April 21, 2007
Yahoo! Sued! Over! Imprisonment! in! China!
Update on VT Attorney Advertising
I mentioned the speed with which a plaintiffs' attorney started advertising with Google AdSense seeking clients among the victims of the Virginia Tech shootings. The Google search I used no longer comes up with that ad, though the advertising website still has a page.
April 20, 2007
Oklahoma Adopts Modifications
Fred Thompson & "Tort Reform"
The National Review has an opinion piece evaluating Fred Thompson's potential presidential candidacy as it relates to modifications to the tort system.
(I'm hoping to return to my series of pieces about candidates' stated positions on the subject soon.)
April 19, 2007
Comparative Tort Law & Tort Reform
Jennifer Wriggins (Maine) points out an article potentially of interest to folks into comparative tort law -- Tort Reform A La Francaise: Jurisprudential and Policy Perspectives on Damages for Bodily Injury in France by David Corbe-Chalon and Martin Rogoff, in 13 Columbia Journal of European Law 231 (2007). It's not available for free online so far as I can tell.
Law & Science & Shameless Self-Promotion
My Nebraska Law Review piece is now out: The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, 85 NEB. L. REV. 643 (2007). I don't have hard copies yet, but it's up at both Westlaw and Lexis; if you're interested in a reprint, send me an e-mail and I'll try to get one to you. The abstract (which does not appear in the journal):
The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.
This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.
In this Article, I explore these phenomena and the criticisms of them, as well as the history of peer review itself. Contrary to the critics, I ultimately conclude that each, in fact, can strengthen both law and science through cross-fertilization, if appropriate checks are established. Such efforts will better reflect law and science’s overlapping magisteria (a term roughly meaning the disciplines’ area of authority). A better recognition and understanding of this overlap will create incentives to improve both law and science.
The Virginia Tech Shootings & Tort Law
So far at least one plaintiffs' firm has bought Google AdSense words:
The ad redirects to this page.
April 18, 2007
"Punitive Damages and Valuing Harm"
A new SSRN posting from Alexandra Klass (Minnesota) (forthcoming Minnesota Law Review) addresses valuing harm (i.e., the denominator in the 9:1 punitives: compensatory ratio) under State Farm and its progeny. The abstract:
In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant's misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court's current framework and the purposes of punitive damages justify departure from that ratio. This Article uses actions involving intentional torts on the one hand and private party actions involving environmental harm on the other to illustrate how lower courts have failed to fully implement the exception to single-digit ratios. This Article proposes that in conducting a due process analysis of punitive damages, courts should focus on the existence of uncompensated harm to either depart from single digit ratios or, in the alternative, calculate punitive damages based on the full amount of harm even if that exceeds the compensatory damage award. To avoid “windfalls” to plaintiffs in cases involving harm to public natural resources, state legislatures or state courts should utilize a “split-recovery” approach to direct a significant portion of punitive damages based on public harm to governmental or nonprofit coffers for environmental remediation. Such an approach is consistent with due process while still fulfilling the purposes of punitive damages.
April 17, 2007
What Happens in Vegas Stays in Vegas, Except that the JPML Presumably Keeps a Written Record
In any event, let's see what they have on tap...
- MDL-1836 -- In re Mirapex Products Liability Litigation (several dozen cases; I've posted about this drug before).
- MDL-1842 -- In re Kugel Mesh Hernia Patch Products Liabitity Litigation (I never heard of this one before, but, sure enough, it's been withdrawn and has all sorts of Google AdWords from client-recruiting lawyers).
- MDL-1844 -- In re Air Crash Near Peixoto de Azeveda, Brazil, on September 29, 2006.
- MDL-1845 -- In re ConAgra Peanut Butter Products Liability Litigation.
- MDL-1850 -- In re Pet Food Products Liability Litigation (wow, I didn't realize there were that many suits already - looks like over a dozen).
That's it for torts-related cases with oral argument.
April 16, 2007
Punitives Symposium Announcement
Punitive Damages, Due Process, and Deterrence: The Debate after Williams
Hosted by The Charleston School of Law
Friday, September 7, 2007
8:00 a.m. to 5:30 p.m.
Last February, the United States Supreme Court added another layer to its punitive damages jurisprudence in Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007). This one-day symposium brings together distinguished scholars, judges, and practitioners to engage in a dialogue concerning the implications of Williams, and more generally, the role of punitive damages in modern litigation. We invite you to join us.
