TortsProf Blog

A programming note...

I will be traveling for the next few days and so will not be posting much if at all.  I may or may not have reliable e-mail access, so don't be offended if I don't respond to your e-mails with my usual compulsive speed.

Tennessee Discussions Continue

...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.

FDA to Limit Financial Conflicts

Pharmalot has a summary.

Pet Food Suit

Sure enough, the AP reports that a putative class action has been filed in Chicago over the Menu Food pet food problems.  Meanwhile, a website is tracking problem reports.

Still no Google AdWords purchases, so far as I can tell.

Regulation by Litigation - Oil Industry Edition

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.

MySpace Briefing

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:

Download MySpaceComplaint.pdf

Download MTD.pdf

Download MTDopposition.pdf

Download MTDreply.pdf

Download MTDruling.pdf

Hilden on Zyprexa

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...)

Pet Food Recall

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.

Torts & Presidential Politics: Clinton

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.

Appeals in the Zyprexa Documents Matter

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.

Ataxia Adventures Cut Short

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.

Oklahoma Is OK, and Also Passing Various Measures

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.