TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, April 28, 2007

Products Blogs

The Drug & Device blog has a very useful overview of blogs touching on drugs & medical devices (and I don't just say nice things because they like this blog).

In other news, soon -- possibly as soon as this week -- I'll be joined by a new co-editor.  I recently took on some new stuff that made me want to get some help on this, plus I'd been planning on recruiting a co-editor pretty much since I started.  More on that once it's all confirmed.

April 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 26, 2007

More on the AAJ Response to the ILR Study

Stephanie Mencimer (The Tortellini blog) isn't impressed, either.

April 26, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Dueling State Rankings

So you've got the Chamber of Commerce's Institute for Legal Reform rankings of states' litigation climates on the one hand.

And you've got AAJ's response, which includes the "ten worst states to get sick or injured in" (and I know dangling prepositions are mostly considered acceptable now, but it still grates to have that in a title).

As the AAJ points out, the ILR's survey isn't anything more than a survey of in-house counsel and litigators (defense side) ranking various states on criteria that the ILR considers relevant.  Actually, the ILR makes that clear too:

The 2007 State Liability Systems Ranking Study was conducted for the U.S. Chamber Institute for Legal Reform among a national sample of in-house general counsel or other senior corporate litigators to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business.

The AAJ response is a bit more emphatic:

“This latest propaganda is a made-up survey primarily of corporate lawyers earning millions of dollars defending their CEOs from being held accountable,” said Jon Haber, chief executive officer of the American Association for Justice. “The Chamber will stop at nothing to destroy the civil justice system in America, which protects the rights of consumers, employees, and shareholders against corporate wrongdoing and negligence.”

The AAJ's "ten states" list is of ten states with liability modifications that the AAJ finds particularly problematic (many of which I'm not fond of either).  It is seemingly focused on restrictions on state (as opposed to private) liability, creating a disjunction with the focus on corporate wrongdoing in the pull quote, but also including various generally applicable damage caps, non-litigation systems for recovery, and so on.

Neither of the reports are particularly helpful in a bigger picture sense, though the rankings do seem to get a fair amount of press every year.  (Hey, that sounds familiar.)  I suppose it is reasonable for legislators or others to want to know what defense lawyers think about the various states, so long as it's not interpreted as being definitive about, well, anything.  Similarly, the AAJ's list could bring extra attention to various statutory provisions that many would see as unfair, but it's far from a comprehensive look at what states are most unfair to injured parties.  In other words, both are pitched as being bigger than they are.

April 26, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 25, 2007

FDA Investigating Zyprexa Data

The NYT story has more. 

The story is written by Alex Berenson, described by Judge Weinstein as "conspiring" to improperly release documents in the litigation.  Berenson describes the document leak as such:

The document from 2000 and others were provided to The Times by James Gottstein, a lawyer who represents mentally ill people he says are forced to take psychiatric medications against their will.

April 25, 2007 in Experts & Science, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 24, 2007

New Pharma Study Center at Seton Hall

Pharmalot notes the endowment by several drugmakers of a center to study pharmaceutical legal issues at Seton Hall Law School; NY PI Law Blog is skeptical of its claimed neutrality.  Of course, the entire Temple Law School is now named the Beasley School of Law after a posthumous contribution of $20 million from James Beasley, founder of the Beasley Firm, a plaintiff-side firm that has a substantial (and respected) pharma (and other products) practice. 

The two situations are not apples-and-apples, granted, but I don't think Temple's any more likely to be pro-plaintiff than the Seton Hall center is to be pro-pharma, especially since both are done by endowments rather than pledges of future money (unless I'm reading the coverage incorrectly).

(As usual: I do some work for pharmaceutical companies, though I don't think my clients are among those who have contributed to the Seton Hall program.)

April 24, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Prospects for Virginia Tech Lawsuits

An AP story describes the situation, noting the similarities and differences between the Tech shootings and the Appalachian School of Law shootings a few years ago.

Update: Tony Sebok has a Writ post on the same subject.