This conference was organized by Sheila B. Scheuerman, Associate Professor of Law, Charleston School of Law.
8:00 a.m. Continental Breakfast and Registration
8:15 a.m. Introduction & Welcome
8:30-10:00 a.m. Panel I: The Implications of Philip Morris v. Williams
10:00-10:15 a.m. Break
10:15-11:45 a.m. Panel II: The Theory of Punitive Damages: Why Do We
Award Punitive Damages And What Factors Further That
11:45-12:45 p.m. Lunch
12:45-2:30 p.m. Panel III: Looking Forward: Punitive Damages In the Next Two
Decades – Guideposts From Precedent, History & Sound Public
2:30-2:40 p.m. Break
2:40-4:10 p.m. Panel IV: The Relationship Between Punitive Damages and Class
4:10-4:15 p.m. Break
4:15-5:30 p.m. Panel V: Williams At The Trial Level: Jury Decision Making
and Trial Strategy
Confirmed Panelists Include:
Theodore Boutrous, Jr.
Gibson, Dunn & Crutcher LLP
Elizabeth J. Cabraser
Lieff, Cabraser, Heimann & Bernstein, LLP
Executive Vice President
National Chamber Litigation Center
U.S. Chamber of Commerce
Henry Allen Mark Professor of Law
Cornell University Law School
Andrew L. Frey
Mayer, Brown, Rowe & Maw LLP
Murray R. Garnick
Arnold & Porter LLP
Lauren Rosenblum Goldman
Mayer, Brown, Rowe & Maw LLP
John Y. Gotanda
Professor of Law and Associate Dean for Faculty Research
Villanova University School of Law
Laura J. Hines
Professor of Law
University of Kansas School of Law
Keith N. Hylton
Paul J. Liacos Scholar in Law and Professor of Law
Boston University School of Law
John J. Mulderig
Associate General Counsel
Altria Corporate Services, Inc.
Robert S. Peck
Center for Constitutional Litigation, P.C.
Associate General Counsel
Altria Corporate Services, Inc.
Thomas F. Lambert, Jr. Professor of Law
& Co-Director of Intellectual Property Law Concentration
Suffolk University Law School
Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
Anthony J. Sebok
Centennial Professor of Law and Associate Dean for Research
Brooklyn Law School
Catherine M. Sharkey
Professor of Law
Columbia University School of Law
Russell M. Robinson, II, Professor of Law and Professor of Psychology
Duke Law School
Honorable William W. Wilkins
United States Court of Appeals for the Fourth Circuit
Tuition for the conference is $150.00. For academics and government officials, the cost is $100.00. Tuition fee includes continental breakfast, boxed lunch, and conference materials. Registration details will be provided at a later date.
For additional information contact:
CONTACT: Sheila B. Scheuerman, Associate Professor of Law, Charleston School of Law
NASA Settled Columbia Suit
Via FOIA, the Orlando Sentinel obtained documents that reflect that NASA paid the survivors of Space Shuttle Columbia astronauts $26.5 million in settlements. The settlements took place over 2 1/2 years ago but were kept secret.
April 15, 2007
Letter: Litigation and Research
A while back, I posted about a dispute regarding the impact of litigation on research, in particular in the context of the neurological effects of welding rods. One of the attorneys involved (who was involved in the correspondence in Neurology, sent the following. As I noted in the previous post (and consistent with my article linked to in that post), I generally think the dangers of such discovery are overstated.
Dear Professor Childs:
You recently called your readers’ attention to a publication by Dr. Brad Racette, entitled "The impact of litigation on neurologic research," published in 67 Neurology 2124 (2006). Dr. Racette, along with his legal counsel, decries the untoward effect of litigation on research generally, and on his research specifically. As you noted, Dr. Racette, along with his co-authors and legal counsel, and I engaged in a further exchange of views in the Correspondence section of Neurology, but the 400-word limit on letters to the editor prevented a full exploration of the issues. Dr. Racette’s response suggests that the federal court ruled that the subpoena prosecuted was over broad and burdensome. Most readers will discern the obvious equivocation in that a quashed subpoena would have placed no burden upon Dr. Racette. To the contrary, the subpoena at issue was served with a proposed protective order and an invitation to discuss how the subpoena and the order might be modified to protect legitimate interests. Those invitations were rebuffed, and the Court ultimate enforced the subpoena in large part; hence Dr. Racette’s belated special pleading in the official journal of the American Academy of Neurology.
