Thursday, March 25, 2010
Tuesday, March 23, 2010
Tuesday, March 16, 2010
The Albany Law Journal of Science & Technology has published a symposium issue on Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label. My article, Promotion of Off-Label Drug Use: In Favor of a Regulatory Retreat, 19 Alb. L.J. Sci & Tec. 609 (2009), is included.
March 16, 2010 in Aggregate Litigation Procedures, FDA, Mass Tort Scholarship, Off-Label Drug Use, Pharmaceuticals - Misc., Procedure, Products Liability, Regulation, Resources - Federal Agencies, Science | Permalink | Comments (0) | TrackBack (0)
Monday, March 15, 2010
Monday, March 8, 2010
BNA Law Week reports:
Bruesewitz v. Wyeth,
No. 09-152. Does Section 22(b)(1) of the 1986 National Childhood
Vaccine Injury Act, which states that "[n]o vaccine manufacturer shall
be liable in a civil action for damages arising from a vaccine-related
injury or death associated with the administration of a vaccine ... if
the injury or death resulted from side effects that were unavoidable
even though the vaccine was properly prepared and was accompanied by
proper directions and warnings," preempt all vaccine design defect
claims, whether based on strict liability or negligence?
Monday, February 22, 2010
Professor David Owen (South Carolina) and I are quoted in a report tonight on All Things Considered on National Public Radio; the audio report -- Toyota Seen Facing Multiple Lawsuits, by Wendy Kaufman -- will also be posted on the web tonight at 7:00 p.m. EST.
February 22, 2010 in Aggregate Litigation Procedures, Class Actions, Informal Aggregation, Lawyers, Procedure, Products Liability, Regulation, Resources - Federal Agencies, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)
Monday, February 8, 2010
Kenneth Abraham has an enlightening guest post on TortsProf Blog called "Four Conceptions of Insurance." The relationship between the tort system and insurance systems is fascinating and important. More work needs to be done in this area.
Tuesday, January 19, 2010
Back in November of 2008, England and Wales asked Lord Justice Jackson to review civil litigation costs and how those costs affected access to justice. He recently issued his final report (a hefty 584 pages). BBC News calls the report a "radical plan[ ] to shake up costs of civil cases." Here's an excerpt of the story:
Lord Justice Jackson's Review of Civil Litigation Costs is a result of a recognition that it is simply too expensive for many people and small companies to bring or defend civil cases.
"What I want to do is to focus the system so less money is paid to intermediaries and others in the process, and more money is paid to victims," he told the BBC.
"I am concerned about individuals, small businesses and others who need to use the courts."
His proposals are radical. He has looked at the factors forcing costs up in civil actions, and in particular he has focussed on Conditional Fee Agreements (CFAs), more commonly known as "no win, no fee" agreements.
Despite BBC's headline, the final report was ultimately less radical than the preliminary one, which leaned toward abolishing England's cost-shifting "loser pays" rule. The final report concludes that cost shifting should remain the norm (even in collective actions), but excepts personal injury claims from the norm. Whether personal injury claims are brought individually or collectively, the final report recommends "qualified one-way costs shifting" where winning claimants could recover their costs from the defendant, but generally do not have to pay the defendant's costs if they lose.
Of additional import, the final report recommends that solicitors and barristers should be allowed to enter into contingency fee arrangements, which are currently prohibited. Before entering into such an arrangement, the report recommends that claimants receive independent advice. It also suggests capping the fees at 25%.
Finally, the report recommends making third-party funding available to personal injury claimants (including those involved in collective actions). It defines third party funding as "The funding of litigation by a party who has no pre-existing interest in the litigation, usually on the basis that (i) the funder will be paid out of the proceeds of any amounts recovered as a consequence of the litigation, often as a percentage of the recovery sum; and (ii) the funder is not entitled to payment should the claim fail." (Final Report at p. 17). Very interesting.
Monday, January 11, 2010
The Associated Press is reporting a study that demonstrated that there are alarming percentages of the heavy metal Cadmium, which among other things causes cancer, in certain inexpensive children's jewelry (particularly charm bracelets). Some of the jewelry was sold at Wal-Mart and Claire's (a ubiquitous accessory chain here on the East Coast that many parents will be familiar with).
It seems that if its not one dangerous substance (lead) its another (cadmium). This underscores the importance of regulating consumer goods, especially children's toys and jewelry. Trying to compensate parents after the fact for the damages caused by exposure to carcinogens, while important, will never be as good as preventing the damage in the first place.
Tuesday, December 15, 2009
Today's Wall Street Journal has an article on increases in Black Lung Disease, Black Lung on Rise in Mines, Reversing Trend, by Kris Maher. Black Lung claims are covered by a federal Black Lung program, which provides an administrative mechanism for compensation, funded by a tax on coal. What's interesting is that the rise in claims occurs despite improving technology, which would be expected to decrease health problems. Thus, the article explores possible causes, such as longer workshifts or more productive machinery that might produce more dust. If machinery is the culprit, it's possible that individual mining companies might have had an incentive to prioritize powerful machinery over safe machinery, if the costs of worker illness are spread throughout the entire industry via a coal tax. (Remedy: return to a system of individual tort claims against mining companies, or at least some administrative/tax penalty for companies with higher Black Lung claims.)
But one other possibility for the rise in Black Lung needs to at least be considered and explored: fraud. Recent events with silicosis are similar: historically falling disease rates in tandem with improving technology, followed by an odd spike in supposed disease incidence. In a now-storied Daubert inquiry, Judge Janis Jack, who herself had a background in nursing, inquired into the basis of expert testimony and diagnosis and uncovered biased and unreliable procedures that may amount to fraud; her discoveries effectively ended what appeared to be a new mass tort. See NPR, Silicosis Ruling Could Revamp Legal Landscape. Concerns of fraud and abuse should be even greater in the context of an administrative program that lacks the adversarial scrutiny of formal litigation. And the Black Lung program has historically been plagued by such problems. A 1989 article in the West Virginia Law Review, authored by a former Department of Labor counsel and a private practitioner, concluded,
[T]he program has been plagued by fraud and abuse. There have been investigations, and indictments, and convictions of agency personnel, claimant's representatives, and medical care providers. The program has been infected by an undercurrent of “petty corruption.” If anything, the program is the most often cited example of why Congress should leave occupational disease compensation to the individual states.
Allen R. Prunty & Mark E. Solomons, The Federal Black Lung Program: Its Evolution and Current Issues, 91 W. Va. L. Rev. 665, 734 (1989).
Thursday, October 29, 2009
On October 14, 2009, the Washington Legal Foundation hosted a web seminar, Communicating on Off-Label Treatments: Navigating the Treacherous Path Paved by Civil and Criminal Law Enforcement, with speakers Robert Salerno and Adam Hoffinger of Morrison & Foerster. Streaming video of the event is available online.
October 29, 2009 in FDA, Off-Label Drug Use, Pharmaceuticals - Misc., Procedure, Regulation, Resources - Federal Agencies, Resources - Organizations, Science | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 20, 2009
The newsletter is now available and includes articles on Lone Pine orders, public nuisance law, federal preemption, sophisticated user and sophisticated intermediary defenses, the Fake Bad Scale Test, and document review.