June 10, 2006
Dismissal Motion Based on Alleged Fraudulent Screenings
Well, that could be a big deal.
[A] coalition of 47 companies last week asked a federal judge to dismiss tens of thousands of pending cases, alleging that the vast majority of them are premised on flawed or fraudulent medical diagnoses.
In the motion, defense lawyers say they are targeting claims that stem from "mass medical screening enterprises" which, they say, have clogged the courts with thousands of bogus asbestos claims.
In the motion, the asbestos defendants are asking [MDL Judge] Giles to do two things.
First, they want the judge to exclude all expert testimony from six doctors who the companies say either have taken the Fifth Amendment against self-incrimination when asked to testify about their methods or have disavowed diagnoses attributed to them.
* * *
The second request is that Giles "dismiss without prejudice all nonmalignant cases" in MDL 875 "subject to reinstatement upon production by plaintiffs ... of diagnosing documents by a doctor other than the six doctors."
June 8, 2006
Fallout from Milberg Weiss Indictment
...it's falling outside the securities area too. They lost their PSC role in the (currently fairly small) Medtronic defibrillator MDL. The quotable line (which I like not just because it's my judge who wrote it): "Amongst many highly competent lawyers, the court suggests few would select an indicted, as opposed to an unindicted, law firm."
An Off-Topic Post for the Road
But I can't possibly be the only torts prof with dinosaur-obsessed kids, so:
Off to Minnesota for a few days, so blogging may be slow.
June 7, 2006
Chromium-Cancer Paper Withdrawn Over Failure to Disclose
Per The Scientist, the Journal of Occupational and Environmental Medicine has retracted a 1997 study based on a failure to disclose financial and intellectual contributions from an interested corporate entity, Pacific Gas & Electric, which was at the time defending a products suit based on an alleged chromium-cancer link:
[The journal's editor] Brandt-Rauf began investigating the paper after being alerted by the The Wall Street Journal and Environmental Working Group, a Washington, D.C.-based advocacy group, that the paper was actually compiled and written by employees of a consulting company called ChemRisk, rather than the Chinese physicians JinDong Zhang and ShuKun Li, who were listed as sole authors.
The consultants, ChemRisk, describe themselves as having "a long-standing reputation for thorough scientific analysis and for sharing results in the peer-reviewed scientific literature. Many of the over 200 papers published by scientists in the firm are frequently referenced in both litigation and regulatory decision-making." Their site is worth looking around a bit to get a sense for what they do.
(Shameless plug reminder: My article, forthcoming next year in the Nebraska Law Review, discusses litigation-driven scholarship and discovery into the peer review process.)
Billboards & Bar Associations
Evan Schaeffer has more about this ATRA billboard in Texas, being used to publicize the case of $1 million in sanctions against Robert Kugle, Andrew Toscano and Robert "Trey" Wilson for their role in bringing what the court concluded was a fraudulent suit DaimlerChrysler in 1998. According to ATRA's press release, "Wilson has made no payments toward his share of the sanctions, and both he and Toscano continue to practice law."
Here's my thought: that's one poorly-designed and ugly billboard:
It has no real indication of what it's about or why it's shown up. At least in the web version, it's very nearly unreadable. The one clearly readable item sounds like a threat against the judiciary rather than a criticism of a still-practicing attorney or the bar association. Does the billboard exist just to trigger press coverage? Quite possibly, though the only Google News results for Wilson's name are two instances of ATRA's own press release, so it's not been terribly effective (except for getting bloggers to write about it!).
In any event, it's an interesting story; Googling any of the various names of the lawyers will reveal decent coverage of the underlying suit against Daimler Chrysler and the numerous bases for the court's statement that the attorneys acted improperly.
June 6, 2006
Lawyer Ads Scaring Patients?
Overlawyered has the details of a survey indicating that perhaps a quarter of patients would stop taking a drug if they saw an ad for a lawsuit involving it, and quotes the executive director of the National Alliance for the Mentally Ill in Mississippi saying that nine patients went off their meds when they saw ads for lawsuits relating to Risperdal and Zyprexa, both of which remain on the market despite lawsuit relating to pancreatitis and diabetes.
Since I am strangely obsessed with Google AdSense ads, I find the search results for the drugs interesting. If you Googled just the drug name -- say, if you were prescribed the drug and wanted to know more -- the first thing you'd see in both cases would be sponsored ads for plaintiff attorneys:
(Click on either image to see a readable version.)
I'm not sure it's necessarily bad for patients to know about the lawsuits, but I'd also rather those nine folks in Mississippi be on their drugs for bipolar disorder, etc., and to get their risk/benefit information from their physicians.
