January 13, 2007
The Zyprexa Fun Will Never End
Eli Lilly has submitted a letter to Judge Weinstein regarding the upcoming hearing (scheduled for Tuesday). This sort of catches your eye:
Lilly intends to seek the imposition of sanctions against Dr. David Egilman and James B. Gottstein, Esquire, for their willful and deliberate violation of CMO-3. On December 28, 2006, Your Honor ordered Dr. Egilman to submit to a deposition in New York City, under the supervision of Special Master Woodin. This Order further required Dr. Egilman to produce all relevant documents by 10:00 a.m. on January 2, 2007. Dr. Egilman did not do this. We also learned that Dr. Egilman had deleted and destroyed otherwise responsive materials. Consistent with Your Honor’s December 28 Order, Dr. Egilman provided access to his computers to allow for forensic recovery of these materials.
Although the recovered materials have been provided to his counsel for review and production, Dr. Egilman has still not completed his production.
Egilman's deposition will apparently begin next week.
I've heard that the Freedom Center's radio show (hosted on WXOJ-LP by Will Hall, who's one of the folks on the injunction and an acquaintance of mine) on Wednesday largely addressed this case. I didn't hear it and it doesn't seem to be up on their podcast yet.
Still More on Casebooks
Ellen Bublick (Arizona) reports that the Seattle University Law Review's symposium in its 25th volume is all about Torts casebooks. Unfortunately, the journal doesn't have those pieces online (though they have most of the rest of the volume online), but they are, no doubt, available on Westlaw and Lexis.
January 12, 2007
Well, That Is Exciting - I'm in a Brief!
Among the arguments? Hey, that's a citation to this blog!
(I'm not sure why the fourth line from the end looks the way it does, but it's like that on the PDF.)
I admit to some enthusiasm at the prospect of Judge Weinstein reading my reference to yak herders yodeling.
Research Privileges, Con't
Blog 702 has a much more thorough look at the Neurology piece I referenced yesterday. It's worth a careful read, not just because it cites to me.
January 11, 2007
Reputation Defender in Action
A ways back, I noted a new company that tries to improve clients' reputation online by trying to get unpleasant content about those clients removed from the web, among other things. Consumerist received, and posted, an example of the company's efforts.
January 10, 2007
A Chance to Shamelessly Self-Promote Again
The Drug & Device Blog posts today about a subscription-only article about discovery into research materials in Neurology. Though I don't have the article, it apparently proposes federal legislation protecting research data from discovery.
For a quite different approach on closely-related issues, my forthcoming Nebraska Law Review article, The Overlapping Magisteria of Law and Science: When Litigation and Science Collide (draft on SSRN), addresses discovery into the peer review process, in particular in the context of litigation-driven scholarship. While I do recognize the danger of abuse, I reject the notion that an outright ban on such discovery is appropriate.
I'll be presenting the paper at DRI's Toxic Torts conference in March.
Disney Suit Settled
I'm a few days late on it, but since I've written previously about it, it's worth noting that Disney settled the injury lawsuit relating to a rider's death from a brain aneurysm on its Indiana Jones ride.
The suit has had two potentially significant rulings in it, one evidence-related, one torts-related.
Most recently, the trial court ruled that the park's subsequent changes to the ride could be entered into evidence. The story is maddeningly silent on the basis for the ruling and how it jibes with California's Evidence Code's subsequent remedial measures exclusion. One amusement law blog identifies the ruling as the biggest amusement-related legal story of 2006; I'm not ready to go that far without knowing more about the reason given by the court. I imagine it was being nominally offered to show feasibility or something other than negligence. If so, it's a fairly mundane ruling.
Back in 2005, in the same case, the California Supreme Court held that the jury in the case should be instructed to evaluate the ride under the common carrier standard. As I noted last May, this resulted in much gnashing of teeth, including an outright prediction by a spokesman for the California Attractions and Parks Association that it "puts roller coasters out of business." It has, of course, done no such thing (just as I had predicted). Another publicly-traded company, Cedar Fair, is building yet another coaster in California and even purchased another major park in the state as part of buying Paramount Parks.
(As an aside, it's not quite as crazy as you might think to conclude that a coaster or other amusement ride is a common carrier under the broad California statute in question. Should it be one? That's a different question. But the court opinion is not ridiculous. I wrote about it here.)
