August 5, 2006
Aramark Verdict Reversed
August 4, 2006
Waiting for the Supremes
The California Supreme Court has on its docket a case against Philip Morris in which the punitive damages award was 33 times the compensatory damages. As you'll recall, the U.S. Supreme Court granted cert. on an Oregon case with a 100:1 ratio. So the California court, rather sensibly I think, decided to wait until the Oregon case is decided.
August 3, 2006
Punitives Reduced, Still $55 Million
An interesting case in an Explorer rollover case. This caught my eye:
The [plaintiffs] Wilsons’ appellate counsel, San Francisco attorney Jerome B. Falk Jr., told the MetNews he was happy with the decision.
“On balance, I’m pleased. With interest, this is about $102 million, and so I think it’s a wonderful recovery for our clients,” he said, pointing out that the court rejected Ford’s “radical” position that it could not be subject to punitive damages because reasonable experts disagreed about Ford’s design decisions and because it complied with all applicable governmental regulatory standards.
That "radical" position reminds me that I wanted to remind y'all to finish reading the interesting discussion of immunity for medical decisions about which reasonable minds could differ.
August 2, 2006
Supplements, OTC Drugs May Have to Report Side Effects
Legislation headed for a vote in the Senate would mandate for the first time that makers of dietary supplements and over-the-counter drugs inform the FDA when they learn of any serious adverse event linked to their products.
"The current reporting system is voluntary. It's not adequate for detecting the number or prevalence of adverse events associated with a product," said Sen. Dick Durbin (D-Ill.), a key backer of the bill.
The legislation defines a serious adverse event as a death, life-threatening experience, inpatient hospitalization, disability, birth defect or medical and surgical intervention.
The measure stems from concerns regarding the now-banned dietary supplement ephedra, which has been linked to dozens of deaths; from the dangers associated with the use of steroids and performance-enhancing substances by athletes; and from a variety of scientific reports raising doubts about numerous herbal products.
The legislation has support from major players in the supplement market -- but they're not interested in being treated the same as traditional pharmaceuticals:
But [industry spokesman] Mister said the industry will never back other legislative proposals that would require their products receive FDA approval for safety and efficacy before marketing.
An interesting FindLaw piece by Julie Hilden on LitPages and the like -- sites that provide lists of medical malpractice plaintiffs (excepting those who won jury verdicts).
In the end, the precept that "more information is better" is nowhere more true than on the Internet. Calls to ban sites like LitiPages ought to be replaced by calls to reform them, or to convince them to include a right-of-reply - or calls to let them be free, and trust that other sites will arise to correct any misinterpretations they may foster.
Happy Birthday! Oh, and I'm Suing.
In the Thanksgiving's-gonna-be-awkward category comes this AP story of one Carriel Louah, who paid her parents a surprise visit for her mom's birthday back in 2005. She slipped and fell in their (allegedly) icy driveway the next morning, injuring herself, and has now sued her mom and stepfather.
U.S. District Judge John Shabas denied summary judgment: Download ice.pdf.
(There's nothing particularly problematic with the suit itself, incidentally. It seems to be a fairly run-of-the-mill premises case, made interesting only by the familial connection.)
August 1, 2006
Confidentiality & Settlements
Scott Moss (Marquette) just posted his interesting-sounding paper Illuminating Secrecy: A New Economic Analysis of Confidential Settlements to SSRN. The abstract:
Even the most hotly contested lawsuits typically end in a confidential settlement forbidding the parties from disclosing their allegations, evidence, or settlement amount. Confidentiality draws fierce criticism for harming third parties by concealing serious misdeeds like discrimination, pollution, defective manufacturing, and sexual abuse. Others defend confidentiality as a mutually beneficial pay-for-silence bargain that facilitates settlement, serves judicial economy, and prevents frivolous copycat lawsuits. This debate is based in economic logic, yet most analyses have been surprisingly shallow as to how confidentiality affects incentives to settle. Depicting a more nuanced, complex reality of litigation and settlement, this Article reaches several conclusions quite different from the economic conventional wisdom - and absent from the existing literature.
First, contrary to the conventional wisdom that banning confidentiality would inhibit settlement, a ban may promote early settlements. No ban could effectively cover settlements reached before litigation, so any ban would incentivize parties to settle confidentially pre-filing - and such early settlements save more litigation costs. Second, a ban would affect high- and low-value cases differently, depending on whether publicity-conscious defendants worry more about one big settlement or several small ones. Third, more settlement data could help parties settle and also, by decreasing litigation uncertainty, deter frivolous litigation. Fourth, more settlement data could reveal which companies engage in unlawful practices, yielding more efficient decisions by consumers, workers, and investors who otherwise engage in over-avoidance when unable to distinguish hazardous from safe goods.