Indeed, there is much more I could say about Dr. Racette’s activities in conducting the screenings of Alabama workers, which "medico-legal" activities gave rise to his published papers. See Racette, et al., Prevalence of parkinsonism and relationship to exposure in a large sample of Alabama welders," 64 Neurology 230 (2005); Racette, et al., "A rapid method for mass screening for parkinsonism," 27 Neurotoxicology 357 (2006). Unfortunately, a cloak of secrecy has been imposed, in the form of Court-imposed protective orders, and I am not at liberty to share all that I know with people who have not signed a mandated non-disclosure affidavit.
It might be helpful, however, to restate why the discovery provisions of state and federal rules of civil procedure are needed at all in the context of scientific studies, whether or not the studies enjoyed sponsorship by parties to litigation. After all, scientific studies are interpretations of analyses, often statistical, of data, which in turn represent multiple levels of hearsay. Consider a typical epidemiologic study. Patients give self-reports of symptoms. Physicians evaluate signs. Diagnostic tests are conducted, and their results reported and interpreted. Consultations may be sought. Diagnoses may be reached, and conveyed to patients, who in turn self-report their medical histories to subsequent treating physicians. Opportunities for error and systematic bias exist at every stage of the process of collecting diagnostic information and attempting to relate it to occupational, environmental, pharmaceutical, or lifestyle exposures.
In our legal system, expert witnesses are generally permitted to hold forth with their opinions, based upon studies they did not conduct. Moreover, expert witnesses need not even be able to describe and vouch for the reliability of the many steps involved in conducting the studies upon which they rely. All they need do is accredit the study as one that they believe experts in their field would reasonably rely upon, and they are then permitted to build upon, and draw inferences from, the multi-layered hearsay study as though it were a proven fact. Typically, the expert witness tries to accredit the study by virtue of the authors’ reputations, the journal’s prestige, the claimed rigor of the peer-review process, and the lack of challenge to the study in the scientific literature. This method of accrediting studies can be highly effective in front of unsophisticated judges and jurors, who do not appreciate the severe limitations in the peer-review process. At best, all these lines of accreditation are weak, indirect proxies for the truth.
As the coat of arms of the Royal Society proclaims: "Nullius in verba." See http://www.royalsoc.ac.uk/page.asp?id=6186 <visited on April 14, 2007>. Or as the late President Reagan said in folksier style: "Trust but verify." The Korean cloning scandal, cold fusion, and other painful examples illustrate that scientists do an imperfect job of policing their community and their journals. Maybe the truth prevails in the fullness of time, but time is not a luxury that a litigant, plaintiff or defendant, caught in the jaws of the U.S. mass tort system, enjoys.
The example of the Hemorrhagic Stroke Project ("HSP"; also known as the Yale Stroke Study) is illustrative of how a study, with all the indicia of reliability, can go badly astray. Because of continuing concern over a possible relationship between the use of medications containing phenylpropanolamine ("PPA"), the FDA suggested that the manufacturers sponsor study to look for an association between recent use of PPA and hemorrhagic stroke. The manufacturers complied, and the sponsored a study, which enjoyed an independent scientific advisory board and FDA oversight. The manufacturers had no control over the conduct of the study, and the investigators retained scientific and editorial control over the work.
The HSP was a multi-centered case-control study that looked for hemorrhagic strokes in persons within an age range, and then examined whether any of them had used PPA-contained medications within a specified time frame of the onset of the stroke. The principal investigators of the HSP were highly accomplished scientists, but most of the work was done by their juniors, eager to establish themselves in tenured faculty positions. Notwithstanding the prestige of the principal investigators, the university (Yale) where the analysis was done, the oversight of disinterested scientists, open presentation of the results to an FDA Advisory Committee, the study was flawed by errors that led directly to the finding and reporting of an association in the paper, which was a featured publication in the New England Journal of Medicine. When the defendants in the PPA litigation sought discovery into the underlying data, plaintiffs’ counsel ridiculed the defendants’ efforts to discredit the "industry’s own study." Although plaintiffs were able to get past reliability challenges in federal Multidistrict Litigation, the problems with the HSP proved well-nigh insurmountable – defendants won virtually all the cases tried to verdict in the PPA litigation. After one of the first defense wins, plaintiffs sought a new trial on grounds that they were prejudiced by the extent to which the defendant attacked the validity of the HSP. At oral argument, the trial judge, Hon. Anthony J. Mohr, rejected this challenge and expressed his own skepticism about the integrity of the HSP. See, e.g., O’Neill v. Novartis Conumer Healthcare, Superior Court for California, County of Los Angeles, Transcript of Post-Trial Hearing at 47 (Mar. 18, 2004)("Yale gets a black eye"), aff’d, ___Cal. Rptr. 3d ___, 2007 WL 586606 (Feb. 27, 2007).
