March 25, 2006
Top Five SSRN Torts Papers
1. Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime
John R. Lott Jr. and John E. Whitley
American Enterprise Institute (AEI) and University of Adelaide - School of Economics
Date Posted:May 22, 2000
Last Revised:June 10, 2002
Working Paper Series
2. Cognition and Cost-Benefit Analysis
Cass R. Sunstein
University of Chicago Law School
Date Posted:October 14, 1999
Last Revised:November 14, 1999
Working Paper Series
3. Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002
Journal of Empirical Legal Studies, Vol. 2, pp. 207-259, 2005
Bernard S. Black, Charles Silver, David A. Hyman and William M. Sage
University of Texas at Austin - School of Law, University of Texas Law School [Ed. note: Hook 'em], University of Illinois College of Law and Columbia Law School
Date Posted:October 25, 2005
Last Revised:January 23, 2006
Accepted Paper Series
4. Event Studies and the Law - Part I: Technique and Corporate Litigation
Sanjai Bhagat and Roberta Romano
Leeds School of Business and Yale Law School
Date Posted: May 1, 2001
Last Revised:January 16, 2002
Working Paper Series
5. The Cat in the Microwave? (Die Katze in der Mikrowelle?)
Recht der Internationalen Wirtschaft, Vol. 8, p. 598, 2003
Georg Wenglorz and Patrick S. Ryan
Independent and University of Colorado at Boulder, Interdisciplinary Telecommunications Program
Date Posted:January 3, 2004
Last Revised:January 29, 2004
Accepted Paper Series
March 24, 2006
Shameless Self Promotion: Peer Review Discovery and Litigation-Driven Scholarship
My current article (out under review all over the place), The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, is now up on SSRN. The abstract (with which I am not entirely thrilled, incidentally):
The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.
This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.
In this Article, I explore these phenomena and the criticisms of them, as well as the history of peer review itself. Contrary to the critics, I ultimately conclude that each, in fact, can strengthen both law and science through cross-fertilization, if appropriate checks are established. Such efforts will better reflect law and science’s overlapping magisteria (a term roughly meaning the disciplines’ area of authority). A better recognition and understanding of this overlap will create incentives to improve both law and science.
The full article is at SSRN. Comments are welcome, of course.
All Federal Appellate Daubert Decisions
Hooray for Blog 702 (which you should be reading already anyway).
March 23, 2006
Florida Senate Committee Passes Tort Reform
Sounds like the hearing was rather uneventful. From the Sun Sentinel story:
There was little discussion among committee members about the controversial issue that has pit two of Tallahassee's most aggressive interest groups -- big business and trial lawyers -- against each other and is driving hundreds of thousands of dollars in campaign contributions to both political parties this year. Senators asked only a handful of questions of presenters and said almost nothing in debate before voting.
Sen. Walter "Skip" Campbell, D-Tamarac, withdrew an amendment that would have forced companies that write insurance policies for businesses to lower their rates to account for the savings they would see if joint and several is abolished.
Afterward, Campbell said he decided it was no use aggressively fighting the measure on Wednesday because Republican senators had been "locked down" and instructed to oppose any amendments.
Sounds like Campbell may be wondering the same thing I am -- that is, has there been an impact from such a move in the states that have taken this step?
March 22, 2006
TGN1412 - An Argument for Openness in Clincial Trials
An on-point excerpt from a BMJ editorial at Black Triangle.
The Story of a Drug
In the Pipeline has an interesting story of the development and apparent decline of a new fixed-dose combination drug, BiDil. The drug in question is particularly interesting for its indication, which is, according to Lowe, probably the first "race-based pharmaceutical":
(Blogging may be slow in the next couple of days; I'm solo dad and my son has an ear infection, it seems. Hooray!)
March 21, 2006
Guidant and the Independent Study
Often, when a company commissions an "independent investigation" into its own conduct, some eye-rolling is appropriate, and I imagine there was some of that when Guidant announced that it would commission such a study into its handling of its defibrillators. (Guidant had evidently known of rare but significant flaws for around three years prior to disclosing them to doctors.) To date, Guidant has said it's facing around 150 lawsuits. (The MDL is in Minnesota.)
