June 9, 2007
$2.62M Accutane Verdict
The New Jersey Law Journal (via law.com) reports that a New Jersey jury awarded $2.5M in damages, and $119,000 for past medicals against Hoffman La-Roche and its Swiss parent company. The jury found that the warning label on the acne drug Accutane failed to warn of the risk of inflammatory bowel disease. The jury did not award any punitive damages.
June 8, 2007
Robert Bork Sues Yale Club For Negligence
The Wall Street Journal Law Blog reports that Robert Bork, the former nominee to the Supreme Court and current professor at Ave Maria, has filed a negligence suit against the Yale Club based on a slip-and-fall at an event in June 2006. WSJ Law Blog has a copy of the complaint. Bork seeks $1 million in compensatory damages and an unspecified award of punitive damages.
Chamber's Lawsuit Ranking 2007
The Institute for Legal Reform (an affiliate of the National Chamber of Commerce) has released its 2007 State Liability Ranking Study. The study is based on a national survey of in-house counsel and senior corporate litigators. Granted the study represents only an industry viewpoint, but it's interesting.
June 7, 2007
Solum Recommends - Silver, Zeiler, Black, et al., on Malpractice Payouts & Insurance
Larry Solum recommends the following article posted June 2d on SSRN: "Malpractice Payouts and Malpractice Insurance: Evidence from Texas Closed Claims, 1990-2003," by Charles Silver (Texas Austin), Kathryn Zeiler (Georgetown/NYU), Bernard S. Black (Texas Austin), David A. Hyman (Illinois) and William M. Sage (Texas Austin). Solum describes the article as "[a]nother important empirical paper from this Texas dataset."
The abstract states:
Background: This study is the first to quantify physicians' malpractice insurance limits. It also examines the connection between policy size and payments on claims, including the frequency of settlement at the policy limits and the frequency of out-of-pocket payments.
Methods. Statistical analyses using data collected by the Texas Department of Insurance (TDI) covering all insured medical malpractice claims against physicians closed between 1990 and 2003 with payment of $25,000 or more (measured in 1988 dollars).
Results. Contrary to conventional wisdom, per-occurrence limits of $500,000 or less were as common as $1 million limits. Nominal policy size was stable over time, but real policy size declined. Settlements at limits were common, and above-limits payments were rare, suggesting policy limits cap recoveries. Physicians infrequently made out-of-pocket payments regardless of policy size, but the frequency declined as policy size increased. Results are presented separately for “perinatal physicians.”
Conclusions. The reported findings are contrary to common claims in policy debates and in the health policy literature. Policy limits appear to act as de facto caps on recoveries. Further research is needed to determine how the relationship between policy limits and recoveries affects malpractice claim outcomes and physician insuring practices.
Really interesting stuff. Check it out.
Congress Holds Hearing on FDA
In fall out from the Avandia story, the House Committee on Oversight and Government Reform held a hearing yesterday on the FDA's role in evaluating drug safety. The NY Times has a full report. In a prepared statement, the FDA Commissioner stated that more prominent warnings of heart risk would be required on Avandia.
June 6, 2007
Sebok On Tort Suit Based On Alleged U.S. Torture
Anthony Sebok has an interesting Writ column analyzing a lawsuit filed last week by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary that allegedly helped the CIA move suspected terrorists from Country A that does not permit torture to Country B that permits torture. (CBS has a report on the suit; a copy of the complaint is available on the ACLU's website).
The ACLU has sued under the Alien Tort Statute (ATS). Sebok discusses why the suit under the ATS "might work," while a suit under the Federal Tort Claims Act would fail. But, Sebok ultimately concludes the the federal court should dismiss the case under the political question doctrine.
