August 19, 2006
Conservatives Liberals Heart Tort Law
This essay explores in ideological terms the transformation in who supports American tort law. Traditionally structured to function to favor defendants, tort law around 1960 was a regime that conservatives defended and liberals sought to replace or reform. Today, many on the left embrace tort law, and it is the right that is pushing for “tort reform.” Along with this ideological somersault, American tort law has become much more politically prominent.
August 18, 2006
A "Culture of Silence"?
According to a new study (see the abstract here and a related study here discussing what exactly physicians would disclose in particular situations), fear of lawsuits is not the primary reason for doctors' silence in connection with errors. From the Seattle paper's report:
The results strongly suggest that the medical-malpractice environment, long believed by many doctors to be the "root of all evil," is not the prime deterrent to doctors' disclosing errors, Gallagher said.
* * *
Larson and Gallagher say they believe the main culprit is a "culture of medicine," which starts in medical school and instills a "culture of perfectionism" that doesn't train doctors to talk about mistakes.
Still, Gallagher predicts that will change: "We're just at the beginning of a culture change to greater transparency in medicine," he said.
(via Greedy Trial Lawyer)
August 17, 2006
Judge to Tobacco: "Admit you lied."
In a ruling that -- at least from the press coverage -- sounds rather a lot like a parent confronting a dishonest child -- Judge Kessler ruled today in favor, sort of, of the government in its RICO suit against the tobacco industry. Damages are apparently absent, but the forced admissions could be significant, to put it mildly, in future fraud claims.
Judges, Snow White's Dwarves, and Statistics
Three quarters of Americans can correctly identify two of Snow White's seven dwarfs while only a quarter can name two Supreme Court Justices, according to a poll on pop culture released on Monday.
Suppose that your thing is X-ology, and you want to emphasize how ignorant people are about X, in order to publicize your efforts to educate them. So you do a survey where you ask a simple and important question that is actually tricky and confusing: say, what are the freedoms guaranteed by the First Amendment to the U.S. Constitution? Or what are the capitals of the states in the Pacific time zone? Or what are the features of a passive sentence in English?
It's a fun read.
ABA Urges Draft Expert Report Privilege
Closest vote of the convention, but it passed -- supporting the creation of a uniform privilege for communications between counsel and experts.
While I can see the value of uniformity, the article seems rather lacking in explanation about why uniform privilege is the right answer. It's always seemed fairly relevant to me to be able to show a jury just how involved in a particular expert report the attorneys are, and to be able to show just how much some experts become advocates.
There are certainly reasons to go with a privilege (in particular avoiding distraction by what are actually immaterial changes), and I assume those positions were in fact presented -- but this article doesn't make them clear.
August 16, 2006
Risks to Volunteers
In the wake of TGN1412 and its disastrous clinical trial, the NEJM has an editorial [PDF, free full text]. The conclusion:
As long as we continue to manipulate biology in new ways, we probably cannot prevent all such events from occurring. We must do what we can to minimize risk, but the future health of the world population demands that we not let adverse events put an end to medical progress. We must treat those at risk with respect and great care, but the work must go on. The troubling fact of the matter is that without people who are willing to place themselves at risk to advance our knowledge, we will be frozen in our current state of understanding. And this state simply may not be good enough to enable us to meet the next unexpected challenge that comes our way.
Congratulations to Allen Waxman
In a slightly off-topic post, congratulations to Allen Waxman, who has been named the new General Counsel of Pfizer.
I practiced with Allen at Williams & Connolly, in particular in the Baycol litigation, and he is a terrific attorney and a great person. Pfizer will be well-served.
August 15, 2006
Poh-tay-toe (from NAM):
Well, here's a good piece from John Stossel on the topic. So many innovations -- notably vaccines -- are being held back out of fear of lawsuits and the climate of fear created by over-zealous trial lawyers. Time to get them in check and unleash all the innovation that we're capable of creating.
Poh-tah-toe (from Blog 702):
Having made its original appearance in the August 4 New York Sun, an anti-tort* column by ABC's John Stossel (you know, the guy who needs a break) has now been pressed into service as a retread at Point of Law.
It is a retread in more than one particular. In the space of a few short paragraphs, it deploys so many shopworn propagandistic parlor tricks that it's hard to keep track of them all.
