TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, March 31, 2006

MMR & Autism on the Virological Front

Black Triangle has a readable overview of a new study on the virological front:

Translation: measles virus does not persist in autistic children and virology does not support a link between MMR vaccine and autism.

This matches the most solid epidemiological evidence of which I am aware.

March 31, 2006 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, March 30, 2006

Jury Changes

An interesting piece about potential reforms in jury service.  The lede:

Imagine showing up for a college course and being told you can't take notes or ask questions. The course will be taught by several professors, and what they say may or may not be on the final exam. If you know anything about the subject matter, you'll be dismissed.

Oh, and no discussing the lectures with any of your classmates until the end of the course.

That's what serving on a jury is like in many courtrooms, legal scholars say. But jurisdictions around the country are taking measures to change one of the pillars of American democracy, including letting jurors ask questions and telling them ahead of time what points of law to focus on.

March 30, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

CJD Hearts West Virginia, Mississippi, Illinois, Etc.

As previously noted, the U.S. Chamber of Commerce has released its new list of worst states for "legal fairness,"

poll[ing] more than 1,400 senior attorneys to explore how reasonable and fair the tort liability system is perceived to be by U.S. businesses. The attorneys were asked to judge a number of factors, including overall treatment of tort and contract litigation, treatment of class action suits and mass consolidation suits, judges' impartiality and competence, and juries' predictability and fairness.

The Center for Justice & Democracy has responded, with press releases tied to Gulf Coast states, Wisconsin, Illinois, West Virginia, and Florida.  In most cases, CJ&D's response is not so much that the criticized states have great legal systems as that (a) the Chamber's survey is solely "based on nothing more than the views of corporate lawyers who defend corporate wrongdoers" and (b) the states are plenty business-friendly anyway.  For example:

As one illustration of how completely erroneous these “rankings” are, the same day the Chamber released its report, an economic survey by Chicago-based Pollina Corporate Real Estate Inc., evaluating businesses based on 26 factors put Alabama as #5 in the nation for business friendliness.

* * *

CJ&D also condemned the Chamber for focusing attacks on several other states including Wisconsin, Illinois, West Virginia, and Florida, all of which are doing well or better than they have in recent years in terms of business climate. Florida was just named one of the best states in the nation for doing businesses by the Pollina poll.

March 30, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 29, 2006

Apple Announces Volume Protection

Presumably in response to the lawsuits contending that iPods go too loud and can hurt the listener's ears, Apple announced today a software update for the newest iPods and the iPod Nano that will permit parents to set a maximum volume, or for ordinary listeners to set a maximum for themselves, protected by a combination code.

“As the leading provider of digital music players, Apple continuously brings iPod customers innovative and easy to use solutions,” said Greg Joswiak, Apple’s vice president of Worldwide iPod Product Marketing. “With the increased attention in this area, we want to offer customers an easy to use option to set their own personal volume limit.”

March 29, 2006 in Goofy Cases, Products Liability | Permalink | Comments (0) | TrackBack (0)

The Medical Malpractice Myth Exposed Review

My colleague Barbara Noah (scroll down) has authored a review of Tom Baker's The Medical Malpractice Myth for Law & Politics Book Review.  An excerpt:

Without a doubt, the book is quite timely.  President Bush’s 2006 State of the Union Address included a request for medical liability reform based on the malpractice myth–that “lawsuits are driving many good doctors out of practice.”  Throughout the book, Baker very effectively connects the legal arguments and the insurance and litigation data to his broader points about the politics of tort reform.  Baker’s style is concise, lively, and very readable.  He effectively weaves in the personal stories of particular plaintiffs to illustrate many of his broader points.  The book is aimed at and accessible to a general audience, but it will also prove interesting and informative to lawyers, and to legal, medical and public health academics.

March 29, 2006 in Current Affairs, Damages, Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Mississippi Says: Thank Heavens for West Virginia and Louisiana

...because now Mississippi is ranked 48th by the U.S. Chamber of Commerce!  The change is attributed to the various statutory changes to the tort system in recent years.  Not everyone is convinced:

Stevens [a Jackson, Miss., trial lawyer] said perception has everything to do with why Mississippi remained 50th for so long.