April 24, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

The Golfing Gizmo in All Its Glory

Several of my students in my Products Liability course (all of whom were in my very first class three years ago and who are graduating this spring) chipped in and got me a gift of a "Golfing Gizmo," a device from the 1960s and 1970s that is the subject of the Hauter v. Zogarts case (534 P.2d 377 (Cal. 1975)) in David Owen et al.'s Products Liability and Safety casebook and possibly others.  And they even found the same model and manual as is in the case, including the almost-blank-verse notation on the front: "COMPLETELY SAFE BALL WILL NOT HIT THE PLAYER."

The manual (in PDF form) is here: Download Gizmo0001.PDF

For others who teach the case, I present some images you're welcome to use (click on the smaller images to get a bigger one):

The graphic design of the packaging is really quite good.

Ah, the famous House of Zog, right up there with the House of Blues and the House of Representatives.

The key language (which is replicated but with the article "the" added before "player" on the manual, provided above).


A golf ball on a 20-foot cord attached to an elastic strap -- what could possibly go wrong?


The device set up.  (Yes, our yard has seen better days, but we're putting on an addition this year and it's going to be dug up anyway, so that's my excuse, this year, for not reseeding.)

The top of the "T" is made of elastic attached to ground spikes.  The longer part is thick non-stretchy cord.


The full set-up.  The golf ball is attached at the far end of the cord (next to the treehouse post).  And, um, yes, that is a sled on the ground.  Hey, we had snow less than two weeks ago, honest.

Thanks to my students for the very thoughtful gift.

April 24, 2007 in Products Liability, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Monday, April 23, 2007

FDA Knew of Food Dangers

So says a Post story:

The Food and Drug Administration has known for years about contamination problems at a Georgia peanut butter plant and on California spinach farms that led to disease outbreaks that killed three people, sickened hundreds, and forced one of the biggest product recalls in U.S. history, documents and interviews show.

Overwhelmed by huge growth in the number of food processors and imports, however, the agency took only limited steps to address the problems and relied on producers to police themselves, according to agency documents.

April 23, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Tax Impact of Tort Recoveries for Noneconomic Harm

Paul Caron has a report looking forward to today's argument in the rehearing of the Murphy case.

April 23, 2007 in Damages | Permalink | Comments (0) | TrackBack (0)

A couple of new articles...

Two new potentially interesting SSRN postings:

1.  Kathryn Zeiler (Georgetown/NYU), Charlie Silver (Texas), Bernard Black (Texas), David Hyman (Illinois), and William Sage (Texas) have posted on SSRN "Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims, 1990-2003" (forthcoming in the Journal of Legal Studies)  The abstract:

Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary limits declined steadily over time, that policy limits often act as effective caps on recovery, and that personal contributions by physicians to close claims were rare. Our findings call into question a number of common assumptions about the relationship between physician insuring practices and the medical malpractice liability system.

2.  John Rolph (USC Information & Operations Management Dept.), John Adams (RAND), and Kim McGuigan (Pfizer) have an SSRN posting of a piece that came out in the March Journal of Legal Studies, Identifying Malpractice-Prone Physicians.  The abstract:

We analyze the claims database of a large malpractice insurer covering more than 8,000 physicians and 9,300 claims. Applying empirical Bayes methods in a regression setting, we construct a predictor of each physician's underlying propensity to incur malpractice claims. Our explanatory factors are physician demographics (age, sex, specialty, training) and physician practice pattern characteristics (practice setting, procedures performed, practice intensity, special risk factors, and characteristics of hospital(s) on staff of). We divide physicians into medical and surgical/ancillary specialty categories and fit separate models to each. In the surgical/ancillary specialty group, physician characteristics can effectively distinguish between more and less claims-prone physicians. Physician characteristics have somewhat less predictive power in the medical specialty group. As measured by predictive information, physician characteristics are superior to 10 years of claims history. Insofar as medical malpractice claims can be thought of as extreme indicators of poor-quality care, this finding suggests that easily gathered physician characteristics can be helpful in designing targeted quality of care improvement policies.

April 23, 2007 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0) | TrackBack (0)