July 21, 2007
You Should Be Reading This
Have I mentioned before the Personal Injury Law Round-Up at the not-super-wittily-named-but-still-very-helpful New York Personal Injury Law Blog? It's weekly, it's concise but still funny, and it consistently links to something I haven't noticed before (in addition to fairly often linking here - thanks, Eric!).
Read it, learn it, love it, live it. Or at least check it out.
Off to a Red Sox game.
July 20, 2007
O'Quinn Arbitration Ruling
In particular, it's got a fascinating discussion of O'Quinn's use of client funds to pay for what is referred to as "the Baylor study," though it's not actually associated with Baylor. As the (partial) dissent puts it:
O'Quinn fashioned the funding of a Baylor Medical Study in somewhat less than a straightforward manner. [Several industry studies suggested no causation.] O'Quinn set out to fund a study to counteract these medical study findings. . . .
The name "CAPS" is found in the article as the entity funding the Baylor study. CAPS is an acronym for a group in support of the "women" in their battles with the manufacturers. [Ed. note: not sure why the scare quotes are there around "women."] O'Quinn used client money to fund the Baylor study through donations to CAPS. The method of funding is as follows:
O'Quinn would cut a check from the General Expense Fund to a designated breast implant client. The client would then send a check out of the client's account to CAPS. CAPS would in turn send the money to the Baylor study group. Medical studies ethics require that a statement of disclosure be made in every medical article or study as to who the individuals and/or entities are that are funding the study. This study at Baylor, funded in this deceptive way, nowhere states the study was being funded by plaintiffs' lawyers or O'Quinn. This was a deceptive practice involving clients' money. The clients were personally involved in the misrepresentation of the true funding of the Baylor study.
O'Quinn's business accountant testified that the method of funding was a "subterfuge."
Yet another consequence of Daubert and, I suppose, the more general desire to avoid bias challenges, and perhaps another reason to permit (and pursue) some discovery into the publication of relevant scholarship.
FEMA Attorneys Delayed Testing Trailers
Concerned about potential liability, FEMA counsel delayed testing of trailers for formaldehyde, used by victims of Hurricane Katrina and the subsequent flooding, according to documents released by a House committee.
"Do not initiate any testing until we give the OK," one FEMA attorney wrote on June 15, 2006, three months after the first news reports appeared about possible formaldehyde-related problems. "Once you get results and should they indicate some problem, the clock is running on our duty to respond to them."
Many of the documents are available here.
Conflicts of Interest
The Scientific American blog has a post about David Schwartz, director of the National Institute of Environmental Health Science, who testifies as a paid expert in asbestos cases, refuses to sell his stock in biotech companies, and more. It's quite the series of adventures.
The Washington Post covered the story a couple of weeks ago as well.
More on Plame v. Libby
Thomas Healy at Dorf on Law has a look at the Plame v. Libby dismissal.
July 19, 2007
Updated with Link to Opinion: Breaking: Plame Suit Dismissed
The opinion is here [PDF].
Deal Giving Big Dig Managers Immunity Possible
The AP reports that Governor Deval Patrick showed openness to a deal that would provide for a payment in the neighborhood of $1 billion from Bechtel/Parsons Brinckerhoff, the manager of the Big Dig tunnel project in Boston. In exchange, the state would not pursue criminal charges and the managers would be released from civil liability from state and federal governments, but not, one assumes, from the family of Milena Del Valle, who died when one of the panels in the tunnel fell on her car.
Daniel Pearl's Widow Sues Terrorists, Pakistan's Bank
Marianne Pearl, whose husband Daniel Pearl was a Wall Street Journal reporter who was tortured and murdered in 2002, filed suit yesterday against 23 defendants, including a number of reputed terrorists and the Habib Bank Limited of Karachi, Pakistan's largest bank.
TB & Respiratory Masks
An interesting two-day story, chronicled by The Pump Handle, about OSHA enforcement of guidelines for respiratory masks for first responders and health care workers:
- Day 1: "[T]he House of Representatives will very soon (perhaps later today) be voting on an amendment to the Labor-HHS-Education Appropriations Bill that would prohibit OSHA from fully enforcing its respiratory protection standard to protect health care workers and first responders from tuberculosis. It would exempt tuberculosis exposures from the requirement for an annual fit test to make sure the respirator fits and protects the worker from exposure."
- Day 2: "We’ve just learned that Rep. Wicker has backed down. In the face of well-organized opposition (unions and the public health community) armed with a very strong argument that the policy he was proposing was dangerous, Rep. Wicker has dropped his amendment."
July 18, 2007
Hearings on Chinese Products issues
The Consumerist blog is live blogging the Senate hearings on safety issues with products from China. It's entertaining and occasionally informative.
9/11 Respiratory Plaintiffs Sue WTC Captive Insurance Company
CBS News/AP reports that sick 9/11 workers (firemen, police officers, rescue workers, etc.) have sued the World Trade Center Captive Insurance Company.
The story reports:
Mayor Michael Bloomberg, who was named in the suit along with LaSala and board members, said Tuesday that attorneys are wrong about the company's structure.
"They just don't know the facts. The truth of the matter is, Congress didn't set up a victims' compensation fund," the mayor said. "We'd like them to do that, we've asked for that, they set up a captive insurance company. And the insurance company can only pay out monies if somebody sues us in court and wins a judgment against us."
Congress directed the Federal Emergency Management Agency to set up the fund, appropriating up to $1 billion "to establish a captive insurance company or other appropriate insurance mechanism for claims arising from debris removal, which may include claims made by city employees," according to the 2003 resolution.
The lawsuit, relying on testimony from federal officials over the years about the fund's purpose, said officials meant for the money to be used to compensate ailing workers. Federal and state governments never said "that a captive insurance company be established solely to defend the city of New York and its contractors from all rescue, recovery and debris removal related claims, at all costs," the lawsuit said.