In sum, a confidentiality ban would decrease settlements of cases already in litigation but it would have many countervailing positive effects: increasing pre-filing settlements; deterring frivolous lawsuits, and improving product and job market decisions. We cannot predict the net effect of all these competing effects, however, contrary to the traditional economic story. Economics thus does not counsel against a confidentiality ban; jurisdictions adopting a ban would be undertaking a worthy experiment with a promising but uncertain policy.
This analysis typifies the schism between traditional economic analyses, which reach definite conclusions by simplifying complex realities, and many contemporary economic analyses, which are realistically nuanced but do not yield categorical conclusions. Ultimately, the latter brand of economics is sounder and still can clarify important matters such as parties' incentives, rules' costs and benefits, and the tradeoffs and competing effects of a policy like a confidentiality ban.
Perhaps of interest, in one mass tort litigation with which I am familiar, the defense insisted that there not be any confidentiality in connection with settlement amounts, as (the theory went anyway) they wanted to be able to show to all comers that they were settling only within their set amounts.
Video Games and Violence
The recent decision by Chief Judge James M. Rosenbaum (D. Minn) (for whom I clerked), striking down the Minnesota statute that would fine minors in possession of adult-rated videogames, has gotten a fair amount of press. The opinion includes an interesting, brief, discussion of Daubert in discussing causation:
Dr. Anderson’s meta-analysis seems to suggest that one can take a number of studies, each of which he admits do not prove the proposition in question, and “stack them up” until a collective proof emerges. It is fair to say that his article does not, on its face, demonstrate the validity of this thesis. In making this observation, the Court sees no present need to undertake a Daubert analysis concerning the article’s admissibility – especially when the article itself identifies empirical flaws which keep it from actually supporting the State’s purported interests. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Here's the opinion: Download videogames.pdf [PDF].
In response to my confusion about whether meroxyl (which helps protect against UV-A when in sunscreen) is in fact available in the U.S., commenter Jane reports that it is only available today in L'Oreal's overseas products. It has now, however, been approved for U.S. marketing.
The absence of UV-A protection is the basis for fraud suits contending that sunscreen marketers have been misleading in representing the extent of protection provided by their products.
ABA Decides Not To Deal with Preemption
Law.com has an overview. Briefly, a subcommittee initially voted to submit to the full meeting, but then pulled, a measure that would have rejected the notion of preemption of state tort law by regulatory determinations.
July 31, 2006
Slightly Off Topic Sports Fun
Second, also from Deadspin, a Colorado attorney is suing various online fantasy football providers under New Jersey law, claiming that they are in fact providing online gambling illegally. Tech Law Advisor has the complaint; and the lawyer has a press release. I suppose if some sites get enjoined, I might not be as embarrassed in my leagues this year...
MySpace Update & Measuring Calories
I don't have documents or a link for it (yet), but early word is that the MySpace defense at the motion-to-dismiss stage is focusing, unsurprisingly, on duty to protect against third-party criminal acts and on the Communication Decency Act's safe harbor provisions. (See here, here, here, here, here, and here for earlier posts; Walter Olson provides his take for the Times of London.)
On an entirely different topic, and only marginally related to anything except, I suppose, obesity lawsuits, the SciAm blog has a neat description of how food manufacturers measure calories.
July 30, 2006
New FDA Guidelines on Experts
The FDA announced new guidelines on experts on advisory committees with ties to industry last week. Among other things:
* [The FDA will be] Issuing guidance on identifying more clearly the conditions under which conflict of interest waivers are granted. The FDA said that at present it grants waivers after taking into consideration the participation in scientific endeavors related to the work of the committee.
* The FDA also said that it would frame guidelines on when the conflict of interest should be disclosed to the public and on what the nature of this disclosure should be.
* The agency also wants certain rules specifying when briefing materials used at FDA advisory committee meetings will be made publicly available.
* The FDA also said it would look at making the whole process transparent and send information on the advisory panels to public groups and providing electronic notifications through an FDA advisory committee list serve and posting on the FDA web site.
* The agency also promised to streamline the appointment of drug-related advisory committees.
It's not immediately clear to me how broadly the FDA considers conflicts -- e.g., whether someone without industry ties but who has made, say, $500,000 in the last year testifying for plaintiffs' attorneys would count.