In any event, it's interesting that it settled; I think the evidence of amusement rides causing aneurysms any more than sneezing, jumping, and the like is pretty sparse (somewhere there's an industry-funded study that suggests no significant link). But I bet one of the other evidentiary rulings was to admit expert testimony on causation, creating enough risk to justify settlement, especially by Disney, who is known for settling most everything.
January 9, 2007
Statutes of Repose
A while back, I posted about a carnival ride called the Sizzler. There have been a few incidents, including one in 2005 in Austin, Texas, where young riders have been thrown from the ride and injured or killed when they have failed to keep themselves in the designated seating position. In addition to being tragic, they're interesting cases in how they raise issues of comparative fault in the context of young riders and their parents, of design obligations as to foreseeable misconduct, and so on.
But, as Kathy Fackler of SaferParks.org points out to me in an e-mail, no court will evaluate those questions, at least as to that rider and that ride.
You see, the ride is over fifteen years old. And part of Texas's 2003 tort reform legislation creates a limitations period [PDF] of fifteen years from the date of sale of the product by the defendant.
Perhaps that's okay in the big picture. But it's worth considering the impact in small pictures too. I think most people looking at the design of the ride and the height restriction issues would concede that there's at least enough evidence of design defect to get to a jury. (The manual describes the ride on the one hand as being appropriate for 11 year olds to ride alone, but then permits people who are 52" or up to ride alone. The average 52" person is significantly younger than 11.)
There's probably also a claim for negligent operation, even with the apparent fact that the operator followed the instructions (mostly). Given the history, one could no doubt argue that the height restrictions in the manual were comparable to the absent radios in TJ Hooper.
But carnival operators are, as a group, generally very low-assets (many rides are leased or heavily leveraged) and most states' insurance requirements are relatively low (I believe Texas requires $1 million, which isn't pocket change, but still).
And, as I noted, this isn't the first time something like this has happened. It's not an annual occurrence, I don't think, but without mandatory reporting, it's hard to be sure.
So there are dozens or hundreds of Sizzlers in operation (it is, I have read, the most popular carnival ride in existence), with the same restraint system. But due solely to its age, its manufacturer is immune from suit, and the operators will generally be effectively immune from suit. Where's the appropriate deterrence and motivation to (for instance) urge ride owners to update the restraints?
Again, perhaps that's a fine outcome in the end -- there are lots of good reasons to at least consider giving manufacturers some date certain after which no claims will be brought. But if you're looking for a good basis for pushing students to consider the issue more carefully, it might be worth thinking about.
January 8, 2007
Updated: Zyprexa Documents Update
James Gottstein, the Alaska lawyer at the center of the Zyprexa documents issue (short version: he subpoenaed the documents from a friendly expert David Egilman, possibly without proper attention to the protective order, Judge Weinstein is Not Happy) has been updating his site with relevant documents:
- Rep. Waxman has returned the documents provided to him by Gottstein.
- Judge Weinstein issued a jointly-requested injunction. One of the people enjoined is part of a group that happens to be local to me (and who does a radio show on the same station I do) and has its own news page.
- Added (just didn't see it the first time): A letter from one document recipient to Judge Weinstein, arguing both that the documents are too widely-distributed to get back and that Eli Lilly has acted criminally.
- Lilly requested a chance to depose Gottstein in New York to form the basis of a sanctions motion.
- Judge Weinstein held a hearing on the issue.
- The Electronic Freedom Foundation submitted a brief seeking reconsideration of Judge Weinstein's injunction (which has been extended to allow some additional briefing, etc.), arguing that the injunction was overbroad in reaching people outside the scope of the protective order.
- New 1/8 7:45: Lilly has filed its brief opposing reconsideration of the injunction (as urged by this letter, also linked to above). (Also note the exhibits (big file).)
(My earlier post is here.)
Journal of Tort Law Launches
...see it here. The announcement:
The Berkeley Electronic Press, together with editors Jules Coleman (Yale), Mark Geistfeld (NYU), John Goldberg (Vanderbilt), Ronen Perry (University of Haifa), Catherine Sharkey (Columbia), John Witt (Columbia) and Benjamin Zipursky (Fordham), is pleased to announce the launch of an exciting new peer-reviewed journal, the Journal of Tort Law (JTL).
