July 14, 2007
LDS Church Ordered to Reveal Financial Information
Kenneth I. Johnson Jr. alleges in an Oregon lawsuit that he was repeatedly sexually molested by a Mormon "home teacher" in the late 1980s, and is seeking $45 million in punitive damages. In connection with that request, he's sought discovery of the church's financial status, which has been kept secret since 1959. The Oregon Supreme Court rejected emergency relief (I assume a mandamus position or the like) on Monday, refusing to block the discovery.
The church settled the last case that came close to revealing that information, though the causal connection is not clear (i.e., it's not clear that the settlement was a way to avoid its release or simply a settlement).
911 Calls from Kentucky Kingdom Incident Released
The calls to 911 from witnesses to the amputation on the ride at Six Flags Kentucky Kingdom have been released, and they suggest that the cable in question broke while the carriage went up, the cable wrapped around the patron's legs, and then the ride was released.
Challenging Pretty Silly Poll Questions With Your Own Pretty Silly Poll Questions
The AAJ/ATLA doesn't like the polling that the Chamber of Commerce does on litigation issues, so it's done its own (press release/results here [PDF]). But -- quelle surprise -- those questions might not be the most neutral ones ever, either.
On balance, the AAJ one seems slightly better than the Chamber's (which I criticized here). But both polls, as I mentioned in that previous post, seem less convincing than the responses to open-ended questions, where litigation issues rarely (if ever) make it into people's top ten concerns.
July 13, 2007
PDUFA Getting Closer
The House yesterday passed the Prescription Drug User Fee Act, which is close enough to the Senate version that it looks likely to become law. The PDUFA (among other things) maintains the industry funding of the FDA through fees and increases post-marketing surveillance resources and authority. The reactions fall out along predictable lines:
"Neither of the bills are acceptable," said Dr. Sidney M. Wolfe, director of the Health Research Group at Public Citizen, a consumer advocacy organization based in Washington, D.C.
"We have advocated for a long time repealing PDUFA. The damage that's been done by having direct industry funding of the FDA is unacceptable," Wolfe said. "When people in the FDA start describing the industry as their client -- because the majority of salaries in drug review are being paid by the industry -- there is obviously something wrong with it," he said.
But a drug industry representative defended the current system and applauded the new bills.
"Since its original enactment in 1992, PDUFA has been a resounding success for the FDA, pharmaceutical companies, taxpayers and, most importantly, patients," Billy Tauzin, president and CEO of the Pharmaceutical Research and Manufacturers of America (PhRMA) said in a statement released Wednesday. "The resources and additional staffing made possible by the fees charged by the FDA have enabled the agency to review new medicines more efficiently, while maintaining its stringent safety and efficacy standard."
I understand the criticism from Wolfe to some extent (especially as an instance of the broader argument about regulatory capture), but it has always struck me as a little odd to worry all that much about the funding sources -- it's not like the pharmaceutical companies are going to stop applying for approvals in the U.S. just because they're annoyed by the FDA. So, yes, the salaries of the officials do come from those fees, but it's not like they're getting bonuses or pay cuts based on what the companies say. That money's going to keep coming in regardless of what the regulators do.
It does strike me as a bit silly to refer to the regulated entities as "clients," and I assume that the FDA is at at least as much risk of capture as other agencies -- I'm just not certain that the funding source is a huge problem.
(I do some work for pharmaceutical companies.)
More on the Kentucky Suit
A more complete story is here in the Courier-Journal.
Canadians Sue TB Traveler
As CTV reports, a Montreal lawyer has filed suit in Quebec Superior Court on behalf of seven Canadians and two Czechs against Andrew Speaker, the TB traveler. Eight of the plaintiffs were passengers on the flight from Prague to Montreal with Speaker, and the ninth plaintiff is a brother and roommate of one of the passengers.
July 12, 2007
Lawsuit Filed Against Kentucky Kingdom
In what is not remotely a surprise, the family of Katie Lasitter, the teen whose feet were severed on a ride at Six Flags Kentucky Kingdom, filed suit today.
Small Businesses Maybe Not So Concerned About Liability
Business Week has a piece about small businesses and their feelings about litigation risk, framed by the pants lawsuit. It notes the disjunction between tort reform advocates' arguments that tort liability risks are substantial for small businesses and the apparent views of those same businesses:
Still, research by legal reform advocates suggests that most small-business owners don't lose sleep over frivolous lawsuits. A survey released in May by the Institute for Legal Reform found that more than half of small-business owners said they were "not too concerned" or "not at all concerned" about getting sued, and in 2006 members of the National Association of Manufacturers ranked fear of litigation last on a list of 10 factors hurting their businesses.