"People want to say Mississippi is a piece of crap, and it should outrage us. This poll has nothing to do with our civil justice system.

"They think in Mississippi we're a bunch of toothless, no-shoe-wearing ignoramuses."

When Mississippi had several large jury verdicts, a lot of other states were worse, he said.

The resulting tort reform has made it difficult and sometimes impossible for those injured to get the damages they deserve, he said.

March 29, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 28, 2006

Joint & Several Liability Still the Law in Pennsylvania

Pennsylvania Governor Ed Rendell vetoed Senate Bill 435 which would have eliminated joint & several liability for defendants found less than 60% at fault.  (The bill also carried exceptions allowing joint & several liability in the case of intentional misrepresentation, intentional torts, and a couple of statutory violations relating to hazardous material releases and liquor code violations.)

The governor, in his veto letter, said he still believes that reforms in joint & several liability are necessary:

. . . I am vetoing Senate Bill 435 because it does not effectively balance the critical needs of victims who should be adequately compensated for their injuries with the reasonable needs of businesses to limit their exposure to liability for damages caused by other parties.

In the days since the passage of Senate Bill 435, I have received letters from many business associations and business leaders whom I greatly respect all urging me to sign this legislation into law.  I have also received many letters from union and consumer groups (such as the American Association of Retired Persons and Mothers Against Drunk Driving) all urging me to veto this legislation.  Just as our businesses have given me telling examples of the unfairness and harm that is caused to them by the current law, consumer organizations have given me just as telling examples of how victims – many times the children of parents killed by negligent actions – would be left without adequate compensation for their loss.

I believe we must find a better way – a law that will balance the equities between our businesses and the victims of negligence.

Gov. Rendell specifically cites efforts by Sen. Greenleaf and Rep. Gannon to reach a compromise as good examples.  Point of Law is skeptical of the reasons given for the veto.

The vetoed bill also had some interesting provisions relating to assumption of risk in the context of downhill skiing and off-road vehicle use (at least interesting to me, since we're in the middle of assumption of risk in my evening Torts class):

    23     (C)  DOWNHILL SKIING.--
     3     MODIFIED BY SUBSECTIONS (A) AND [(B)] (A.1)

March 28, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

It's Fun When Highly-Respected Publications Fight

Really, it is.  This blog at The Scientist has a nice summary the ongoing tiff between Nature and Encyclopaedia Britannica, with some intriguing factoids, including Nature's apparent refusal to share the data on which their EB/Wikipedia comparison was based.

March 28, 2006 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Monday, March 27, 2006

Google AdWords

Lawyers dominate the Google AdSense keywords, with "mesothelioma lawyers" commanding over $54.  (Via Consumerist; I see Overlawyered picked up on it too.)

One project I've thought about but never quite gotten around to is to test the predictive value of plaintiff attorney advertising for pharmaceutical plaintiffs -- i.e., determining if an increase in ads by attorneys for a particular pharmaceutical product predicts the withdrawal of or other negative action relating to that drug. 

Purely out of curiosity, I periodically checked on the numbers of ads for Vioxx attorneys between the initial indication of Cox-2 inhibitor problems and Vioxx's withdrawal, and saw a modest increase in numbers in the weeks prior to the withdrawal, but I wasn't nearly methodical enough to say there was anything significant there.  It would be a fun project for an enterprising programmer; shouldn't be too hard to parse the search results pages automatically, track where the links lead, and identify trends.

March 27, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Putting the "Tort" in "Torture"

...that's the idea of this Jurist piece by Richard Seamon of Idaho:

The near-total absence of remedies for U.S. sanctioned torture does not reflect a determination by Congress or the courts that remedies are unwarranted. Rather, it reflects that current law was not designed with U.S.-sanctioned torture in mind. Congress designed the FTCA to deal with the "garden variety torts" of federal employees, as the Supreme Court has observed. . . .

