Friday, October 26, 2007
In a case involving "famously obnoxious" lawyer Geoffrey Fieger, the Ohio Supreme Court has reversed by a vote of 5-1 a $30 million verdict for a baby stricken with cerebral palsy. Fortune's LegalPad (linked to above) has a detailed description of the case, including a fair amount about Fieger's conduct during the trial.
It's not exactly shocking news that testing incoming hospital patients for the "superbug" version of staph could be highly effective, but the article is interesting nonetheless to hear one explanation as to why that's not become the standard of care.
Yet few U.S. hospitals do it, and many fight efforts to require it. Jeanine Thomas, who nearly died from the drug-resistant staph bug, says the reason is simple: "Doctors don't want to be told what to do."
The Chicago suburbanite's personal crusade led Illinois this year to become the first state to order testing of all high-risk hospital patients and isolation of those who carry the staph germ called MRSA.
Powerful doctor groups fought against it. The testing and isolation of patients would be too costly, they said. Many other germs plague hospitals that also require attention. Experts said a more proven approach would focus on better hand washing by hospital staff — a simple measure tough to enforce.
Thursday, October 25, 2007
There is, as you might imagine, a little bit of excitement around these parts relating to the World Series. And so today I direct you to a detailed bibliography [PDF] created by Amy Beckham Osborne of the University of Kentucky law library.
Also: Go Sox.
Wednesday, October 24, 2007
Eric Turkewitz notes (after a spot-on criticism of the site) a post suggesting that SueEasy may be a hoax, presumably to emphasize a perceived sue-happiness. I don't think it is for a couple of reasons:
- First, it would be a stupid one. Once exposed, it would be pretty easy to say, "Um, so you couldn't find enough actual evidence of overlitigation so you had to make it up yourself?" Not a good idea.
- More to the point, the evidence points away from it being a hoax. The whois entry shows that it's connected to Webtronaut which, while a little silly-looking and filled with Web 2.0 gobbldegook, appears to be legitimate. Searching for the name of the listed contact reveals various real-looking references -- the sort of thing that it would be uncommon for a hoax perpetrator to both with.
Put briefly, while I might wish it was a hoax, I don't think it is. It is undoubtedly a terrible idea, but it seems to be a real terrible idea.
The Washington Post reports that Roy Pearson, the plaintiff in the dry cleaning pants lawsuit, will not be reappointed to his position as a DC administrative law judge. (Prior posts here, here, here and here). No formal letter has been issued, however, so any decision is not yet final.
In his latest FindLaw column, Tony Sebok addresses the two recent opinions by the Second Circuit on the Alien Tort Claims Act: Khulumani v. Barclay National Bank and Ntsebeza v. Daimler Chrysler Corp. Although the Second Circuit reversed a dismissal by the district court, Sebok argues that the substantive ruling on ATCA aiding and abetting liability may prove to be a "pyrrhic victory" for the plaintiffs:
The test based in international human rights law is set out in the Rome Statute of the International Criminal Court: One is guilty of aiding and abetting a crime if one renders aid to someone who commits a crime, and does so "[f]or the purpose of facilitating the commission of such a crime."
Judge Korman and Judge Katzmann agree that the Rome Statute should apply. Since they constitute a majority of the panel, that is the standard Judge Sprizzo must apply on remand.
In contrast, the common law test is less demanding (and thus, more pro-plaintiff). On the Second Circuit panel, Judge Hall was the only judge who endorsed this test. He quoted the Restatement (Second) of Torts §876(b), which provides that one is liable for aiding and abetting the tortious conduct of another "if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other."
In his next column, Sebok will analyze which test for aiding and abetting should apply to the ATCA.
Tuesday, October 23, 2007
Jim Gottstein -- the Alaska lawyer who subpoenaed Zyprexa documents from David Egilman -- appeared on the law radio show I do on a local community station today. I do not yet have the archive uploaded, but we mostly discussed his organization and its work to prevent forced medication. We did briefly discuss the issued relating to the document leaks, and he stated that he continues to be in discussions relating to settlement and that he is optimistic that a settlement will be reached.
The current issue of The Nation has a story about the regulatory status of phthalates in toys in the United States, noting that, based on "a mounting body of scientific evidence suggests that phthalates impede the production of testosterone and disrupt the sexual development of infant boys," they have been banned in European toys. It presents a growing but incomplete set of indicators that there may be a danger of the material (which helps provide flexibility), and shows an instance of the question of when it makes sense for a regulatory body to act -- when there's a pretty strong hint, or instead when the data are definitive.
Republicans in the Pennsylvania House have announced a massive tort reform package. According to the press release, the proposed legislation includes the following reforms:
- Proposing a constitutional amendment to allow the General Assembly to establish caps on attorney fees in liability cases.
- Establishing a progressive statutory framework for limitations on attorney fees in liability cases.
- Proposing a constitutional amendment to allow the General Assembly to establish caps on non-economic damages in liability cases.
- Setting limitations on the recovery of punitive damages.
- Restricting liability with respect to innocent sellers, and where product misuse has occurred.
- Amending the comparative negligence statute to establish that each defendant found negligent or strictly liable for an injury to a plaintiff will be responsible for only his or her share of the total damages awarded to compensate a plaintiff for any injuries sustained.
- Requiring a plaintiff filing a liability action to include with the complaint a certificate of merit as prescribed by court rules, including a statement that the plaintiff suffers from a serious injury.
