Saturday, March 31, 2007
I've previously posted a little about the lawsuit on Friday Night Lights (on NBC, and I think the best drama on TV right now) (and, incidentally, co-produced by Sarah Aubrey, one of my law school classmates). The short version is that a high-school quarterback was left permanently in a wheelchair after attempting to tackle an opponent, and, over his opposition or at least frustration, sued the school district and coach. In this week's episode, the case settles.
In the settlement conference, the district's attorney first noted their immunity argument and even (accurately!) referred to summary judgment, then saying that only the coach would be left. (Would he? Seems unlikely, but maybe.) Noting the coach's relative lack of assets, they argued for a small settlement. The plaintiffs' attorney then described how compelling the QB would be on the stand. The QB, who (along with all of the parties) was present, objected to being a prop and wrote down a number that, he said, would deal with the family's debt and pay off the house. The school district accepted, and everyone went about their business (and the Panthers are going to state!).
I suppose it was a decent time for the plotline to end, but it would've been interesting for it to proceed further. Alas. Maybe the QB's new tattoo will get infected and he can sue the tattoo artist (with whom he may be involved, but that's another story).
Okay, that doesn't rhyme.
The Drug & Device blog summarizes a new opinion finding that state warning claims are preempted, in part due to the FDA preemption preamble. Worth a read, and these cases will be well worth following as they work their way through the system.
(As usual, a reminder that I do some work for pharmaceutical defendants who would obviously be affected by these cases.)
Thursday, March 29, 2007
Tuesday, March 27, 2007
I'm traveling (again!) this week and may not get to post much. But the Jackpot Justice website is probably worth checking out. I admit to some skepticism about it, especially the means by which the authors identify costs as "excess" (by comparing US costs to those in other developed countries, which, at least in the introductory parts, isn't particularly well justified as an approach), but it's at the least interesting.
Monday, March 26, 2007
There's an interesting post at Gawker Media site Consumerist with the title, "Tort Reform: What It Is, Why You Should Care, and Why It Is Anti-Consumer."
Edit: A "small type" disclaimer notes that it's written by a plaintiffs' lawyer.
I may have posted about this before, but it's worth mentioning again -- Northwestern is hosting a conference this Friday on "Litigation and Tort Reform."
“Tort reform” has been a rallying cry of the business community for over 25 years, with acrimonious political battles waged with trial lawyers in almost every state capital. But very little is known about the impact of tort reforms. Are tort reforms achieving their goals of reducing the burden of litigation? Do tort reforms have unintended consequences?
Scholars at Northwestern University are among the nation’s leaders in empirically studying the impacts of tort reforms. The goal of this conference is to explore the significance of the cutting-edge research that scholars from Northwestern and other leading universities are undertaking. In order to help bridge the gap from academia to the practical consequences of this research, leading attorneys and protagonists in the public policy arena will critique this important work in a dynamic format designed to sharpen our understanding of the consequences of tort reform.
Wednesday, March 21, 2007
...but they don't look likely to result in any changes this year, says NashvillePost.com. John Day, one of the plaintiffs' lawyers involved in the negotiations, posted in the comments to this earlier post about the negotiations.
Still no Google AdWords purchases, so far as I can tell.
Tuesday, March 20, 2007
David Michaels has a post up regarding the BP plant explosion and the value of litigation in regulation, in particular contending that litigation provides a greater incentive to prevent Bad Things than OSHA or similar regulators:
I’ve heard it said many times that if you go behind closed doors and ask a CEO which one he fears most – OSHA or lawsuits – the answer always is lawsuits. Inspections by OSHA and the CSB may help keep workplaces safe and employers honest, but neither can hold a candle to the power of litigation as a way to encourage the safe operation of factories.
I was pulling these items together for a presentation I'm making in a couple of weeks, and figured they might be of more general interest. Here's the briefing on the motion to dismiss in the MySpace lawsuit that arose from the alleged sexual assault of a minor girl in Austin, Texas, by someone she met through MySpace:
Julie Hilden has posted a Writ column on the Zyprexa document leak. She comes out essentially where I do on the propriety of the conduct of the parties involved -- suggesting that they should have tried the legal methods first. I think without making that effort, any attempt to argue that the leakers were engaging in civil disobedience is silly.