* * *

The problem with current law is that it treats U.S.-sanctioned torture as a mere tort. Instead, it should be treated as a human rights and a civil rights violation. One way to move toward this treatment is through legislation that would make the U.S. and its officials liable for torture under the same circumstances as local governments and their officials would be under the civil rights statute, 42 U.S. Code Section 1983. Such legislation, though not ideal, might be politically feasible. It would put the U.S. and its officials on a similar footing with local governments and theirs -- hardly an irrational result -- using familiar and well developed (even if arguably flawed) legal standards.

March 27, 2006 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, March 26, 2006

How Insurance Rates Get Set

The Post has a great piece about the various GEICO entities and how they end up setting insurance rates, based on materials GEICO submitted to New Jersey regulators:

The guide looks at an applicant from three perspectives: driving record, personal characteristics and the vehicles to be insured. It appears to seek information beyond a basic application and does not address many standard questions such as miles driven, type of car and gender of driver.

Driving record is mostly what you might expect -- accidents, tickets and other violations, and license suspensions and revocations. But there are some nuances: Recent accidents are considered less favorable than those more than a year old; for families or other applicants with more than one driver, the guide says, "if there is more than one accident, view the risk more favorably if the accidents are spread among the drivers, rather than one driver having multiple accidents."

It goes into quite a bit of detail, including categorization by occupation into five categories.  The endpoints:

The guide divides applicants into half a dozen or so "groups" based on occupation and education. "The most favorable occupations" are those in the top two groups plus military personnel above pay grade E-6 (Army staff sergeant) and graduate students.

Group 1, "occupations that have exhibited superior loss experience in the past," generally requires a bachelor's degree or higher, such as accountants, architects, lawyers, teachers, and "professional Federal employees in an administrative or technical position."

* * *

Group 5 includes "minimally skilled clerks, assistants and postal clerks" along with "unskilled and semiskilled blue and gray collar workers," gray collar generally referring to service workers, such as waiters and security guards.

March 26, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, March 25, 2006

Top Five SSRN Torts Papers

1.  Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime
  John R. Lott Jr. and John E. Whitley 
American Enterprise Institute (AEI) and  University of Adelaide - School of Economics 
Date Posted:May 22, 2000
Last Revised:June 10, 2002
Working Paper Series

2.  Cognition and Cost-Benefit Analysis
Cass R. Sunstein 
University of Chicago Law School
Date Posted:October 14, 1999
Last Revised:November 14, 1999
Working Paper Series

3.  Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002
Journal of Empirical Legal Studies, Vol. 2, pp. 207-259, 2005
Bernard S. Black,  Charles Silver,  David A. Hyman and  William M. Sage 
University of Texas at Austin - School of Law, University of Texas Law School [Ed. note: Hook 'em], University of Illinois College of Law and Columbia Law School
Date Posted:October 25, 2005
Last Revised:January 23, 2006
Accepted Paper Series

4.  Event Studies and the Law - Part I: Technique and Corporate Litigation
Sanjai Bhagat and Roberta Romano 
Leeds School of Business and  Yale Law School
Date Posted: May 1, 2001
Last Revised:January 16, 2002
Working Paper Series

5.  The Cat in the Microwave? (Die Katze in der Mikrowelle?)
Recht der Internationalen Wirtschaft, Vol. 8, p. 598, 2003
Georg Wenglorz and Patrick S. Ryan 
Independent and  University of Colorado at Boulder, Interdisciplinary Telecommunications Program
Date Posted:January 3, 2004
Last Revised:January 29, 2004
Accepted Paper Series

March 25, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 24, 2006

Shameless Self Promotion: Peer Review Discovery and Litigation-Driven Scholarship

My current article (out under review all over the place), The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, is now up on SSRN.  The abstract (with which I am not entirely thrilled, incidentally):

The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony.  Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.

This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process.  Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.