As noted in a prior post, the workers have filed a class action against the City seeking compensation for respiratory illnesses allegedly caused by exposure to 9/11 dust.
Voluntary Limit of Junk Food Ads to Kids
The New York Times reports that 11 big food companies, including McDonald's, Coca Cola and General Mills, have agreed to stop advertising certain products to children under 12. The pledge is limited to TV ads, though some companies have volunteered to expand the limits to print, radio and Internet advertising as well. The pledge applies only to products that do not meet "certain nutritional standards." And, the pledge applies only to TV shows that "cater to children," not those that cater to "families."
July 17, 2007
California Invalidates Recreational Use Waivers When Gross Negligence Is Alleged
The story quotes a number of people suggesting that the inability to waive gross negligence will be the death knell for various activities. Massachusetts, however, is one of the (majority) states that does not permit the waiver of liability for gross negligence, and I've seen no shortage of recreational activities of the sort in question. Many of my daughter's friends go to a camp run by the local Y with canoeing, lake swimming, archery, and so on; she'll be attending a camp at a local nature sanctuary with lengthy hikes, some boating, and so on. We've got seemingly successful ski areas and all manner of other recreational activities.
Certainly this decision has the potential to increase costs, and I don't want to suggest that has no importance. But the concerns sound a bit sky-is-falling-esque to me. In that regard, it's not unlike the response to a decision by the same Court about the common carrier status of roller coasters; I wrote about that here.
Glaxo Threatens Lawyers Over Avandia Ads
Glaxo Smith Kline is threatening some lawyers who are advertising for Avandia clients with cease-and-desist letters. I've previously written about Avandia spam (here, here, and here), and about the potential risks of lawyer advertising for clients relating to drugs that are still on the market (here). And Sheila's post yesterday about the increase in spontaneous adverse event reports no doubt reflects some of the publicity confounder, where adverse event reporting increases disproportionately to the actual incidence due to publicity for a medicine.
Worry not, though, there are still plenty of lawyers who would like to talk to you if you Google "Avandia."
Judge Denies Motion to Reconsider in Pants Case
Senate Committee Taking Up Tobacco Bill
The U.S. Senate Committee on Health, Education, Labor and Pensions is taking up S. 625 on Wednesday. This bill gives the FDA the authority to regulate tobacco. (A companion House Bill - H.R. 1108 - has been with the House Committee on Energy and Commerce since February).
July 16, 2007
Another Med Mal Trial Being Live-Blogged
This time, it's not by a participant, but by a business litigator on a sports blog, covering the retrial of Notre Dame head coach Charlie Weis. Weis suffered complications from his gastric bypass surgery. The first trial ended in a mistrial when the defendants helped a juror who collapsed during testimony.
Reports of Avandia Side Effects Triple
From ABC News (via AP), reports of Avandia side effects (including heart attacks, deaths and hospitalizations) tripled in the month following the New England Journal of Medicine's report on the drug's safety. For example, only 5 heart attacks were reported in the 35 days prior to the study's announcement, while 90 heart attacks were reported in the same period following the study.
The story notes:
The sudden spike is a sign that doctors probably were unaware of the drug's possible role in their patients' heart problems and therefore may not have reported many such cases in the past, several experts said.
It also shows the flaws of the safety tracking system and suggests that a better one might have detected a potential problem before the drug had been on the market for eight years.
More on Chinese Imports
In a news release, the FDA confirmed that salmonella found in the "Veggie Booty" snack caused an outbreak of illness back in June. The Boston Globe reports that the snack seasoning was contaminated with the salmonella, and wait for it - ingredients in the seasoning were imported from China.
July 15, 2007
Expanding Information About Experts
Interesting new piece (out now in the Nebraska Law Review) available on SSRN. In it, Stephen Easton (Missouri-Columbia) argues for broader information to be shared with juries about experts -- how the sausage is made, so to speak. The more formal abstract:
Now that more than a decade has passed since the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), it has become clear that the decision, though certainly important, was not quite the panacea for faulty expert testimony that many of us first thought it would be. As the first part of this article notes, even after Daubert, which directed trial courts to take seriously a party's motion to exclude faulty expert testimony, there are still many instances where experts testify to incorrect opinions. This article observes that, in each case where opposing experts testify to directly opposite opinions about an issue of historical fact, one of the experts must be wrong. It argues that, in any case of opposing expert testimony, we expect the jury to determine which of the experts is wrong, so we should give the jury as much information as reasonably possible to help it determine which expert is wrong and which is right. This article recommends that courts end their tendency to give expert witnesses preferred treatment, as vis-a-vis fact witnesses, under civil procedure (discovery), professional responsibility, and evidence law. Given the substantial potential for retaining attorneys to influence the testimony of their expert witnesses, courts should provide the jurors who must evaluate the resultant testimony with at least as much information about the formation of expert testimony as they do about the formation of fact witness testimony. To give the jurors the information they need to sift the wheat from the chaff in expert testimony, courts in civil cases should: (a) permit attorneys to contact opposing retained expert witnesses ex parte; (b) require disclosure and discovery regarding all communications between attorneys and the expert witnesses they retain; (c) provide for automatic disclosure of all drafts of expert witness reports that have exchanged hands between experts and the attorneys who retained them; (d) allow a party to introduce the testimony of any person designated as an expert by any party; and (e) admit bias testimony about the original retention of the expert by a party other than the one calling the expert at trial, when that is the case. By adopting each of these recommendations, courts would treat experts as they do fact witnesses and thereby give jurors the same sorts of information about the formation of expert testimony, including the influence of attorneys on that testimony, that they receive about the formation of fact witness testimony.