to reduce the use of confidentiality agreements in settlements. The key part:
(a)(1) A court shall not enter an order under rule 26(c) of the Federal Rules of Civil Procedure restricting the disclosure of information obtained through discovery, an order approving a settlement agreement that would restrict the disclosure of such information, or an order restricting access to court records in a civil case unless the court has made findings of fact that--
`(A) such order would not restrict the disclosure of information which is relevant to the protection of public health or safety; or
`(B)(i) the public interest in the disclosure of potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information or records in question; and
`(ii) the requested protective order is no broader than necessary to protect the privacy interest asserted.
Some of the discussion of this that I've seen has been in the context of products suits in particular (see this Paxil discussion), suggesting that it will increase the information available to the public. I'm certain that's true but I suspect it is less so than some might predict -- at least in the fairly significant cases, the bad documents get out relatively early -- no later than the first trial. The secret settlement provisions may make a difference in those cases where it's a one-off case -- i.e., where nobody ever goes to trial -- but those are not so much the ones that are getting the attention.
Hawaii is getting on the bandwagon of changing med mal provisions in a non-continguous-state way. The bill being proposed would:
» Place a $500,000 cap on noneconomic damage awards in medical tort actions against obstetricians, obstetrician-gynecologists and trauma care providers.
» Establish a sliding scale for attorney's fees based upon the judgment or settlement.
» Eliminate joint and several liability for economic damages.
» Allow joint and several liability for noneconomic damages where a health-care provider's degree of negligence is 25 percent or more.
* * *
Malpractice insurance premiums for some specialists are as high as $60,000 to $100,000 a year, Insurance Commissioner J.P. Schmidt said recently.
Schmidt and other tort-reform advocates point to California's Medical Injury and Compensation Reform Act, which they say has stabilized its legal system, reduced medical malpractice premiums and made them more predictable.
Bert Sakuda . . . and Robert Toyofuku, who represents the Consumer Lawyers of Hawaii, have been major opponents of tort reform.
"The emphasis seems to have always been on the legal system, attorneys and insurance over these past years," Toyofuku testified at the last House hearing on the bill. "The emphasis should be on the injured patients, the medical system and what is causing medical errors, medical malpractice and injuries to patients."
Toyofuku contends caps on noneconomic damages "are unfair, arbitrary and unnecessary" and that tort reform does not significantly reduce premiums.
He also notes that the number of medical malpractice claims filed in Hawaii fell from 173 in 2001 to 105 last year. Tort-reform supporters say while fewer claims are filed, the awards are larger.
Wednesday, April 26, 2006
An LAT opinion piece advocates for publicly-funded research though not to the exclusion of private research.
What's needed is a new Institute for Effective Medicine, which would need to be modeled on the Federal Reserve Board or the Securities and Exchange Commission to protect it from political pressure. Its mission would be threefold. It would serve as a new, independent source of research dollars for medicine. It would provide independent evaluation of data generated by industry. And it would oversee the creation of clinical practice guidelines, a manual of proven "best practices" for physicians devised entirely without industry influence.
(Thanks to my colleague Katharine Van Tassel for the pointer.)
The Nation this week has a lengthy piece on the use of private security contractors in Iraq, in particular focusing on the deaths of four employees of Blackwater. Much of it centers around a lawsuit filed by the families of four Blackwater employees killed on March 31, 2004 when they got lost in Falluja, and what their attorney alleges was a profit-motivated decision to provide non-armored vehicles.
In late 2004 the case caught the attention of the high-powered California trial lawyer Daniel Callahan, fresh from a record-setting $934 million jury decision in a corporate fraud case. On January 5, 2005, the families filed the lawsuit against Blackwater in Wake County, North Carolina. "What we have right now is something worse than the wild, wild west going on in Iraq," Callahan says. "Blackwater is able to operate over there in Iraq free from any oversight that would typically exist in a civilized society. As we expose Blackwater in this case, it will also expose the inefficient and corrupt system that exists over there."
