April 7, 2006
Note: This video is now in this post.
This is worth watching:
P.S. I enjoyed studying in the Jamail Library at UT, and the painting of him never talked to me like that.
P.P.S. If the movie's causing trouble, follow this link.
Oklahoma Caps Defeated
The AIA is unhappy. That story only notes caps ($300K for noneconomic harm, $500K against hospitals unless the case involved wrongful death, wilful & wanton conduct, or gross negligence), but an earlier version also would have eliminated joint and several liability).
April 6, 2006
Litigation & Science
I again direct your attention to this week's Debate Club at Legal Affairs, with Michael Martinez and Jay Kesan, and not just because they're talking about my piece (though I naturally consider that a plus!). It really is an insightful discussion into some of the incentives and problems with the intersection of litigation and science.
A couple of brief excerpts:
Martinez: Having said all that, I think we do have some common ground. We both agree that some parties on both sides of the "v." try to get a leg up in litigation by funding studies that they hope will help their side. My view, again, is that there is nothing wrong with that given the safeguard criteria and gatekeeper functions built into the Daubert process.
Kesan: That said, I am in agreement with you that the parties in a litigation are there to win, not to adhere to good scientific norms. Hence, there is a need to craft additional rules to reduce opportunistic conduct by both sides with full disclosure rules and complete transparency. For instance, I would propose that there should be full disclosure of any direct or indirect involvement by any party in any study that is being relied on by a party in a litigation. Such disclosure should not be restricted to financial support and should include disclosure of other support for a study in the form of materials, supplies, performance of testing, and the like. These rules should be accompanied by significant judicial sanctions. If a party's involvement in a study is not disclosed in a timely fashion and is discovered later, the studies at issue should be excluded by the court and perhaps costs to the other side related to analyzing and responding to that study should be awarded.
The editors have been kind enough to post a summary of and link to my piece as well.
Guidant Defibrillators and the Macabre
Well, that must have been unpleasant, to say the least.
Kathleen Gohde's final farewell to her husband turned into a macabre scene she will have to deal with the rest of her life.
As the widow bent toward Allan Gohde's coffin last July, she was startled by a loud beeping coming from his chest, according to a wrongful death lawsuit filed late Tuesday in Ramsey County District Court.
The source of the noise was an implanted Guidant Corp. defibrillator, the same model that was linked to the death of a 21-year-old man last March. Both men died after their defibrillators failed to deliver a life-saving jolt to their hearts.
As it turns out, the beeping that Gohde heard was a signal of a device malfunction, and if it hadn't sounded, the family might never have known why he died.
The Guidant MDL appears to be moving along.
April 5, 2006
Increase Abuse of Prescription Drugs
The NEJM has a good piece about the increased teen abuse of prescription drugs.
When Eric, an 18-year-old who lives in San Francisco, wants to get some Vicodin (hydrocodone–acetaminophen), it's a simple matter. "I can get prescription drugs from different places and don't ever have to see a doctor," he explained. "I have friends whose parents are pill addicts, and we `borrow' from them. Other times I have friends who have ailments who get lots of pills and sell them for cheap. As long as prescription pills are taken right, they're much safer than street drugs."
It'll be interesting to see what civil suits, if any, come about as the predictable injuries occur. Interesting questions of foreseeable misuse, physician responsibility, the responsibility of the parents from whom they're "borrow[ing]," etc.
WV Radio Ads Dispute
The U.S. Chamber of Commerce's Institute for Legal Reform launched ads recently in West Virginia touting the Tillinghast numbers relating to the costs of the tort system. West Virginia plaintiffs' lawyers are demanding the ads be withdrawn, citing the various criticisms of the Tillinghast research:
[West Virginia Trial Lawyers' Association President] Peyton’s letter asserted the radio ads are “in direct violation of [Federal Communications Commission] guidelines” that require “broadcasters to ... act with reasonable care to ensure that advertisements aired on their stations are not false or misleading.”
* * *
Lisa Rickard, president of the Institute for Legal Reform, said: “That is their opinion. They are grasping at straws. We have a spotlight turned on them and their activities in West Virginia, so they challenge the figures we cite.
“The Tillinghast study is done by a reputable firm. This is the ninth study they have done since 1985 looking at costs of the court system in the United States.
“Whether they [the trial lawyers] believe Tillinghast should have put certain costs in their study is irrelevant. It is a seminal study,” Rickard said.
