October 7, 2006
On the Duty to Rescue
For more than a century, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will decrease the frequency of non-rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective, the critical threshold question - how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so - is entirely factual. This article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the article provides a "law and reality" perspective on rescue and non-rescue that complicates - and sometimes is flatly inconsistent with - the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue, and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule - even if it is not the law.
David Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 Tex. L. Rev. 653-738 (2006)
October 6, 2006
Off-Label Usage and Side Effects
Interesting post (and accompanying comments) from Judith Warner on NYTimes.com. (It may require TimesSelect; I can't tell readily if it's noticing my membership or not.) The basics:
In early 2005, [Lisa] Collins became pregnant and continued taking [Paxil], with her doctor’s approval, for the first nine weeks of her pregnancy. In November of that year, she gave birth to a baby boy with severe heart abnormalities. A few months later – at just around the time that the baby, Chase, had open-heart surgery, followed by a series of debilitating strokes – Collins heard on the TV news that antidepressants like Paxil had been linked to birth defects.
At about the same time, the F.D.A. updated its Web site to include information on studies linking Paxil use in pregnancy to cardiac defects in infants, approved new labeling for the drug to warn of these risks, and had Paxil recategorized as a Class D substance – one that, in studies of pregnant women, has demonstrated a risk to the fetus.
Collins is now in the process of suing Paxil’s manufacturer, GlaxoSmithKline, and the physician who prescribed it to her.
The potential risks and potential liability on GSK's part aren't Warner's focus, though:
She was prescribed Paxil not because she was depressed, not because she was suffering from severe anxiety, but because she seemed to have symptoms of irritable bowel syndrome and claustrophobia.
* * *
The issue that tugs at me is the offhandedness with which serious drugs are prescribed for not-so-serious issues.
New LawProf Blogs
Details on TaxProf Blog.
My understanding is that that the network of which this blog is a member now has over 50 of the 300 or so law professor blogs cataloged at Concurring Opinions. We are
Borg LawProfessorBlogs.com and you will be assimilated educated.
OT (mostly): How to Cure Hiccups
If that's the standard of care, I don't want to be cared for non-negligently.
October 5, 2006
Some interesting points from it:
First, the authors of the memo are quite cautious in their description of the cost/benefit analysis and its value:
They are similarly cautious in their description of the dollar figures allocated to the costs:
(The memo continues with a further description of the cost figures.)
Now, the memo does suggest that the authors believe that the cost/benefit analyses would come out similarly for other "impact modes" (e.g., rear-end collisions):
But even that, let's remember, is in the context of a proposed regulation applicable to fuel systems, and this is a document prepared to address that regulation. It is not a discussion of tort liability, and the "costs" do not reflect tort costs to Ford, but societal costs.
I don't think I've linked to Tort Deform as yet. It's a project of the Drum Major Institute, and it's got some interesting items from time to time. It is worth reading.
That said, I've got some issues with today's post from a factual standpoint. [Update: The TortDeform post has removed the memo excerpt and noted the errors in the version on the front page; at least right now, the first link in this paragraph still goes to a version with the memo.] The basic idea of it is to use the Ford Pinto gas tank litigation as a basis for an argument against a variety of liability modifications.
To be clear, I'm generally opposed to many of the modifications that they're against (caps, etc.), but let's take a look at the use of what is identified as "the actual Ford memo relied upon in deciding to let people die." Earlier in the post, it is made clear that the subject is the gas tank:
The gas tank in the Pinto was known by Ford engineers to be defective. If a Pinto was rear-ended at under 30mph, there was a likelihood that the gas tank would be torn open by protruding bolts, causing gasoline to pour into the car's interior. At 40mph, the same thing would happen... except the doors would also be jammed shut and people would be trapped in their burning Pinto.
And here's the excerpt shown in the post:
Now, a couple of years ago, I wanted to talk about this very memo in class, and I dug around for a few minutes and found this version of it:
Now, the one I found is clearly different, so maybe it's not the original. Given the timeframe, my guess is that the one on Tort Deform is the original one (given its non-proportional typeface).