The lawsuit, and the story, both provide a useful look at both the complications of using private contractors and, relevant to the purposes of this blog, at how civil litigation can provide not just recourse but also information.
Tuesday, April 25, 2006
Here are the details of this AEI event. Registration is closed, but there will be a webcast.
Once-esoteric questions involving the federal preemption of state law (especially state tort law and consumer protection statutes) have become the subject of a contentious public debate. Consumer advocates, plaintiffs' attorneys, and state officials argue that broad federal preemption claims--often by federal regulatory agencies and without a clear Congressional mandate--interfere with the states' historic role in protecting citizens against corporate misconduct. Corporations and federal agencies respond that preemption is often the only viable safeguard against unwarranted state interferences with the national economy. Aggressive trial lawyers and attorneys general, they say, upset carefully crafted regulatory compromises at the federal level. Preemption disputes along these lines have become a focal point of political debate and judicial decisions in a wide range of regulatory arenas, including financial regulation, automobile safety, clean-air laws, the regulation of telecommunications, energy, and other network industries, securities law, consumer products standards, pharmaceutical drugs, pesticides, outboard motors, and mattresses.
In all these areas, billions of dollars hang on regulatory nuances and arcane points of legal interpretation. But the preemption debate is being waged in the context of broader, sometimes constitutional, arguments and presumptions concerning the role and utility of federalism and “states' rights” in a modern, highly mobile, and integrated economy. Legal scholars are sharply divided both over the substance of those arguments and the extent to which they should dominate economic considerations or statutory language in what is, after all, a large universe of highly particular, industry- or area-specific preemption arrangements. Most scholars agree, however, that preemption law--especially the federal courts' muddled doctrine in this field--merits a serious re-examination.
AEI's two-day conference, organized by Richard A. Epstein of the University of Chicago Law School and Michael S. Greve, the John G. Searle Scholar at AEI, will provide a forum for such re-examination. Leading legal scholars and practicing attorneys will discuss in panels various facets of preemption law, including its constitutional backdrop; its trajectory over the past two centuries; its present contours and economic implications in such areas as network industries, environmental law, financial and securities regulation, and pharmaceuticals; and its prospects in light of recent developments in Congress, regulatory agencies, the states, and the courts.
The alleged problem with sunscreen marketed today (earlier post) is its failure to fully block UVA. Apparently a product exists that will, in fact, block UVA, but it is not yet approved, according to one columnist and this ABC story.
Interestingly, L'Oreal's meroxyl website doesn't identify any FDA issues and in fact asserts that meroxyl has been in its products since 1993. This NYT story (from a blog's excerpt), as the original is archived) indicates that L'Oreal is working with the FDA.
Monday, April 24, 2006
An interesting effort to remove some politicization from science in government.
Tucked inside the current funding bill for the Department of Health and Human Services is a little-noticed provision that regulates how the department handles science and scientific advice. None of the money in the bill can be used "to disseminate scientific information that is deliberately false or misleading," the provision says. And the department cannot ask candidates for its scientific advisory panels to disclose their political affiliation or voting history.
The effort is termed part of a response to what is perceived to be a hostility to science in the Bush administration.
I've been thinking for a while about how one might frame an alternative to traditional tort reform efforts as part of the same response -- focusing efforts on improving the use (and reducing the abuse) of science in tort litigation.
My view from work on the defense side in pharmaceutical tort litigation was that many of the most problematic claims would have been eliminated if there was a real filter on expert testimony -- so that, for example, local doctors with no relevant background or experience wouldn't be testifying about FDA regulations, or so that theories without an iota of support in the literature or the proof in the case wouldn't be presented. If you knock those claims out, the problems of inventory settlements get much smaller.
"Tort reform for liberals," one might call an approach trying to give teeth to the evidentiary rules (I almost said hurdles, but hurdles with teeth is an unpleasant image), and it could be framed as a way of having all aspects of government be evidence-based. Such an approach might be more appealing to people like me, who are skeptical of the need for, value of, or fairness of things like caps on damages, but who are also significantly concerned about the way mass torts in particular play out, with unimpaired plaintiffs driving the bus.