June 5, 2007
Ethics Violations In Pet Food MDL
The New Jersey Law Journal (via Law.com) reports about an alleged ethics violation in the pet foods contamination cases. U.S. District Judge Noel Hillman was incensed that Menu Foods' insurance adjuster had direct discussions with plaintiffs even though they were represented by counsel - a violation of Model Rule 4.2. On May 24th, the judge ordered Menu Foods to stop the contacts, and further to identify the lawyers involved:
"I want to know the names and bar admissions of all the lawyers who advised Menu Foods on its communications with the putative class," he said at a hearing in Camden, N.J. "I want to know the content of the telephone messages. I want to know what scripts are given to the people who are calling people live on the phone and what they're being told to say, and in particular anything that they're being told to say in response to any questions by the parties they're contacting."
On the company website, Menu Foods now states:
On May 24, 2007, a United States federal court issued an order that, for the time being, prevents Menu Foods from having direct contact with individual pet owners. In light of the order, we regret that we cannot communicate with potential claimants at this time. As soon as the court permits, we intend to resume efforts to resolve claims directly with pet owners. We will post additional information when we are able.
As reported in the New Jersey Law Journal, over 120 federal lawsuits have been filed against Menu Foods and consolidated in an MDL, though no venue has been selected.
Tort Theory and Reparations
Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This chapter uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too.
Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for “microfinance” (as distinguished from “microcredit”) as the preferred mode for transitional governments designing new national reparations programs. The chapter works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women.
(Thanks to Feminist Law Prof for the tip).
Horse Cents - Fen-Phen Plaintiffs Battle Over Horse
In an amusing twist to the diet-drug litigation, plaintiffs in Kentucky claim ownership in a winning race horse (via WSJ Law blog). Seriously. In a suit filed in 2004, 400 Fen-Phen plaintiffs allege that their own lawyers defrauded them by failing to disclose information about the settlement and by failing to properly distribute client funds. Representing the plaintiffs in their fraud suit is Angela Ford; she has a great website with the court pleadings available for download.
Oh, the horse? Yes, well, two of the former Fen-Phen lawyers own a 20% stake in a horse named Curlin - the winner of the Preakness and its $1million purse. And, plaintiffs now seek ownership of the horse. The NY Times quotes one of the plaintiffs:
“We own part of that horse — there’s about 400 of us,” Mr. Carter said. “We may not have our names on the papers, but it’s our horse. He was bought with our blood money.”
And Angela Ford intends to seek full ownership of the horse - not just the 20% currently retained by the lawyers. From the Times article:
“If the court determines that Curlin was originally purchased with money that belonged to my clients, then the entire horse belongs to my clients and clear title could not have been conveyed,” Ms. Ford said.
What's next? Well, for Curlin, the Belmont Stakes are this Saturday, June 9th.
June 4, 2007
"Anatomy of a Mass Tort"
California's UCL - "Inference of Common Reliance" Standard
The California Court of Appeals (Third District) recently held that plaintiffs could base a class action under California's Unfair Competition Law on an "inference of common reliance" (as opposed to actual reliance): McAdams v. Monier.
Plaintiffs alleged that the defendant - a manufacturer of roof tiles - failed to disclose that the color of the tiles would fade away leaving bare concrete. The UCL count required plaintiffs to have "suffered injury in fact...and have lost money ...as a result of" defendant's failure to disclose. (California's UCL was amended by Proposition 64 in 2004; prior to these amendments, no reliance was required under the UCL).
The trial court denied plaintiff's motion to certify the class, finding the amended UCL required a showing of actual reliance, which defeated commonality. The Court of Appeals, however, reversed imposing "an inference of common reliance" standard.
June 3, 2007
Another 9/11 Respiratory Illness Suit Filed
AM New York reports that a policeman who worked more than 100 hours of rescue and recovery work at Ground Zero has filed a lawsuit against the NYPD. The suit alleges that the policeman's sarcoidosis was caused by inhalation of 9/11 dust, and that the NYPD has refused to classify the condition as line-of-duty injuries. The story notes that firefighters, by contrast, are being granted line-of-duty injury status for sarcoidosis. Moreover, just over a week ago, the New York Times reported that the New York medical examiner officially has listed dust from the Twin Towers as a "contributory cause" of the sarcoidosis of a civil rights lawyer fleeing the scene.