April 4, 2006
Here Comes the Sun -- Run For Your Lives!
Plenty of folks have noted the sunscreen lawsuit (e.g., Overlawyered, Point of Law). It's worth emphasizing what PoL notes but most news reports have not -- it's not a personal injury suit. Instead, the complaint asserts fraud and statutory claims:
As I tend to do for no real reason besides wondering who would want to be in such a suit, I did Google searches for the named plaintiffs with relatively uncommon-seeming names. I sort of doubt it's the same person, but I note that one plaintiff is named Cristina Williams, and there exists such a person in L.A. with a website (that starts playing music at you without warning). Another plaintiff posted this entertaining series of messages about insurance claims, and, perhaps not surprisingly, expressed interest in another class action.
Legal Affairs has a debate this week that promises to be interesting, relating to studies or other scholarship that are motivated by the fact of litigation. The participants are Michael L. Martinez of Crowell & Moring and Jay P. Kesan at the University of Illinois.
The introduction to the debate is a tad curious, suggesting as it does that most of these sorts of studies are performed by defendant companies. My work (see the current article on SSRN) suggests that, while defense-funded studies are not unheard of, most such research is performed on behalf of plaintiffs' counsel.
April 3, 2006
What Don't You Like?
One thing I've done this year and last in teaching Products Liability is assign an essay midway through the term, asking students to describe something with which they have disagreed and to propose a solution (whether legislative, judicial, or otherwise). I finished up grading them today and, as last year, it's a very interesting exercise.
Also as last year, the substantial leader in issues (7 out of 31) with which students disagree is the absence of a regulatory compliance defense. The Owen et al. casebook includes Metzgar v. Playskool, 30 F.3d 459 (3d Cir. 1994), in which an infant choked to death on a small play block that was in compliance with all relevant regulations and which had never caused choking before. The Third Circuit reversed the grant of summary judgment.
The concept of regulations as a floor, rather than a ceiling, is clearly problematic to a substantial percentage of law students, at least here. They discuss the problems executives at Playskool face, and how frustrating it must be to do what seems like the right thing, and yet still face exposure in strict liability (humanizing the defendants, if you will).
If you were in a Products Liability course and your professor gave a similar assignment, what would you discuss? Comments are, as always, open.
This NYT story on home births focuses on the potential for criminal charges against midwives performing home births (illegal in nearly a dozen states), and on the reasons for both statutes prohibiting such births and for bringing charges. The story focuses on a prosecution in Indiana that arose out of the death of a baby, but, interestingly, nobody asserts that the midwife was at fault for the tragedy.
Stacey A. Tovino, who teaches at the Health Law and Policy Institute at the University of Houston Law Center and has written on midwifery and the law, said prosecutions of midwives almost always started with a tragedy.
"No one complains until a baby dies or a mom dies," Professor Tovino said. But once the issue arises, she said, legislatures often become involved as well, with doctors and midwives engaging in a bitter struggle over the proper regulation of midwives, one driven by a mix of motives that are difficult to disentangle.
"There has always been a tension between true quality-of-care concerns and anticompetitive concerns," Professor Tovino said.
The cases, if in a tort context, present interesting negligence per se and assumption of risk questions, too.
(In case it's relevant: my daughter was born in a hospital with a midwife; my son was born [legally] at home with a midwife.)
April 2, 2006
A Look Back at the Rhode Island Lead Paint Case
A thorough chronology of the Rhode Island lead paint public nuisance trial, from conception to verdict, is in today's NYT.
Not long after the verdict, an investment analyst called me and asked if I thought this was the start of a series of hits for the industry. I told him, and continue to think today, that it's unlikely -- too much of a square peg, round hole problem. But it's certainly a non-zero chance, especially with California in the mix.
Punitive Damages in the Torah
From the Israel Hasbara Committee, a look at potential origins for punitive damages:
The very idea of an extra payment appears to conflict with the general rule of damages in the Torah and their guiding principle of “an eye for an eye” - that damages were meant to compensate only for the actual harm suffered as a result of the unlawful conduct. However, much like contemporary common law regimes, there were certain situations where the Torah sanctioned an increased award of damages. These extra damages ranged from the twenty percent increase described in the Parsha, to a four hundred percent premium for the then more offensive offense of the theft and slaughter or sale of another’s ox.