TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, June 16, 2007

Avandia Lawyers May Also be Able to Facilitate a Deal with a Former Nigerian Dictator

Looks like plaintiffs' lawyers are pretty enthused about the Avandia possibilities.  Not only is there a ton of Google ads for attorneys, but they're in the spam game now too. Here's one I received on my home account today:

From: "AVANDIA Lawsuit Info" <>
Date: June 16, 2007 3:37:32 AM EDT
To: "Subscriber"
Subject: Have You Taken AVANDIA? Important Lawsuit Information

AVANDIA Lawsuit Info
Have You Taken AVANDIA?

Important Lawsuit Information

The New England Journal of Medicine has released the results from 42 studies
involving 15,560 diabetes patients who were prescribed Avandia.

Patients getting Avandia were 43 percent more likely to have a heart attack.
The study also suggested a trend toward higher death rates in the Avandia group.

Avandia (rosiglitazone) is manufactured by drug maker GlaxoSmithKline,
and is one of the most popular pharmaceuticals for the treatment of Type 2 Diabetes

If you or someone you know has taken Avandia you or that someone or their family may be entitled to monetary damages.

To stop receiving announcements

The Legal Advocate
300 East 57th Street
New York, New York 10022

The Legal Advocate, TLA, LLC and Think Interactive Mrktng, Inc are not law firms and are not associated with GlaxoSmithKline PLC*
You must fill out the attached form to be interviewed by an attorney to determine whether you or your relative qualifies.
Certain cases may only be accepted based on federal and state statutes.

Both the nominal return address and the URL domain are registered anonymously and share the same SSL certificate host ( - cute).  It resolves to -- and LegalLeadsHost has made a prior appearance spamming for clients.


June 16, 2007 in Products Liability | Permalink | Comments (2) | TrackBack (1)

Friday, June 15, 2007

Bates Numbering History

I occasionally wondered in practice the origin of the term "Bates numbers."  (In case you don't know, Bates numbers are the sequential numbers at the bottom of documents produced in litigation.)  Well, hooray for Wikipedia, which notes that the origin is from a patent issued to Mr. Bates and links to a history of the successor entity.

Hey, it was interesting to me, anyway.

June 15, 2007 in Documents | Permalink | Comments (0) | TrackBack (0)

Liability for the TB Lawyer Guy

Tony Sebok addresses the potential tort liability for Andrew Speaker, the Atlanta lawyer who flew after diagnosed with TB.  Among other things, he takes a look at the interesting potential claims for passengers who do not catch TB but fear it.

Incidentally, can I just note that this photo really should be a screen cap from a soap opera, not something related to actual news?



June 15, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, June 14, 2007

Edwards on Malpractice Reform, Pharmaceutical Marketing

John Edwards issued a fact sheet [PDF] today addressing a number of aspects of health care, including malpractice reform.  Some excerpts:

While patients injured by their doctors’ negligence deserve fair compensation, frivolous
malpractice suits benefit no one. John Edwards will reduce the cost of practicing medicine with common-sense reforms that help doctors and patients:

• Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers
to have an expert testify that actual malpractice has occurred before bringing a suit.
There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer
who files three frivolous cases will be forbidden from bringing another suit for the next
10 years.

• Create Competition Among Insurers: To reduce malpractice insurance premiums for
doctors, Edwards will revisit the insurance company exception to the nation’s antitrust
laws. . . .

• Reduce Malpractice: Only 5 percent of doctors have paid malpractice claims more than
once since 1990. This same 5 percent are responsible for over half of all claims paid.
Edwards will give resources and incentives to state medical boards for more responsible
discipline. He will also create a knowledge bank that encourages doctors to report
medical errors voluntarily, making other caregivers and hospitals aware of preventable

He also discusses pharmaceuticals some.  Excerpts:

• Prevent Misleading Drug Advertisements: Pharmaceutical ads have become a multibillion
dollar industry, with America’s seven largest drug manufacturers spending more
than twice as much on marketing, advertising and administration than they do on research
and development. Edwards believes we must ensure that advertising does not
unnecessarily drive up costs for consumers. Edwards’ plan will require new restrictions
on drug advertisements to ensure that they provide the whole truth to the public about
drug side-effects and efficacy compared to placebos and cheaper alternatives. As a
result, drug companies will no longer be able to advertise costly me-too drugs without
disclosing the existence of less costly, equally effective alternatives. Edwards will also
double FDA resources dedicated to enforcing direct-to-consumer advertisement rules,
repeal federal rules that unnecessarily slow down action on misleading drug
advertisements, grant FDA authority to levy civil fines after due process for violation of
federal advertising rules, and require independent, head-to-head testing of drugs as a
condition of FDA approval.