But this very interesting NYT story suggests that the panel was genuinely independent and, indeed, rather critical of Guidant. The lede from the NYT:
An expert panel commissioned last summer by the Guidant Corporation to review its handling of heart device flaws said yesterday that the company had systematically failed to fully assess patient safety in deciding whether to publicize product failures.
The group found that decisions made by Guidant about how to address or disclose product problems were driven by statistical projections from engineers rather than assessments from doctors about the medical consequences of those failures. The group urged Guidant to create an outside panel of physicians and others who would regularly monitor the safety of its devices and advise the company about when and how to notify doctors and patients about problems.
Guidant has posted the full report (over 100 pages, including the appendices) on their website; the key recommendations start at page 20. On the one hand, it surely provides a blueprint for plaintiffs' counsel; on the other hand, it may be a potent argument against punitive damages if Guidant follows the recommendations. And, most important, it seems to be the right thing to do.
As of this morning, Guidant has posted the title of a press release related to the report, but it links to nothing (and the next consecutively-numbered URL I guessed at results in a 404 error). I'll post a link to the release once it gets posted. (see below)
The Times story provides this as the company's response:
In a statement yesterday, James M. Cornelius, the chief executive of Guidant, which is based in Indianapolis, said it and other makers of heart devices recognized that the environment governing the disclosure of product problems had changed.
"We are taking the necessary steps to improve surveillance of device performance and safety, as well as physician and patient communications," Mr. Cornelius said.
Update: Guidant has posted its response now.
James M. Cornelius, Chairman of the Board and Chief Executive Officer of Guidant Corporation, stated, “I want to express our deep appreciation to the Independent Panel for its careful analysis, as well as for the incisive and thorough recommendations contained in the Panel’s report. The Panel has presented Guidant with a blueprint for improvement and enhancement of our postmarket evaluation of product reliability and communications procedures regarding the performance and safety of our devices. We intend to implement the recommendations to further benefit patients and physicians. We are already working closely with Boston Scientific to ensure a smooth transition of these recommendations following the completion of the pending merger between Guidant and Boston Scientific.”
* * *
“Guidant has already begun to implement changes that will address some of these recommendations, including taking steps to provide enhanced information through the expanded Product Performance Report we now make available to physicians and patients on our website. This Guidant initiative will be supplemented by additional communication recommendations made by the Panel. And, as an immediate response to one of the Panel’s major recommendations, the company is actively recruiting for the newly created position of Chief Medical and Patient Safety Officer at CRM, a physician who will be responsible for overseeing all issues relating to patient safety,” Cornelius continued.
I Don't Remember "Prevent the Defendant from Selling Her Life Story" as a Gore Guidepost
An interesting rationale for punitive damages, and what seems like a bit of a stretch on foreseeability against a murderer's employer, both presented in one case:
A jury Monday awarded $6 million in actual damages and $100 million in punitive damages to the family of a man fatally poisoned by his wife, a toxicologist who worked for San Diego County at the time.
So - to be clear - the punitives are only against the wife (whose responsibility was set at 75% with the County's at 25%), who was a meth addict having an affair with her boss, and who
staged an "American Beauty" suicide scene at her La Jolla apartment, according to prosecutors, to make it look like her 26-year-old husband killed himself.
Fresh red rose petals were found around the victim's head and shoulders, and his wedding photograph was propped up near his head in a scene reminiscent of one in the 1999 movie.
Why $100 million? Not because of the details of the tort exactly, but because the details of the tort were so lurid that the jury feared her making a bunch of money. From the story, anyway, it appears that was the sole basis for the size of the award:
Another juror said she voted for Rossum to pay $200 million in punitive damages so there wouldn't be any chance that she'd get away with any money.
* * *
After awarding $6 million in actual damages, the jury heard from one witness in the punitive damages phase of the trial.
Melissa St. James, a marketing professor at Cal State Dominguez Hills, testified that Rossum was a "notorious" criminal who could sell the rights to her story for $2.5 million or more. She also said Rossum's future earning potential was "unlimited."
As for the county's responsibility (set at 25%), it's interesting as well:
Senior Deputy County Counsel Deborah A. McCarthy said she is confident that the jury award will be reversed on appeal.