But I do notice that the latter one has a header that suggests the issue involves rollovers, not rear-end collisions, and it seems unlikely that it was simply made up. If that's the case, it may be problematic in other cases, but not in rear-end cases.
I also note that among the "costs" (on both versions) are "11 million cars" and "1.5 million light trucks." I cannot imagine that there were ever 11 million Pintos sold, and I'm quite certain that the Pinto was never a light truck.
Gary Schwartz's piece at 43 Rutgers L. Rev. 1013 (1991) did a nice job, fifteen years ago, of explaining the myths associated with the memo -- and pointing out that it was not admitted in the trial precisely because it was irrelevant. It was directed at a proposed NHTSA regulation and used NHTSA's numbers for the financial figures associated with injuries, deaths, etc.
Maybe Ford did this sort of calculation as related to rear-end collisions. Maybe it would be irresponsible for them not to do such a calculation, or maybe it would be irresponsible for them to do one. But this does not appear to be that calculation, and so it's really not the smoking gun it typically gets identified as.
But there are enough good arguments against to the liability modifications involved that I don't think this needs to be in the mix.
[Note: There are rather interesting bits in the comments to this post as well.]
$217M for Misdiagnosis
In what's being called one of the biggest verdicts in Florida history, a jury awarded $217 million ($100 of it punitive damages) for the failure to diagnose a stroke. The plaintiff ended up in a wheelchair with an ongoing danger of choking when swallowing.
The family says that any punitive damages they collect will be donated to medical research organizations.
The evidence indicated that the person who first evaluated the plaintiff at the emergency room when he presented with symptoms consistent with a stroke and a (reported) family history of stroke was an unlicensed physician's assistant.
Greedy Trial Lawyer disputes the notion of calling this a "jackpot" award and provides some additional facts, both about the incident and the litigation (including the carrier's offer to settle the case for a total of $300 [not $300K, but $300]).
October 4, 2006
ASTAR is Born
Okay, it's actually not newborn, but I like the phrase too much.
ASTAR ("advanced science and technology adjudication") looks like a useful group. Their mission statement:
ASTAR oversees the effort to identify, recruit, train and deploy science and technology resource judges. ASTAboard sets the standards and certifies judges' science and technology training , including the ethical use of new science and technology knowledge and skills in comportment to the Canons of Judicial Ethics. ASTAR's training is open to attorneys from all aspects of the practicing Bar in order to assure transparency. Begun in 2005 as a partnership of the Supreme Court of Ohio and the Court of Appeals of Maryland, membership opens to all jurisdictions mid-2006.
You can hear more about it, including their origins in the human genome project, at this week's Scientific American Science Talk podcast, which you should be subscribing to anyway. Their "science school" starts tomorrow.
Defibrillators & Pacemakers & Devices, Oh My
As far as the law is concerned, those individuals whose pacemakers fail are the lucky ones.
That's the lede to a story giving an overview of the Medtronic and Guidant pacemaker and defibrillator litigations. The West Virginia attorney around whom the story is centered has (with a group of plaintiffs' attorneys) around 200 cases each against Medtronic and Guidant in MDLs in Minnesota. His estimate is that the MDLs may end up with as many as 5,000 cases.
October 3, 2006
OT: Patents Strike Back
Plus, I won in my other league, causing much weeping by the commissioner, who happened to write about it for Yahoo!:
Regular readers might recall the League of American Recreational Gridiron Enthusiasts, or "L.A.R.G.E.," which is my personal primary fantasy league. And in this league, I was doing pretty darn well at about 3:50 p.m. ET on Sunday. Willis McGahee had (finally) scored a touchdown. Lawrence Tynes had kicked until his throbbing Scottish foot could kick no more. And my opponent had gotten nothing from his early-game charges. The Carolina Panthers needed a single first down to ice their game against the Saints, and the world was right.