The first and only peer-reviewed academic journal in the U.S. devoted to tort law, the Journal of Tort Law publishes cutting-edge scholarship in tort theory and jurisprudence from a range of interdisciplinary perspectives: comparative, doctrinal, economic, empirical, historical, philosophical, and policy-oriented. Spearheaded by editor-in-chief Jules Coleman (Yale) and some of the world's most prominent tort scholars from the Columbia, Fordham, NYU, Vanderbilt, and University of Haifa law faculties, the journal is the premier source for original articles about tort law and jurisprudence.
Praise Be, Joe Jamail Has Returned!
A substantial number of visitors to this blog every day are looking for the Joe Jamail video clip that was unfortunately removed from YouTube (originally posted here). I am pleased to report that it has returned (noticed at Sui Generis):
Protective Orders and the Internet
After I posted the earlier Zyprexa update (and after some grading and lunch, thank you), I thought I'd see how long it would take a geeky but uninvolved law professor to find the documents.
Started looking around at 1:00. Found them and started the download at 1:19. Got to learn more about Tor, too. 19 minutes. Update: Once I thought of the better approach (which on better days I would have tried first), it was less than 30 seconds.
(I canceled the download and do not have the documents, nor will I direct anyone as to where the documents might be. I am reasonably confident that what I found is in fact what it purports to be, but it might also be 270 MB of yak herders yodeling.)
As I now observe PoL suggested, that bell has rung.
Risks and Benefits
The Baltimore Sun today has a good article addressing the risks and benefits of heartburn medications, but it's really a broader piece than that, discussing the balancing of drugs' risks and benefits more generally.
[Patient] Kilner has already made up her mind. "I'm going to continue taking my Nexium because it works for me," said the 72- year-old Timonium resident. "The quality of life has improved for me by taking it."
[Doctor, not Judge] Posner said the benefits of these drugs, known as proton pump inhibitors, or PPIs, outweigh the risks. While the study results announced Dec. 27 suggested that older people who take the drugs might want to take extra precautions to prevent bone loss, the link between hip fractures and the drugs is inconclusive, he said.
"There is no drug which is free of side effects," he said. "The over-the-counter drugs work fairly well but not nearly as well as this class."
Class Actions & Administrative Law: Two Great Tastes that Taste Great Together?
This Article considers how courts should interpret federal statutes when the interpretive question affects the scope or availability of class certification. When faced with such a question, many courts are tempted to interpret the statute in a way that enables class certification, enhancing the chance that the parties will settle.
I argue that the debate over this practice can be conceptualized as a debate about delegation. Those who argue that courts act illegitimately when they “adapt” statutes to “fit” the class device assume Congress has delegated courts a narrow range of discretion to promote certification and settlement under federal statutes. By contrast, those who argue courts have great leeway to certify statutory claims, even at the price of “distorting” the statute, assume courts have been delegated a great degree of such discretion.
The Chevron doctrine of administrative law provides an unexpected solution to this debate, if we treat Chevron as a “starting-point” measure of Congress's intent to delegate authority to “adapt” federal statutes to new circumstances. This proposal is roughly similar to Nicholas Quinn Rosenkranz's suggestion that Chevron might be treated as a “constitutional starting-point rule” for defining permissible delegations of “dynamic interpretive power.”
My argument, however, is pragmatic rather than constitutional: in the absence of clear information about Congress's desires in the class context, and in light of the complex trade-offs implicated by class actions, an off-the-rack approximation of Congress's intent to delegate dynamic interpretive power to courts in the class context is needed. I suggest that Chevron is the best available “starting point” measure, in this pragmatic sense. In other words, pending further instruction from Congress, we might ask courts in the class context to start by “thinking about statutory interpretation and statutory discretion as they would want an agency to think.”
In the process, I show that the obvious objection to using Chevron in this fashion—that federal courts, unlike agencies, are not democratically accountable—doesn't withstand close scrutiny. Put bluntly, courts interpreting statutes that affect the scope of their power to certify claims exempt themselves from the restraint they demand of agencies. Asking courts to consciously parallel the restraint they expect of agencies therefore reins in courts' interpretive discretion—promoting, in the process, more democratic control over class action lawmaking.