Wrap Yourself In Asbestos
In March, a class action was filed against the nation’s major sunscreen manufacturers alleging consumer fraud for using marketing terms such as “waterproof” and “all-day protection,” and for failing to tell consumers the sun can damage their skin and cause skin cancer even when they’re wearing sunblock. What comes as the biggest surprise to you regarding this case?
(A) That sunblock isn't really “waterproof” and doesn't really provide “all-day protection.”
(B) That any consumer would think the sun couldn’t damage their skin so long as they’re wearing sunblock.
(C) That more consumers aren’t wrapping themselves in asbestos instead of sunblock, given its unique heat-insulating properties.
(D) That lawhaha.com would think lawyers or law students have any spare time to lie in the sun.
Go do your civic duty and vote!
June 5, 2006
Claimants Exposed to Asbestos on 9/11 Added to Trust Fund Bill
Our ProductsProfs neighbors have more.
9/11 Workers & Air Masks
The NYT today has a lengthy and detailed piece keying off of a federal suit brought on behalf of 8,000 rescue workers who were part of the response to Ground Zero:
With mounting evidence that exposure to the toxic smoke and ash at ground zero during the nine-month cleanup has made many people sick, attention is now focusing on the role of air-filtering masks, or respirators, that cost less than $50 and could have shielded workers from some of the toxins.
More than 150,000 such masks were distributed and only 40,000 people worked on the pile, but most workers either did not have the masks or did not use them.
* * *
From legal documents presented in the case, a tale emerges of heroic but ineffective efforts to protect workers, with botched opportunities, confused policies and contradictions that failed to ensure their safety.
* * *
The city, which is the principal government defendant, has moved to have the lawsuit dismissed. It argues that it and the private contractors it hired to help in the cleanup did their best to provide adequate equipment and to get workers to use it, but many workers ignored the warnings. Many workers cited reasons for not keeping the masks on, like the stifling heat and the difficulty of communicating while wearing them.
Even if the response to an unprecedented emergency was flawed, the city's lawyers argue, a firmly established legal immunity under the State Defense Emergency Act and other laws protects New York from legal liability.
Farther down in the story is an interesting tidbit about then-EPA chief Christine Todd Whitman:
David M. Newman, an industrial hygienist with the labor committee, said that when federal environmental officials announced that it was safe for people to return to Lower Manhattan so that Wall Street could reopen a week after the towers collapsed, employers suddenly "had a green light to say, 'We don't need to use respirators because the E.P.A. says the air is OK.' "
He was referring to a statement made on Sept. 18, 2001, by Christie Whitman, the Environmental Protection Agency administrator, that air sampling done by her agency showed that the air was safe to breathe. The agency's inspector general concluded in 2003 that Ms. Whitman's statement was far too broad and could not be scientifically supported at the time she made it.
I got a sample complaint from PACER: View it here [PDF].
While looking around for a copy of the complaint, I came across Perry Binder's site at Georgia State, which has a wide array of resources relating to 9/11 litigation.
Supply and Demand and Physician Availability
Malpractice liability is often identified as a potential source of physician shortages -- and common sense suggests that at least it could be, if it ceased to be economically intelligent to either become or stay an active physician.
But this LA Times story explores another possible issue -- medical schools maintaining flat enrollment while demand grows:
[Experts say that d]emand for doctors is accelerating more rapidly than supply.
The number of medical school graduates has remained virtually flat for a quarter century, because the schools limited enrollment out of concern that the nation was producing too many doctors. But demand has exploded, driven by population gains, a healthy economy and a technology-driven boom in physicians' repertoires, which now include such procedures as joint replacement and liposuction.
(via Day on Torts.)
June 4, 2006
Tort Reform Database
This manuscript contains the most detailed, complete and comprehensive legal dataset of tort reforms in the U.S. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states' supreme courts, as well as whether it was amended by the state legislator. Previous and current scholarship which studies the empirical effects of tort reforms uses various different legal datasets, (tort reforms datasets and other legal compilations), some which existed online, some created ad-hoc by the researchers. Besides being different from each other, these datasets frequently do not cover reforms adopted before 1986, miss reforms superseded after 1986, miss court-based reforms, ignore effective dates of legislation, and do not accurately record judicial invalidation of laws. It is possible that at least some of the persisting variation across empirical studies about the effect of tort reforms might be due to variations across legal datasets used. This dataset builds upon and improves existing data sources. It does so by reviewing original sources of legislation and case law to determine the exact text and effective dates. It is hoped that by creating one "canonized" dataset our understanding of the impact of tort reform on our life will increase.