In this Article, I explore these phenomena and the criticisms of them, as well as the history of peer review itself.  Contrary to the critics, I ultimately conclude that each, in fact, can strengthen both law and science through cross-fertilization, if appropriate checks are established.  Such efforts will better reflect law and science’s overlapping magisteria (a term roughly meaning the disciplines’ area of authority).  A better recognition and understanding of this overlap will create incentives to improve both law and science.

The full article is at SSRN. Comments are welcome, of course.


March 24, 2006 in Experts & Science, Scholarship | Permalink | Comments (0) | TrackBack (0)

All Federal Appellate Daubert Decisions

Hooray for Blog 702 (which you should be reading already anyway).

March 24, 2006 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Thursday, March 23, 2006

Florida Senate Committee Passes Tort Reform

Sounds like the hearing was rather uneventful.  From the Sun Sentinel story:

There was little discussion among committee members about the controversial issue that has pit two of Tallahassee's most aggressive interest groups -- big business and trial lawyers -- against each other and is driving hundreds of thousands of dollars in campaign contributions to both political parties this year. Senators asked only a handful of questions of presenters and said almost nothing in debate before voting.

Sen. Walter "Skip" Campbell, D-Tamarac, withdrew an amendment that would have forced companies that write insurance policies for businesses to lower their rates to account for the savings they would see if joint and several is abolished.

Afterward, Campbell said he decided it was no use aggressively fighting the measure on Wednesday because Republican senators had been "locked down" and instructed to oppose any amendments.

Sounds like Campbell may be wondering the same thing I am -- that is, has there been an impact from such a move in the states that have taken this step?

March 23, 2006 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 22, 2006

TGN1412 - An Argument for Openness in Clincial Trials

An on-point excerpt from a BMJ editorial at Black Triangle.

March 22, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

The Story of a Drug

In the Pipeline has an interesting story of the development and apparent decline of a new fixed-dose combination drug, BiDil.  The drug in question is particularly interesting for its indication, which is, according to Lowe, probably the first "race-based pharmaceutical":


(Blogging may be slow in the next couple of days; I'm solo dad and my son has an ear infection, it seems.  Hooray!)

March 22, 2006 in Experts & Science | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 21, 2006

Guidant and the Independent Study

Often, when a company commissions an "independent investigation" into its own conduct, some eye-rolling is appropriate, and I imagine there was some of that when Guidant announced that it would commission such a study into its handling of its defibrillators.  (Guidant had evidently known of rare but significant flaws for around three years prior to disclosing them to doctors.)  To date, Guidant has said it's facing around 150 lawsuits.  (The MDL is in Minnesota.)

But this very interesting NYT story suggests that the panel was genuinely independent and, indeed, rather critical of Guidant.  The lede from the NYT:

An expert panel commissioned last summer by the Guidant Corporation to review its handling of heart device flaws said yesterday that the company had systematically failed to fully assess patient safety in deciding whether to publicize product failures.

The group found that decisions made by Guidant about how to address or disclose product problems were driven by statistical projections from engineers rather than assessments from doctors about the medical consequences of those failures. The group urged Guidant to create an outside panel of physicians and others who would regularly monitor the safety of its devices and advise the company about when and how to notify doctors and patients about problems.

Guidant has posted the full report (over 100 pages, including the appendices) on their website; the key recommendations start at page 20.  On the one hand, it surely provides a blueprint for plaintiffs' counsel; on the other hand, it may be a potent argument against punitive damages if Guidant follows the recommendations.  And, most important, it seems to be the right thing to do. 

As of this morning, Guidant has posted the title of a press release related to the report, but it links to nothing (and the next consecutively-numbered URL I guessed at results in a 404 error).  I'll post a link to the release once it gets posted.  (see below)

The Times story provides this as the company's response:

In a statement yesterday, James M. Cornelius, the chief executive of Guidant, which is based in Indianapolis, said it and other makers of heart devices recognized that the environment governing the disclosure of product problems had changed.

"We are taking the necessary steps to improve surveillance of device performance and safety, as well as physician and patient communications," Mr. Cornelius said.

Update: Guidant has posted its response now.

