July 14, 2006
Reminder: Guest Posts Next Week
As I noted earlier in the week, Andrea Peacock, author of Libby, Montana: Asbestos and the Deadly Science of an American Corporation, will be blogging here next week.
A criminal trial of seven current or former Grace employees will begin in September (case materials here). Grace itself was dismissed on statute of limitations grounds. Remediation in Libby continues, but even areas that have theoretically been cleaned up are sometimes found to have substantial amounts of vermiculite (including, as noted in the story, a site immediately adjacent to a planned memorial to people injured or killed by the material).
It promises to be an interesting week, and I hope readers will comment as well. I will be heading out of town tomorrow mid-day, so there may be no posts until Andrea starts up on Monday.
House Members Meet About Med Mal Reforms
The UPI has a fairly thorough look at a meeting of members of the House Committee on Energy and Commerce about potential reforms for the medical malpractice system. Among the usual suspects, proposal-wise, was this one, new to me:
Jeffery O'Connell, professor of law at the University if Virginia, in Charlottesville, proposed a novel solution: the "early offer" settlement. A medical malpractice defendant would have the option of offering to pay within 180 days the plaintiff's net economic damages, excluding compensation from insurance coverage and/or worker's compensation claims - an offer the plaintiff would be compelled to accept.
The only exception would be if the plaintiff can show "gross negligence beyond a reasonable doubt," he said, noting that data suggest that about three percent of all medical malpractice claims involve gross negligence.
These settlements could be noted in a medical database to distinguish them from cases where negligence is proven, O'Connell said.
July 13, 2006
Plame & Wilson v. Libby, Rove, Cheney, & Does
Valerie Plame and Joseph Wilson have, as you have presumably seen by now, sued [PDF] Scooter Libby, Karl Rove, Dick Cheney, and ten John Does. They're represented by Proskauer Rose with Erwin Chemerinsky of counsel. The suit includes Constitutional (Bivens) claims, section 1985 and 1986 claims, along with pendent state law claims -- more specifically, it alleges First and Fifth Amendment violations, civil rights conspiracy, failure to prevent civil rights violations, public disclosure of private facts, and civil conspiracy.
James Copland at Point of Law wonders "if Republicans so casually dismissive of concerns about litigation interfering with executive branch operations when Paula Jones sued Bill Clinton will still be singing the same tune." (My prediction: not so much.)
The complaint: Download plame.pdf.
Zero Cost of Entry Litigation?
A story from the LAT discusses the early stages of what might be the Next Big Thing in mass torts - Fosamax. The Merck drug, indicated for osteoporosis, evidently can cause jaw deterioration. The article suggests that physicians generally consider the drug's benefits to outweigh the risks, but there's an enthusiastic effort to test the waters for plaintiffs.
Among other things, the report notes internet advertising, and, sure enough, look at all those AdSense ads. Just across the top, you've got:
...and there's a full bunch of ads down the side too, most of them for lawyers.
Has Google and other web-based advertising changed how people get into cases? There's minimal downside in buying some good search terms and seeing if an inventory comes together. If you don't end up liking the litigation, you can refer it out (presumably someone will take most any case). And, if so, does it make a good or bad difference? Are the inventory cases getting bigger with a higher percentage of them non-injury plaintiffs?
(Inventory settlements with a small number of injury plaintiffs and a much large number of non-injury plaintiffs, by the way, are the one thing that I meant to get to in my Point of Law posts that I never did. Possibly just as well, since I don't have a good idea of how to fix it.)
[Edit: I should have mentioned that I do a small amount of work for Merck, which makes Fosamax, none of it (to date) related to Fosamax.]
Let's Call the Whole Thing Off?
Poh-tay-toh: Tennessee Medical Malpractice Blog ("great article")
Poh-tah-toh: Point of Law ("hack job")
Suddenly, I feel like having hash browns.
More about Autism and Mercury
There's a continuing discussion at Respectful Insolence of the link -- or, more accurately, the lack of an established link -- between mercury in vaccines and autism, and about a post on the Special Education Law Blog. In the comments in particular, there's a useful discussion of what should count as a link between a condition and a suspected cause.
As an aside, query whether your favorite journal's disclosure policy would require paid expert witnesses to disclose their expert work when publishing relevant research. Some policies are not so clear as you might hope.
Next Week: Guest Posts by Andrea Peacock
I will be traveling next week. In my absence, Andrea Peacock, author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation, will be blogging about asbestos and W.R. Grace (and whatever else she decides to blog about). Jim Hightower called her book "a testament to the strength of ordinary citizens acting in the 'common good.'"
Andrea is a long-time investigative journalist who also spent a year at the University of Texas School of Law (where we were first-years together). She has written for various alternative weekly newspapers and has coauthored The Essential Grizzly: The Mingled Fates of Men and Bears with her husband, Doug Peacock.
It should be interesting to see another perspective while various reform proposals muddle around. I'll look forward to readers' comments.
Insurance Changes in Missouri
An interesting bill became law this week in Missouri. In addition to some controls on rate increases, it has some information-gathering components:
makes self-financed malpractice insurers subject to state reporting requirements and directs the state insurance director to establish risk-reporting categories for each physician specialty.
Medical malpractice insurers will be required to report actual rates charged, including assessments for each risk-reporting category, and the department will publish annual reports reflecting median market rates.
Is this common?
July 11, 2006
Medical Judgment: Business Judgment :: Cows: Horses?
Peter Nordberg and Ted Frank started an interesting discussion of whether medical judgment calls should receive comparable deference as business judgment calls. This will be worth reading as the week moves along...
New FDA Requirements
Yesterday's Close to Home comic has a funny suggestion of what the FDA could do next.
Another Mission: Space Incident
I don't think it's probably all that uncommon or necessarily even newsworthy, but as a followup on my previous posts (here and here), a woman fell unconscious after riding Disney's Mission: Space ride (one assumes on the spinning version).
Will the Duke Lacrosse Case End Up in Civil Court?
This Writ column by Joanna Spilbor thinks so, with a potential civil claim for malicious prosecution against the D.A. by the accused. Spilbor focuses on the D.A.'s statements in press conferences as a way around the immunity he would ordinarily enjoy.
July 10, 2006
Thimerosol Case Ruling
A thimerosol case was enthusiastically dismissed on Daubert grounds, with a thorough and biting opinion granting summary judgment. Of note (among many things), the judge notes the potential that the plaintiffs' experts' research was litigation-driven:
Moreover, the Court is particularly concerned as to a potential bias in Dr. Geier's methodology and ultimate conclusion given the recency of Dr. Geier's research into the cause of autism, which he admittedly began in only the last two and a half years, a time period that also represents the pendency of this lawsuit.
It's a good read; Respectul Insolence (the site linked to first above) has a good summary and a long history of posts on the topic.
Federalism & Preemption
A new SSRN paper by Alexandra Klass (U. of Minn.) has an interesting premise regarding the interplay of federal regulation and state common law:
Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the “new federalism,” such progressive common law development at the state level may be particularly timely and appropriate. This article uses these principles to provide a new perspective on the evolution of environmental law from its common law beginnings, to the flurry of federal statutes and regulations beginning in the 1970s, to present-day state and local environmental protection initiatives, and to argue for increased emphasis on state common law in modern environmental protection efforts.