[Lengthy taking apart omitted, but worth reading.]
Stossel knows this, we submit, in the way that the faithful can know things even in the absence of evidentiary support. He knows it because its truth is integral to Stossel's canonical story. Are there features of reality that correspond to parts of this story? You bet there are. Princesses and pumpkins really exist as well. But that doesn't make Cinderella anything more than a popular fairy tale.
...and the original tuber.
Actually, using the potato/potato thing makes them sound equivalent, while Nordberg's clearly taken the more careful look at the piece. Maybe potato/truffle?
No Inventory Settlements in Michigan Asbestos Cases
Via Point of Law, the Michigan Supreme Court has barred the use of inventory settlements in asbestos cases -- putting low-value cases together with high-value cases in settlement discussions. Inventory settlements are a substantial problem in pharma mass tort cases as well, with non- or minor-injury cases making up the bulk of the inventories.
The administrative order, which is effective immediately but has a comment period through December 1, is here [PDF].
August 14, 2006
Largest Consumer Electronics Recall Ever
How exciting it must be for Dell. From the NYT:
Dell is recalling 4.1 million notebook computer batteries because they could erupt in flames, the company said today. This will be the largest safety recall in the history of the consumer electronics industry, the Consumer Product Safety Commission said.
Dell, the world’s largest PC maker, said the lithium-ion batteries were made by Sony and were installed in notebooks sold between April 2004 and July 18 of this year.
The recall raises broader questions about lithium-ion batteries, which are used in a host of devices like cellphones, portable power tools, camcorders, digital cameras and MP3 players. The potential for such batteries to catch fire has been acknowledged for years, and has prompted more limited recalls in the past. But a number of recent fires involving notebook computers, some aboard planes, have brought renewed scrutiny.
Conference: Expertise in the Courtroom
VILLANOVA LAW SCHOOL CONFERENCE ON EXPERTISE IN THE COURTROOM
Saturday, Oct. 21, 2006, 9 am-3 pm
Villanova University School of Law
(Full announcement is here.)
The 2006 Norman J. Shachoy Annual Symposium, sponsored by the Villanova Law Review, will be held at Villanova University School of Law on Saturday, October 21, 2006, from 9 am-3 pm. The theme for this year's conference will be EXPERTISE IN THE COURTROOM: SCIENTISTS AND WIZARDS.
Speakers include Professors Susan Haack (Miami), Michael Risinger (Seton Hall), Jennifer Mnookin (UCLA), Simon Cole (Univ. Calif.-Irvine), Gary Edmond (Univ. New South Wales), L.H. LaRue (Washington and Lee University), Robert Mosteller (Duke), Micheal Lynch (Cornell), and David Caudill (Villanova).
Controversies persist in the regulation of expertise in the courtroom, even after the Daubert/Joiner/Kumho Tire Trilogy, and even in Frye jurisdictions (like Pennsylvania). Judicial images of science and scientists of their capabilities and their limitations - continue to affect judicial evaluation of expertise. Indeed, as Professors Caudill and LaRue argue in their forthcoming NO MAGIC WAND: THE IDEALIZATION OF SCIENCE IN LAW (Rowman & Littlefield, 2006), trial judges who defer too easily to science, or who expect too much of science, end up (respectively) admitting questionable evidence or rejecting some of the best science.
DDVP and EPA
Interesting piece from the Scientific American blog:
Dichlorvos, or DDVP, is a household pesticide related to World War II-era nerve agents. In May the Environmental Protection Agency proposed its continued sale, despite considerable evidence suggesting it is carcinogenic and harmful to the brain and nervous system, especially in children. On several occasions, the agency has come close to banning the pesticide--used in no-pest strips as well as in agriculture--but has always backed away. Environmentalists and labor unions charge that the latest decision was the product of backroom deals with industry and political interference--just as they did 25 years ago, when the EPA first considered a ban on DDVP and other similar pesticides.
August 13, 2006
Prisoner Drug Testing
The NYT has a summary of a federal panel's recommendation to reinstate broader use of prisoners for testing drugs, with various safeguards in place in an attempt to avoid the sorts of abuses that took place in the past. The issue, of course, raises all sorts of questions about power dynamics and how informed consent can be in that context.