The skepticism about a study such as the HSP is likely to be heightened when the study had been sponsored by an interested stakeholder. It is not only industry that has sponsored studies designed to be brought to bear on public health policy issues. Organized labor has frequently sponsored such studies, as evidenced by the collaboration between the asbestos insulators’ union and the late Irving Selikoff. More recently, plaintiffs’ counsel have directly and indirectly sponsored studies with the goal of deploying them in litigation. Several blatantly fraudulent studies, funded by plaintiffs’ counsel or by plaintiffs’ support groups, for the silicone gel breast implant litigation, helped fuel the celebrated Daubert exclusions in that litigation. The fraudulent and unreliable nature of many of the silicone studies would not have been detected if not for the subpoena-supported inquiry into the underlying data of the questionable studies.
In both science and law, studies can not be properly explored for reliability without full access to the underlying methods and data. Most journals impose severe page limitations, which prevents the sort of openness of access to data, called for by the National Academies of Science and the National Institutes for Health. Some journals now require that underlying data be submitted upon acceptance for peer review or for publication. Some of the more methodologically savvy journals have even started to make important aspects of the study, such as questionnaires and raw data sets, available as supplemental content on their websites.
Perhaps I should take solace from the following observation. Although Dr. Racette’s work in Alabama was sponsored by plaintiffs’ counsel, plaintiffs’ counsel themselves have rejected the strictures called for by Dr. Racette. In the litigation over alleged neurologic effects of welding fume exposure, plaintiffs’ counsel aggressively have sought the data underlying studies sponsored by defendants. Dr. Racette’s public relations efforts took his special pleading to the pages of Business Week, where he complained about having to sit for three depositions. See Arnst, "Keeping Lawyers Out of the Lab," Business Week (Feb. 5, 2007). (All these depositions involved the treatment and care of specific patients, and they were in no way different from what treating physicians routinely encounter. Inquiries into the research sponsored by plaintiffs’ counsel was deemed off limits by Dr. Racette’s counsel.) I have to say that I agree with the spokesperson for the American Association for Justice, née ATLA, who was quoted in this Business Week article as not being moved by Dr. Racette’s lament. Prohibitions against the discovery of underlying data can serve only to perpetuate the false allure of scientific infallibility, while denying litigants the right to confront and cross-examine the crucial expert witness opinion testimony that is built upon the shaky foundations of poorly conducted research. We should reject the proposal to create a privilege or a barrier that would deny litigants access to the crucial determinants of the validity of the evidence offered against them.
McCarter & English, LLP
N.B. The views expressed above are my own personal views, and not necessarily shared by my firm or my clients. I think it is likely obvious, but I will say it anyway: I have typically represented defendants in product liability cases, and I have been on both sides of demands for underlying study data.
Congratulations to WNEC Products Liability Moot Court Team
Pardon my personal plug here, but it is related. I'm returning home this morning from Cincinnati, where the team from Western New England College School of Law got to the seminfinal round in the Rendigs Memorial Products Liability Moot Court competition. It was our first year participating, and to get to the final four was a terrific result (and, so far as anyone recalls, unprecedented for new participants).
The team -- made up of 3Ls Stephanie Schlatter and Neal Eriksen and 2L Andy Kralios -- wrote a terrific brief [PDF] and presented the arguments very well, receiving uniformly excellent feedback from the judges.
The problem [PDF] was a good one, involving interesting and close questions about duty to subsequent purchasers, open and obvious dangers, sophisticated users, and (in what made my heart sing) a dispute about whether Frye or Daubert is the better standard for scientific evidence.
Thanks to everyone at the University of Cincinnati College of Law for running a great competition, and congratulations to the finalist teams, both from South Texas College of Law.