Disorganization, bureaucratic infighting and an inability to force drug makers to conduct needed safety tests have undercut efforts at the Food and Drug Administration to uncover drug dangers, government auditors say.
And a quote from Curt Furberg, who, though the story doesn't note it, has also served as a paid plaintiffs' expert in pharmaceutical litigation:
"I think the report is terrific," said Dr. Curt Furberg, a professor of public health sciences at Wake Forest University School of Medicine. "The F.D.A.'s office of drug safety has absolutely no clout and no money, and the report showed that."
The Post has a similar piece.
(I represented pharmaceutical companies when in practice and continue to have a small consulting role.)
Sunday, April 23, 2006
An interesting paper by Richard Cupp addressing, through a look at Daubert and its evolution in the context of products liability, David Owen's work identifying products liability as a distinct area of law. Dean Cupp concludes:
Regardless of one’s views about Daubert and its progeny, the lavish attention paid to the case by courts and scholars and its unique importance to products liability serve as powerful evidence for Professor Owen’s assertion that products liability has come of age as a body of law, and that its inevitable future changes will be viewed as evolution of a functionally distinct legal field. His belief in the law of products liability is, with time, becoming increasingly irrefutable.
Saturday, April 22, 2006
An intermediate California appellate court affirmed yesterday a $28 million punitive damages verdict over $850,000 in compensatory damages in a tobacco case against now-Altria. The original verdict was for $28 yes-that's-a-b billion in punitives.
The opinion [PDF] indicates, among other things, that the decedent started smoking in 1956 when she was 17, and smoked for 45 years. And it has a lengthy chronology of events in the tobacco industry's history that it uses to justify the punitives award. It's also got an interesting preemption discussion.
The punitives discussion is fairly lengthy; its conclusion:
In summary, we conclude that Philip Morris’s conduct was extremely reprehensible, that the approximately 33-to-1 ratio of punitive damages to compensatory damages is not constitutionally excessive in light of the extreme reprehensibility of the misconduct, including the vast “scale and profitability” of the course of misconduct, and that those considerations together with Philip Morris’s financial condition justify the $28 million punitive damages award for purposes of the due process clause. We therefore reject Philip Morris’s contention that the award is constitutionally excessive.
Next, we'll see what the California Supreme Court says about it...
Friday, April 21, 2006
Several suits have been filed over the contact lens solution that may be associated with a fungal condition that has (at least in one case) allegedly permanently harmed users' corneas.
Thursday, April 20, 2006
From the AG's press release [PDF]:
PRODUCT LIABILITY. IMMUNITY FROM PUNITIVE DAMAGES. INITIATIVE
Prohibits courts from assessing damages to punish defendants (punitive
damages) when a product causes injury or harm if, at time of manufacture, distribution
or sale, the product or the product's warning information was in material compliance
with existing laws, regulations or governmental standards. Immunity from punitive
damage awards would be required unless injured party could prove, with clear and
convincing evidence, that manufacturer, distributor or seller intentionally withheld or
misrepresented information required by a governmental agency, and that such action
was causally related to consumer injury. Measure applies to pending lawsuits.
Summary of estimate by Legislative Analyst and Director of Finance of fiscal
impact on state and local governments: Potential unknown reductions in revenues to the
state and local governments resulting from a potential decrease in punitive damage
awards in certain product liability lawsuits. (SA2005RF0147.)
The Secretary of State's tracking number for this measure is 1205 and the
Attorney General's tracking number is SA2005RF0147.
The proponent for this measure, John H. Sullivan, must collect 373,816
signatures of registered voters, which is five percent of the total votes cast for governor
in the 2002 general election. The 150-day deadline to collect signatures is July 17,
2006. The initiative proponent can be reached at 916-446-6752.
For the complete texts, titles, summaries and circulation calendars, please call
the Secretary of State's Press Office at 916-653-6575.
According to the Sierra Club (which opposes the measure), Chevron supports it; such support may be related (per this LAT story) to the MTBE litigation. The measure was created by the Civil Justice Association of California.
[via Wandering Bell.]