The WSJ LawBlog reports on SueEasy.com - a new soon-to-launch website currently in private beta testing. The website invites potential clients to list his or her case, and let a lawyer come find them. According to WSJ Law Blog, the site handles class actions and individual claims with "sub-categories — DUI/DWI, bankruptcy, asbestos settlements. Plaintiffs list their grievances in these categories and attach any relevant documentation." Only licensed lawyers can search the site.
And which lawyer gets a particular listed case? According to WSJ, "[t]he highest bidder wins, and SueEasy gets the money."
Monday, October 22, 2007
Over at Legal Theory, Larry Solum recommends a new book edited by Gerald Postema titled "Philosophy and the Law of Torts." Originally published in 2001, the paperback edition has just been released. The book includes essays by Postema, Gregory Keating, Stephen Perry, Martin Stone, Jules Coleman, Arthur Ripstein & Benjamin Zipursky, Mark Geistfeld, and Bruce Chapman.
From the book's front flap:
When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: How are the notions at the core of tort practice (such as responsibility, fault, negligence, due care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law?
This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law.
Over at the Becker-Posner Blog, Professor Gary Becker and Judge Richard Posner have an interesting commentary on third party liability. Judge Posner kicks it off with "Should Hosts Be Liable For Serving Liquor To Guests Who Cause Accidents While Driving Under The Influence?":
A possible explanation for social host liability is that the combination of tort and criminal sanctions for dangerous behavior is not thought an adequate deterrent. More than a million drivers are arrested every year for driving under the influence, and there are those 16,000 or so annual deaths in accidents involving a driver who is driving under the influence. These figures in themselves do not prove anything, because it is necessary to weigh any benefits of an activity that causes potential harms, even potential fatalities, against those costs. But there is skepticism that people who drink so heavily and uncontrollably as to become a menace to other drivers and court arrest and prosecution for drunk driving are making utility-maximizing judgments. Suppose we think they are more like children than competent adults, and agree that parents should be liable for their children's vandalism if knowing their children's propensity to vandalize they fail to take reasonable steps to control them. Then there would be a strong argument for social host liability, provided the costs are not excessive. It would be akin to accomplice liability for selling a gun to a person who one had reason to think would use it to commit a crime. One would not want in a case such as that to rely on the existence of heavy criminal penalties to deter the buyer from using the gun to commit a crime. .... All these are examples of collective punishment, a term that simply means threatening to punish those who fail to prevent a harm that cannot be as efficiently prevented directly. It is a question of fact rather than (I think) of principle whether in particular circumstances collective punishment is an efficient method of minimizing harm.
Professor Becker responds that he "agrees with Posner that third party liability is desirable in some cases, but that class is narrow." Responding to Posner's comments on social host liability, Becker points out an enforcement problem, and that "[a] far more effective way for states to deter drunk driving is to target drunk drivers more closely and punish them more severely."
Sunday, October 21, 2007
A well thought-out post addressing my recent Nebraska Law Review article is here, providing a practitioner's reaction. (I still have reprints if anyone wants one.)
As a preliminary note, it may be worth noting that I'm only a few years out from active practice and (as I occasionally note) maintain a small consulting practice, largely expert-oriented, so I'm not actually unaware of the realities.
They have three general reactions:
- They point out that two-bit clowns can get published in peer reviewed journals. Indeed they can; I think allowing some level of discovery into the peer review process will help clarify that the fact of peer review does not constitute a guarantee of quality, thus perhaps mitigating the harm of this fact. I certainly don't think anything I suggest would exacerbate the practice.
They also note that "litigation-driven scholarship" is much broader than well-credentialed people, and that's absolutely true too. My primary example comes from a well-credentialed scholar, but I don't mean to suggest that there's not a whole lot of quackery out there.
- Work done by non-testifying experts can be hidden from view forever; pharma research that isn't published is still discoverable. True, and a relevant point.
- Nobody knows how much work done by retained plaintiffs' experts doesn't work out -- i.e., how many times the studies fail. Beck & Herrmann note that it'd be interesting to find out the answer to that empirical question. Indeed it would.
Fortune's Legal Pad has the story and order. In short, the lawsuit was filed on behalf of nine Ecuadorians alleging toxic tort damages. But:
On Tuesday, a federal judge in San Francisco sanctioned three human rights lawyers after three of their clients disavowed having ever suffered from the injuries the lawyers had alleged in complaints filed on their behalf thirteen months earlier.
* * *
In the complaint, filed in April 2006, the attorneys claimed that two of those plaintiffs had “been diagnosed with cancer,” while the third feared contracting it. The attorneys filed interrogatory answers on these plaintiffs’ behalf in February and May 2007 that seemed to reiterate those assertions, but in late May 2007, in depositions conducted in Ecuador, the three plaintiffs disavowed the claims being made on their behalf, claimed not to have previously met the lawyers bringing the case, and not to have realized that lawyers would be suing on their behalf in the United States.
* * *
Judge William Alsup, a Clinton appointee, imposed a $45,000 fine on lead counsel Cristóbal Bonifaz, an American lawyer who was born in Ecuador and who maintains an office in Conway, Massachusetts. If Bonifaz does not pay the fine by the end of the year, Judge Alsup ordered each of his co-counsel, Terry Collingsworth and Paul Hoffman, to pay half of Bonifaz’s debt at that point. Collingsworth is the general counsel of the International Rights Advocates in Washington, D.C., and Hoffman, who was legal director of the ACLU Foundation of Southern California for ten years, is now with Schonbrun DeSimone Seplow Harris & Hoffman in Venice, California.