"It is not the duty of the county of San Diego to prevent a wife from murdering her husband," McCarthy said outside court. "If this case stands, it will expand public liability in a way the state of California never envisioned."
* * *
McCarthy told the jury that Rossum was a killer who just happened to be a county employee at the time she committed her crime.
Officials at the Medical Examiner's Office were told they didn't have to do a drug test or a background check on Rossum when she applied to become a toxicologist because she was already a student worker, McCarthy said.
Even if a drug test had been done, there is no evidence that Rossum would have failed it, she said, adding that Rossum, a methamphetamine addict, relapsed only a week or two before she murdered her husband.
But one juror said the majority of the panel felt the county was remiss in not doing a background or drug check on Rossum.
It's a good example of a jury finding employer responsibility even in the absence (I assume anyway) of a respondeat superior finding.
March 20, 2006
No Cert. in 18:1 Punitives
The Supreme Court denied cert. today in a Philip Morris case with $100 million in punitives on $5.5 million in compensatory damages. The $100 million was reduced from $3 billion.
Speaking of Gaps in Compensation Law
A subject that comes up fairly often in teaching wrongful death (at least for me) is the exclusivity of the categories of potential plaintiffs; that obviously ties in with the humanizing torts discussion in the last week or two (look under "Teaching Torts" category for more on that).
Now comes a new paper from the Women's Rights Law Reporter by Nancy Knauer (Temple), The September 11 Relief Efforts and Surviving Same-Sex Partners: Reflections on Relationships in the Absence of Legal Recognition. The abstract:
The criteria established by federal, state, and private relief efforts to assist the families of the victims of the September 11 attacks present a unique opportunity to examine the status of same-sex relationships in the United States. In the absence of uniform relationship recognition, surviving same-sex partners continue to struggle with a loss that legally is not cognizable. The stories from the September 11 survivors illustrate that a surviving partner is a legal stranger, who often must reconfigure her relationship with her partner to fit within the various legal categories where relief or compensation might be forthcoming. These legal categories generally do not provide recovery in recognition of the nature of her relationship with her partner, but rather in spite of the nature of the relationship. Loss experienced by a surviving same-sex partner in the United States continues to unfold against the backdrop of a persistent morality discourse that demonizes same-sex relationships and enshrines such sentiments in legislation and citizens' initiatives designed to protect traditional marriage. A surviving same-sex partner is denied the basic luxury of grieving because she must navigate a complicated legal system offering pockets of partial recognition and, at times, resort to litigation. The highly polarized nature of the debate regarding the recognition of same-sex relationships means that her very loss is contested and her mourning politicized.
March 19, 2006
Parkinson's Drug Tied to Compulsive Behavior
In an interesting warning & foreseeability question, some people who took dopamine agonists (marketed as Mirapex and Permax) are suing for damages relating to increased compulsive behavior:
When Wayne Kanuch received a diagnosis of Parkinson's disease in 1993, the last thing he imagined was that the drug prescribed to treat his illness would turn him into a compulsive gambler and put his libido into overdrive.
Kanuch's marriage ended in divorce, partly as a result of the sexual pressures he placed on his wife, and he began losing fortunes at the racetrack. He was fired from his job at Chevron for trolling for dates on the Internet while at work, and he quickly went bankrupt.
* * *
Now, some patients are suing the manufacturers of these drugs to recover the money they lost gambling, on the grounds that the companies did not do enough to warn about these risks. Kanuch has not yet sued but plans to do so.
The evidence is apparently still a bit hazy, based primarily on (unreliable for most anything other than signals) adverse event reports. But the companies, due in part to an FDA analysis of those reports, have updated labels for some of the class:
Valeant Pharmaceuticals, which sells Permax, a dopamine agonist, said the matter is under litigation but it has told physicians: "As with other dopamine agonists, compulsive self-rewarding behavior (e.g., pathologic gambling) and libido increase have been reported in patients."
Boehringer Ingelheim, which makes Mirapex, another dopamine agonist, said it has toughened its warning label but said that company officials are still exploring the connection. Eli Lilly & Co, which used to sell Permax, said there is no scientific consensus on the issue and suggested that gambling problems may be linked to the increased accessibility of legalized gambling.