February 2, 2007
Lilly Briefs Continuing Injunction
Some new briefs in the Zyprexa document leak case:
- Lilly's brief (Download 22extendinjunction.pdf) and revised proposed findings of fact (Download 22findingsoffact.pdf) relating to its request to continue the injunction. They are continuing to pursue the secondary recipients/distributors of the documents as well as Gottstein and Egilman, and make clear that they will be seeking sanctions against the primary people involved. Exhibits (which are voluminous) are presently available at Gottstein's site.
- MindFreedom's brief (Download MindFreedom2-1-07Brief.pdf) requesting that the documents be made public.
Med Mal & Apologies
I've written a few times about the "Sorry Works" approach and the like -- the basic idea being that if medical providers apologize for errors, it may reduce the likelihood of litigation and may further improve the odds of avoiding the error in the future. Just over a week ago, the WSJ had a piece on the subject (paid sub. req.).
I don't have a paid subscription (anyone should feel free to donate one; I sure love those little dot pictures), so I can't tell you much, but the summary in the e-mail to educators summarizes it like this:
This article explains a new approach physicians and hospitals are taking in reacting to medical errors. Traditionally, the medical community has taken a "defend and deny" stance anytime a patient develops problems possibly related to a medical error. Legal departments and risk managers advocated this policy in the past, thinking that it would protect them from lawsuits. A new and growing approach is to "disclose and apologize." The approach actually creates goodwill with the patient and makes them less likely to sue. Suggested steps include: full disclosure to the patients, documentation provided to the patient and family, an offer of an apology, explanation to the family how the mistake will be prevented in the future, and quick and fair compensation. Doctors and medical facilities have found that claims and lawsuits drop when the new approach is implemented. Legal costs have also decreased.
February 1, 2007
Egilman Takes Fifth
As indicated at the earlier Zyprexa documents conference, David Egilman (who until recently was serving as an expert for the plaintiffs in that litigation) has indeed said he'll take the 5th if deposed. Relevant documents:
His lawyer's letter: is here.
And Lilly's lawyer's letter stating that they won't be taking his dep is here.
I was surprised and saddened to hear of the death of Molly Ivins. My local paper doesn't carry her column (despite the fact that she graduated from Smith College here in Northampton) and it hadn't noted, as apparently other papers did, that she was battling breast cancer for a third time. We met her -- once -- at a fundraiser for some group in Austin at Stubb's Barbecue. Jim Hightower was there too, as was the late U.S. Sen. Paul Wellstone (for whom I worked). She was, of course, funny, gracious, and hell raising.
January 31, 2007
Crazy Love for Torts
Kate Butler (Cooley) points out that the story on which the Sundance entrant Crazy Love was based is also a reported case (Riss. v. New York) featured in at least the Prosser Torts casebook. The dissent in the case describes its facts and the plaintiff's claim thus:
Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: "If I can't have you, no one else will have you, and when I get through with you, no one else will want you". In fear for her life, she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State. Linda's repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to Page 584 celebrate the event, she received a phone call warning her that it was her "last chance". Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda's face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda's fears, and for the next three and one-half years, she was given around-the-clock protection.
No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda's ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.
Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm.
The majority opinion affirms the dismissal of the case on the basis of sovereign immunity.
The story gets more interesting after Pugach's release from prison. From the recent NYT story (which is now subscription-only):
Ms. Riss became engaged to someone else and tried to end the affair with Mr. Pugach, who reacted by stalking her; he then hired three men who threw lye in her face, leaving her blind. During 14 years in prison for the crime, he remained obsessed with Ms. Riss, sending her letters and eventually persuading her to meet him after he was released in 1974. The two were married that year, and are still married today.
But there was more. A widely publicized trial in 1997 found Mr. Pugach back in a courtroom, defending himself against charges that he had sexually abused another woman and threatened to kill her. Standing by his side this time was Linda Pugach, who not only proclaimed her husband's innocence, but also took the stand in his defense.