She raises reasonable questions about the value of the protective order in mass torts in the first place, which, as I've noted before (and will address in an in-progress law review article) really depends on how much you consider the litigation system to be a mechanism for public information distribution as opposed to the resolution of private disputes. I think people can reasonably come down on either side on that issue; I would prefer that the information-forcing take place through regulatory means rather than litigation, which is an extremely imprecise tool for such things, but then again, there's plenty of reasons to doubt the FDA's ability to do information forcing well, at least today's FDA.
And she also assumes something that I still haven't seen to be clearly true -- that the documents in fact provide reliable information that was not available before. (I still have not reviewed the actual documents.) Most of the coverage suggests that the documents have all sorts of unpleasant behavior by employees (including most likely improper off-label marketing), but I haven't seen the sort of thing that actual physicians would want to rely upon in making prescribing decisions. Nor have I seen anything that indicates that the leaked documents contained, for instance, data that should have been given to the FDA but was not. I'm open to being wrong on both counts -- and will be reviewing the documents for the article -- but it's not self-evident at this point.
Regardless, it's worth a read.
(Apologies for incoherence - it's my daughter's spring break and her friend's here, so there's more noise than usual...)
The recall of various pet foods involving Menu Foods has been extensively reported. Atlanta's InjuryBoard blog has a preview of probable litigation, including an announcement of a planned class action. Perhaps surprisingly, nobody (yet?) seems to have picked up Google AdWords to find clients, at least not for any obvious search terms I could think of.
Monday, March 19, 2007
Continuing the series of checking out presidential contenders' websites for any mention of tort reform or the like (previously: Obama and McCain, neither of whom said anything about it), today I wandered the website of the Hillary Clinton exploratory committee. Like the others to date, it doesn't discuss tort issues as yet.
- The "issues directory" of the blog has five posts, none torts-related.
- The news release page doesn't have anything clearly torts-related. The "Better Health Care Together" announcement addresses universal health care.
- Google searches for "tort" or "malpractice" on the hillaryclinton.com domains came up empty.
- As I should have mentioned in my Obama post (and I'll go add it in a bit), I've previously noted both of them sponsoring a bill that attempts to encourage apologies and remedial measures after medical mistakes.
Alaska lawyer Jim Gottstein and plaintiffs' expert David Egilman have both filed their notices of appeal from Judge Weinstein's order. Of note, Gottstein has now apparently retained Bracewell & Giuliani (Download 3-13-07NoticeofAppeal.pdf); he was previously represented by an attorney in Alaska.
Well, that was quick.
I sent in an e-mail expressing a willingness to participate in the study I mentioned Saturday and spoke today with a very nice Harvard medical student who's serving as a research assistant. Unfortunately (?), it turns out my symptoms (minimal to date, and possibly nonexistent) mean that I don't actually qualify to be a subject.
Before we established that, though, she did make clear that I was going to be receiving a pretty extensive consent form. Alas, we won't see it, and I won't get either my $100 or the human growth hormone delights.
Three tort-related bills have passed the Senate in Oklahoma.
One reinstates the pre-filing certification requirement (perhaps that's the one this story is referencing?); that certification was struck down by the Oklahoma Supreme Court last year.
A second provides some level of immunity for educators and administrators, I assume for things like grading decisions.
And the final one, from the description, seems to create a new no-duty rule for firearms manufacturers and volunteers.
Saturday, March 17, 2007
Roger Williams is hosting a symposium on "genuine tort reform" on Friday, April 20. What exactly that means is a little unclear, though it seems to be in contrast with most of what's called "tort reform" today:
For decades, the term "tort reform" has been used by those who wish to curtail the civil justice system. Eight of the nation's most prominent scholars (from Cornell, Duke, Ohio State, Wisconsin, and Yale, among others) will suggest proposals for improving the tort and civil justice systems. In addition, two other prominent scholars join members of the Roger Williams faculty to critique the proposals.
(Noted by the Mass Tort Litigation Blog.)