Then DeShaun (Friggin') Foster struck. He rushed around the end, got the first down, realized that, well, no one on the New Orleans defense seemed to want to tackle him, and took it to the house. A meaningless 43-yard TD on a day when he otherwise had 15 carries for 62 yards. Needless to say, my L.A.R.G.E. opponent started Foster. But no worries; it was unfortunate, but I could survive the hit. The Saints would be getting the ball back, but just as long as Drew Brees didn't hit a long one to Marques Colston everything would be … oh, no. No. No-no-no-no-no-no. Literally 30 seconds of game time later, and Colston had turned a short pass into an 86-yard garbage-time score. He'd otherwise have had four catches for 46 yards. And yes, my L.A.R.G.E. opponent started Colston.
The most brutal 30 seconds in fantasy football history.
Since Marques Colston was among the people who killed me in the Blawger league, my joy was tempered, but only a bit. Hey, I beat one of Yahoo's experts! That's good living.
ABA Journal on Texas Reforms
I don't yet see it on their website, but the October ABA Journal has a cover story on the impact of the 2003 changes in Texas state law (which, among other things, capped noneconomic damages), with the subhed "New Laws and Med-Mal Damage Caps Devastate Plaintiff and Defense Firms Alike."
Light Cigarettes - Views
The Consumer Law & Policy Blog calls it "the opposite of radical":
It’s a sad thing indeed when a court is labeled radical when it merely applies the law without any bias except a commitment to the operation of the rule of law. But after years of pro-business appointments to the federal bench and massive infusions of business money to elect their own state judges, this is what we get all too often. It’s refreshing to see a judge who is determined to do nothing but to apply the law. Let’s hope it strikes fear into the hearts of all marketers, who have grown lazy and fat of late, in the absence of any effective control by the federal government on their excesses (but that’s another article).
The LAT calls it "wacky":
Private litigation is a poor excuse for enlightened legislation. If elected representatives are unwilling to do more than they have done already to discourage smoking, federal courts shouldn't be expected to pick up the slack — especially on the basis of "elegant" theories like this one.
Reason sympathizes with the defendants:
If the health advantages of light cigarettes are a myth, it's a myth the federal government propagated and maintained. The government did not merely allow the tobacco companies to advertise the official tar and nicotine "yields" of their various brands; it required them to do so. The tobacco companies certainly took advantage of this requirement, competing against each other to produce the lowest yields, but that was precisely what the government expected and wanted to happen, in the hope that smokers would switch to less dangerous brands.
Wait a second -- if they hadn't smoked the lo-tar cigs, what would they have done? Smoked hi-tar brands? Do the latter cost less? My feeble, insensitive mind doesn't quite grasp the logic of this latest tobacco suit.
Still Plenty of Work for Nurses in Litigation
...so says Vicky Milazzo, who trains "legal nurse consultants" in a piece that first seeks to establish that liability modifications haven't affected the career opportunities for her customers, and then to argue against those and other modifications. It's also got this tidbit:
I even see a day when it will be considered legal malpractice for an attorney not to have legal nurse consultants working behind the scenes on their cases.
October 2, 2006
Cancer & Chicken & (Maybe) Fake Groups
So last week a group called "Physicians' Committee for Responsible Medicine" sued (press release) McDonald's and other companies, alleging that their chicken products contain PhIP, a "dangerous carcinogen."
But there are also assertions that the PCRM is essentially an animal-rights group with its goal conversion of people to vegetarianism, with perhaps only five percent of its members being physicians. (Of course, the group making those assertions is itself funded by restaurants and food companies.)
Open Source Peer Review
Blog 702 has more.
October 1, 2006
Scope of Consent
My Torts classes this term have just finished our section on consent, including a discussion of the scope of consent to contact in sports being limited by the safety rules and customs. If you're looking for a current example, you don't get much more current than this incident in today's Cowboys/Titans game. I'll keep an eye out for video of it too.
Update: Still no video, but a photo and more details here. Yet another update: that link (from ESPN) now has video.
LAT on FDA
Worth a quick read.
Letters; They Get Letters
The good people of Mississippi have been busy, writing all sorts of letters to the Jackson paper about that state's liability changes in the last few years. In today's paper alone, I count three, plus one a week ago. Actual citizen interest? Something more concerted?