A jury found him not guilty of making threats against his ex-mistress, but guilty of one count of second-degree harassment, which drew a sentence of 15 days in jail.
After prison he returned home to his wife.
Magnolia Pictures has acquired distribution rights.
January 30, 2007
AP Picks Up Zyprexa/Berenson Story
...and it's here. The Times's response:
"We just got all the papers in this matter, including the invitation, and we're studying them and will respond to the judge in due course," said spokeswoman Diane McNulty. "We believe our reporting in this matter was very newsworthy and was derived from routine newsgathering procedures."
I'm certainly no reporter, but as I noted before, I've never seen a situation where a reporter apparently put a source in contact with an attorney with the purpose of getting documents out from under seal.
(The order is excerpted and linked to in this post.)
Mission: Space Lawsuit Settles
I previously wrote about the Mission: Space lawsuit filed based on the death of four-year-old Daudi Bamuwamye after riding the spinning attraction. (There are a number of interesting comments to that post as well.) That lawsuit has now settled.
Disney, after several incidents on the ride, has started to offer a non-spinning version of the space flight simulator.
Political Appointees to Supervise Regulations
Within 60 days of the date of this Executive order, each agency head
shall designate one of the agency's Presidential Appointees to be its
Regulatory Policy Officer, advise OMB of such designation, and annually
update OMB on the status of this designation.'
It additionally requires agencies to make an annual aggregate cost/benefit analysis of all new regulations, rather than only evaluating each regulation separately.
The Times story suggests that the White House is in particular aiming at EPA and OSHA, but the effects will presumably be felt elsewhere.
January 29, 2007
Zyprexa: Well, What a Lovely Invitation to Receive
This is incredibly interesting. Judge Weinstein has "invited" (Download berenson.pdf) Alex Berenson from the New York Times to discuss his role in the Zyprexa document leak:
I noted Berenson's apparent involvement in my earlier post excerpting testimony from the hearing.
I'd also note that the "conspiracy" language can't be making Egilman or Gottstein feel real comfy right now.
Arizona Law Review Economic Torts-A-Palooza
The new issue of the Arizona Law Review is all about economic torts. Thanks to the Editor in Chief for providing a quick summary:
As you may know, our most recent issue (Vol. 48, No. 4) is dedicated to consideration of economic torts (in conjunction with the current Restatement project). One of the recent threads in your blog included discussion of a piece in the issue by Professors Goldberg, Sebok, and Zipursky. I think that there is much more in the issue that might be of interest to your community: For starters, Mike Green’s critique of the GSZ piece would be a nice addition to the current thread. The issue includes a slew of articles discussing the economic loss rule (Judge Posner, Robert Rabin, Dan Dobbs, Mark Gergen, Anita Bernstein, Oscar Gray and others weigh in on the doctrine). Fraud and defamation also receive considerable attention (from Ian Ayres, Andrew Klein, and David Anderson among others). There is also a very strong student note by the Law Review’s own Travis Wheeler that is cited by some of the other articles in the issue.
Indeed, it looks like a terrific lineup.
Football and Disability
An interesting story in yesterday's Washington Post, even if not directly torts-related, about an aging football player attempting to prove that his current disabilities are related to his injuries (including a broken neck) when playing professional football.
January 28, 2007
"House of Zog" Would be a Good Name for a Band.
A number of Torts and Products Liability casebooks use Hauter v. Zogarts, 534 P.2d 377 (Cal. 1975) for a variety of issues relating to misrepresentation and warranty, and for good reason. It's a great case involving something called the "Golfing Gizmo" produced by the wonderfully-named "House of Zog." Each year, I've tried to find a picture of the gizmo, and I've failed.
Until now. I think.
Check out this site, which appears to have the Canadian version of the same device, lacking, sadly, the "COMPLETELY SAFE BALL WILL NOT HIT PLAYER" inscription (which, incidentally, should be the name of House of Zog's first album).