"It is not as big an issue with our membership" as it is for large corporations, says Robert Staub, founder of the National Small Business Chamber of Commerce, a three-year-old organization based in Tennessee that represents more than 400 businesses, with an average of 12 employees each.
The piece also notes that small businesses may be more likely to be on the plaintiffs' side, further complicating their views about liability modifications.
July 11, 2007
Updates on Judge's Libel Claim & Big Dig
A couple of regional updates perhaps of interest generally:
- Judge Ernest Murphy, who won $2 million in a libel claim against the Boston Herald (recently upheld by the SJC), has had ethics charges filed against him for allegedly trying to bully the Herald into paying more than $2 million. The letter making the demand for roughly $500,000 more than was awarded was made public two years ago in the Herald's filings seeking the award's reversal. The letters are available on the Herald's website.
- The NTSB has released its report (press release, synopsis, presentations, video of presentation (Real), Globe coverage). There's blame to spare; the major focus seems to be on the failure to properly anticipate and test the long-term efficacy of the epoxy in question, though there were certainly many other issues. The report has some criticism of the warnings given with the epoxy as well.
Surgeon General Criticizes Administration
Our neighbor blog about mass tort litigation has a good excerpt from the NYT piece about former Surgeon General Richard Carmona's testimony that public health concerns were repeatedly undercut by Bush administration political concerns.
July 10, 2007
Egilman, Gottstein Settling with Lilly Regarding Zyprexa Document Leak?
That's suggested by a pleading filed back in May: Download 20070529_extension.pdf
It appears that Egilman was at that time very close to a settlement, while Gottstein was awaiting the resolution of those talks.
(In case you're just joining the story, David Egilman was an expert for plaintiffs in the Zyprexa litigation. In cooperation with Alex Berenson of the NYT, he was subpoenaed by James Gottstein, an Alaska lawyer advocating against forced psychiatric medications. The documents were widely distributed; Judge Weinstein concluded that their distribution violated his protective order and enjoined some parties from further distribution and made noises about contempt. Go here for many more posts. My article about it continues to muddle along.)
Dorf on Liptak on Contingent Fee Lawyers Working for AGs
Iverson Escapes Punitive Damages
After the second phase of a bifurcated trial, a Washington, D.C., jury decided to award no punitive damages against Allen Iverson and his bodyguard, leaving the total damage award at $260,000. Earlier post here.
Taxation of Non-Economic Harm
Autism, Chelation Therapy, Tort Law
Respectful Insolence has an interesting post about a tort suit being filed by the parents of an autistic child who died after receiving "chelation therapy" for autism. As I understand it, chelation therapy is aimed at the supposed (and unproved) connection between autism and thimerosol, a preservative used in vaccines until 2002. Orac has clearly mixed feelings about the wrongful death suit, noting that the child's parents sought out the therapy -- but then again, they were not (so far as we know) qualified to evaluate the (non-)science behind the therapy, while the defendant physician presumably was.
FDA Requirements Do Not Preempt Failure-to-Warn Claims
As reported in the International Herald Tribune, a U.S. district court judge held last week that FDA approval of drug labels does not preempt state-law claims for failure-to-warn. As noted in a prior post, the U.S. Supreme Court recently granted cert. in a similar case involving medical devices.
Sebok On DC Pants Suit
Anthony Sebok in his Writ column weighs in on the DC "pants suit." Sebok believes that Judge Bartnoff "probably will not" grant sanctions under Rule 11 as it will be difficult for the judge to conclude that the complaint was "factually groundless." Ultimately, Sebok finds that the fault in the "pants suit" case lies in the fact that the plaintiff himself was a lawyer, thereby changing the incentives to litigate. Sebok's solution? He suggests a "'Loser pays' rule in cases lawyers represent themselves.
July 9, 2007
Iverson, Bodyguard Liable for Damages
The Post has the details about the suit against basketball star Allen Iverson The lawsuit arose out of a bar scuffle between Iverson's bodyguards and two patrons. The suit apparently sought $20 million; the compensatory award was $260,000. Arguments about punitive damages took place this afternoon and the jury is deliberating now.
Liptak on Contingent Fee State Lawyering
Adam Liptak, in a Sidebar column, writes about the practice of state AGs hiring contingent fee lawyers, and about President Bush's executive order barring such activities at the federal level.
NY Post on Rye Playland
It is the NY Post, so obviously I hesitate to over-rely on it, but for a new story the paper hired an inspector to walk through the park a week or so after the most recent fatality (posts here and here), with pretty compelling results:
A Fourth of July spot-check of the embattled county-owned park found several instances of Playland employees blatantly ignoring policies - including skipping basic safety checks, failing to monitor rides and riders and socializing with other workers.