James M. Cornelius, Chairman of the Board and Chief Executive Officer of Guidant Corporation, stated, “I want to express our deep appreciation to the Independent Panel for its careful analysis, as well as for the incisive and thorough recommendations contained in the Panel’s report.  The Panel has presented Guidant with a blueprint for improvement and enhancement of our postmarket evaluation of product reliability and communications procedures regarding the performance and safety of our devices. We intend to implement the recommendations to further benefit patients and physicians.  We are already working closely with Boston Scientific to ensure a smooth transition of these recommendations following the completion of the pending merger between Guidant and Boston Scientific.”

* * *

“Guidant has already begun to implement changes that will address some of these recommendations, including taking steps to provide enhanced information through the expanded Product Performance Report we now make available to physicians and patients on our website.  This Guidant initiative will be supplemented by additional communication recommendations made by the Panel. And, as an immediate response to one of the Panel’s major recommendations, the company is actively recruiting for the newly created position of Chief Medical and Patient Safety Officer at CRM, a physician who will be responsible for overseeing all issues relating to patient safety,” Cornelius continued.

March 21, 2006 in Current Affairs, Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

I Don't Remember "Prevent the Defendant from Selling Her Life Story" as a Gore Guidepost

An interesting rationale for punitive damages, and what seems like a bit of a stretch on foreseeability against a murderer's employer, both presented in one case:

A jury Monday awarded $6 million in actual damages and $100 million in punitive damages to the family of a man fatally poisoned by his wife, a toxicologist who worked for San Diego County at the time.

So - to be clear - the punitives are only against the wife (whose responsibility was set at 75% with the County's at 25%), who was a meth addict having an affair with her boss, and who

staged an "American Beauty" suicide scene at her La Jolla apartment, according to prosecutors, to make it look like her 26-year-old husband killed himself.

Fresh red rose petals were found around the victim's head and shoulders, and his wedding photograph was propped up near his head in a scene reminiscent of one in the 1999 movie.

Why $100 million?  Not because of the details of the tort exactly, but because the details of the tort were so lurid that the jury feared her making a bunch of money.  From the story, anyway, it appears that was the sole basis for the size of the award:

Another juror said she voted for Rossum to pay $200 million in punitive damages so there wouldn't be any chance that she'd get away with any money.

* * *

After awarding $6 million in actual damages, the jury heard from one witness in the punitive damages phase of the trial.

Melissa St. James, a marketing professor at Cal State Dominguez Hills, testified that Rossum was a "notorious" criminal who could sell the rights to her story for $2.5 million or more. She also said Rossum's future earning potential was "unlimited."

As for the county's responsibility (set at 25%), it's interesting as well:

Senior Deputy County Counsel Deborah A. McCarthy said she is confident that the jury award will be reversed on appeal.

"It is not the duty of the county of San Diego to prevent a wife from murdering her husband," McCarthy said outside court. "If this case stands, it will expand public liability in a way the state of California never envisioned."

* * *

McCarthy told the jury that Rossum was a killer who just happened to be a county employee at the time she committed her crime.

Officials at the Medical Examiner's Office were told they didn't have to do a drug test or a background check on Rossum when she applied to become a toxicologist because she was already a student worker, McCarthy said.

Even if a drug test had been done, there is no evidence that Rossum would have failed it, she said, adding that Rossum, a methamphetamine addict, relapsed only a week or two before she murdered her husband.

But one juror said the majority of the panel felt the county was remiss in not doing a background or drug check on Rossum.

It's a good example of a jury finding employer responsibility even in the absence (I assume anyway) of a respondeat superior finding.

March 21, 2006 in Damages | Permalink | Comments (0) | TrackBack (2)

Monday, March 20, 2006

No Cert. in 18:1 Punitives

The Supreme Court denied cert. today in a Philip Morris case with $100 million in punitives on $5.5 million in compensatory damages.  The $100 million was reduced from $3 billion.

March 20, 2006 | Permalink | Comments (0) | TrackBack (0)