October 14, 2006
Not that I ever witnessed loaded questions while in practice, but if you do, this Language Log piece might be of interest.
October 13, 2006
Paul Caron cites the "juice score" of a bunch of law prof blogs, but not TortsProf. (And a single tear runs down my cheek.) Because I am certain you are desperate to know, the blog comes out pretty well, comparatively speaking, at 5.0.
Barbour Celebrates Legislation Anniversary -- Let's See, You're Supposed to Give Cotton on the Second Anniversary
Haley Barbour, governor of Mississippi, went on a "whirlwind tour" (Northeast Mississippi Daily Journal) yesterday to celebrate the two-year anniversary of the passage of various liability modifications. As with another recent Mississippi story, Barbour and his allies attribute the legislation with reducing frivolous suits rather than focusing on the more direct effect of reducing overall exposure in both frivolous and nonfrivolous suits, and that story doesn't do much to question the cause-and-effect he suggests. The Hattiesburg American story does a better job covering the various factors.
October 12, 2006
Another McDonald's Gluten Lawsuit
This one is brought on behalf of an autistic boy who contends that the consumption of the gluten and casein (not disclosed prior to February 2006) exacerbated his symptoms. The complaint includes this fairly broad claim:
In most cases, elimination of gluten and casein from an autistic child’s (diet) results in dramatic improvements in the child’s condition, often enabling the child to attend mainstream educational programs in a matter of months.
The U.S. Supreme Court's pronouncements on the standards that should govern the admission of scientific and other expert testimony, what is commonly referred to as the Daubert Trilogy, has produced substantial legal commentary and a growing body of empirical research. Most of that research focuses on decisions by courts on Daubert challenges; while there is some speculative discussions on the broader impact of Daubert, there is minimal empirical research assessing the impact of Daubert more broadly on the litigation process. Drawing on a combination of observation in a law firm and a series of interviews with practitioners, this paper describes the process of decision making about Daubert related issues. The conclusion drawn from the analysis is that Daubert has become a routinized aspect of the litigation process in a range of cases, few of which deal with the kind of controversial or innovative science at the heart of the original Daubert case.
This seems generally unshocking, but worthwhile confirmation that most of Daubert's effects aren't in big controversial cases. Of course, the outcome of the non-big non-controversial cases are likely the same in most instances under pre-Daubert approaches -- it's in the marginal cases that Daubert would presumably make a difference (if it does at all).
October 11, 2006
NEJM & Drug Safety
Two editorials in this week's NEJM on FDA matters:
- Bruce M. Psaty, M.D., Ph.D., and Sheila P. Burke, M.P.A., R.N., Protecting the Health of the Public -- Institute of Medicine Recommendations on Drug Safety [free PDF linked from here]. Though Psaty does not disclose it in the article, he has served as plaintiffs' expert counsel in many pharmaceutical products cases, including the Baycol litigation (in which I served as defense counsel). I'm not sure if he's involved in the Vioxx litigation discussed in the article.
- Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D., Blueprint for a Stronger Food and Drug Administration [free PDF linked from here].
On a quick read, both seem generally pleased with the IOM recommendations regarding FDA reforms and seek greater flexibility than the binary approved/disapproved options the FDA currently possesses -- i.e., greater post-approval powers.
October 10, 2006
Abusive Removals (updated)
First, over the last decade, tort filings in state court are down [around four to five percent].
Second, despite the shrinking pool of state-court filings, diversity-based tort removals from state to federal court have not commensurately declined over the last decade. One would think fewer cases means fewer removals. Instead, defendants are removing nearly the same number of diversity tort cases despite shrinking state court tort dockets.
Third, cases removed from state to federal court account for an increasing proportion of the federal courts' docket. . . .
Finally, and most importantly, remand rates are increasing over time. . . . In recent years, more than 20% of diversity tort cases removed to federal court were remanded to state court. That's a substantial increase over the remand rate in the early 1990s.
It's an important point -- plaintiffs are of course not alone in abusive practices. That said, I wonder if some portion of the increasing rate in removals has to do with what are at least questionable attempts to defeat diversity in the first place (that might be increasing). Who really believes that in a products case the local sales representative is going to be in the case by the time it gets to trial? Those cases will often be removed, even with a pretty strong chance of remand. It would be interesting to see some more details on at least a sampling of the cases analyzed
But that's not to take away from the overall point of the column, which is a reminder that attempts to eliminate abusive and wasteful practices need to be party-neutral.
I'll look forward to the full work to be published in the Journal of Empirical Legal Studies. Update: In an e-mail, Trevor points out that the article actually came out last November, and that the column came from the summer of 2005. He reports that the full article does explore Alabama cases in a somewhat more detailed way but that the analysis is not definitive.
Sebok on Scalia & Punitives
Writ column here.
Student Defeats Prof; Daubert Defeats Mold
Paul Frankenstein's Cert. Denied team defeated your TortsProf Raspberry Tort(e)s. Alas.
In non-football-related news, Point of Law (who reads the Volokh Conspiracy so I don't have to)
links to a David Bernstein post suggesting that a Massachusetts case excluding mold-autism expert testimony is evidence of the delights of Daubert. That may be, but as the comments point out (before they become yet another vaccine-autism debate), the non-anecdotal evidence is far from clear on that point. I certainly think Daubert would make a difference, and perhaps has, if consistently applied by judges with the resources to apply it well, but I'm not sure those exist in the numbers we might like.
October 9, 2006
9/11 Rescuers & Line of Duty
Findlaw has a story about line-drawing and the unfortunate consequences in tough cases:
As the World Trade Center burned, Glenn Winuk rushed to the scene from his law office to offer his skills as a veteran paramedic. He died with surgical gloves on and a medic's bag at his side. A card in his wallet identified him as a volunteer firefighter.
"He died a hero," said his brother, Jay.
Yet, in the eyes of the federal government, he did not die in the line of duty.
Winuk had not been on active duty since 1998.
"I recognize the decedent's heroism that day and readily acknowledge and salute his bravery: Glenn J. Winuk gave unstintingly of himself, under the most dreadful circumstances, and gave unto death itself," wrote Domingo S. Herraiz, director of the Justice Department's Bureau of Justice Assistance.
"The law does not entrust me, however, with authority to distribute federal benefits in recognition of the ultimate sacrifice paid by Good Samaritans, no matter how deserving."
Complex Poltiics in Florida
As I've posted about a number of times (just look through the legislation/reform category), Florida has been making all sorts of modifications to the tort system. Today''s Sun-Sentinel has an interesting piece on Rep. Kottkamp, a republican who voted against last spring's measure.
He is himself a plaintiffs' lawyer and he has a personal injury suit pending against a contractor who, he contends, negligently constructed the hospital in which he contracted an infection.
"This looks like the type of far-fetched lawsuit Republicans in Florida have been trying to stop the past eight years," said Victor Schwartz, general counsel for the American Tort Reform Association, which has guided civil justice changes in Florida.
Schwartz warned the case may foreshadow what Florida business groups quietly fear: That a Crist administration could slam the brakes on the state's drive to limit lawsuits -- a campaign spearheaded by outgoing Gov. Jeb Bush. "Now you've got a trial lawyer on the ticket with a tort case pending," Schwartz said. "That's very unusual."
With duty and legal cause coming up soon in many Torts classes, it's a good hypothetical too.