* * *

• Protect Patients Against Dangerous Medicines: When the arthritis drug Vioxx
was withdrawn from worldwide markets in 2004 due to concerns it may cause adverse
cardiac events, it raised serious concerns about drug safety in the United States. Edwards
will help protect the public by:

o Restricting direct-to-consumer advertising for new drugs to ensure that
consumers are not misled about the potential dangers of newly marketed

o Strengthen the FDA’s ability to monitor new drugs after they reach the
marketplace. He will also ensure that researchers evaluating medical devices
and drugs are truly independent.

(In case anyone thinks it's relevant, I gave Edwards some money in 2004 and may do so again this cycle.)

June 14, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (2)

Limitations Periods in Sexual Abuse Cases

There's an interesting fight taking place in Minnesota over limitations periods in sexual abuse cases, with full-page ads and everything.  The ad in question was placed by a group called The American Society for the Defense of Tradition, Family and Property, who advocates against extending limitations periods for sexual abuse cases out of fear that current churchgoers' contributions will go to old torts, bankrupting the church.  I can't find a copy of the ad on their site, but this essay summarizes the themes pretty well.


June 14, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Ads & Patient Care

Various folks (Pharmalot is the most measured, then there's also TortDeform with my comment, and Greedy Trial Lawyer) have noted a Lilly-funded study indicating that advertising can scare folks off of their medicine.  A year ago or so, I noted Overlawyered's citation to an earlier study (also noted by the main story this time around)

Both studies are (no surprise) funded by interested parties - Lilly in the current study's case, the Chamber of Commerce in the previous one.  But the results seem pretty reasonable to me, and the concern raised here seems legitimate:

'People see these ads and they think that they're bad for them, so they quit taking them,' said Teri Breister, executive director of the National Alliance for the Mentally Ill in Mississippi. 'But these patients' lives have come apart again. Every time they stop taking their medications, the episodes become worse.'

The more responsible lawyer ads tell viewers not to change meds unless directed by their physician; many, however, do not.  Given the massive problems with compliance on all medications (not just psychiatric), it's worth considering how the ads might shift the balance.

(Addition: PoL also has this on the subject; right now, the post is up about 9 times, so who knows which one to link to.  Second addition: Ted Frank has posted too.)


(Oh, and as usual, I do a little bit of work for pharma companies, none in the psychiatric arena.)

June 14, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 13, 2007

Bernstein on Pharma Litigation

Anita Bernstein recently posted the following paper on SSRN: "Enhancing Drug Effectiveness and Efficacy Through Personal Injury Litigation."

The abstract provides:

For decades, personal-injury liability for the harms that prescription drugs cause has languished, unloved among legislatures and commentators. A near-consensus frets about overdeterring manufacturers; writers fear that lawsuits drive valuable pharmaceutical products from the American market. Even though confidence in FDA oversight - the main alternative to liability as a source of consumer protection - is in decline, few express concern about the possibility of underdeterrence.

Without denying that the costs of personal-injury liability might threaten the supply of prescription drugs, this article, first presented to an audience of state and federal judges in November 2006, looks at what judges (especially judges who try cases in state courts) can do to strengthen liability as a check on the harms that these products inflict on consumers. It invites courts to help enforce an entitlement to effectiveness, just as they now help enforce an entitlement to safety.


June 13, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (1)

The $54 Million Pants Trial

By now, we've all heard about the DC Administrative law judge who is suing his dry cleaner for $54 million (originally $65 million) for losing a pair of pants.  The trial started yesterday.  Emil Steiner of the Washington Post is live-blogging the trial.  The trial resumes today with cross-examination of the plaintiff.  (Thanks to Overlawyered for the tip). 


June 13, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2007

Lawsuit Against AutoAdmit, Et Al.

Two Yale law students have sued administrators and posters at, a law school discussion board (that's describing it generously).  The WSJ Law Blog has a lengthy post, and Leiter has some thoughts too, noting that, among others, my IP prof Mark Lemley is representing the plaintiffs.  AutoAdmit has its usual thoughtful discussion, er, incoherent hateful rambling.


June 12, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

The Autism Trial

I haven't listened to the audio feed (I'm sick, and I blame the Mall of America, just for the record), but Respectful Insolence has a detailed post about the first day of the autism-vaccine trial taking place now.


June 12, 2007 in Products Liability | Permalink | Comments (1) | TrackBack (0)

September Punitive Damages Conference at Charleston

Please join me in Charleston this coming September for a symposium on punitive damages.  Last February, the United States Supreme Court added another layer to its punitive damages jurisprudence in Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).  This one-day symposium brings together distinguished scholars, judges, and practitioners to engage in a dialogue concerning the implications of Philip Morris, and more generally, the role of punitive damages in modern litigation. 

Symposium panelists include Elizabeth J. Cabraser of Lieff Cabraser, Robin Conrad of the U.S. Chamber of Commerce, Theodore Eisenberg of Cornell University Law School, Andrew L. Frey of Mayer Brown (and counsel for Philip Morris in the USSC), John Y. Gotanda of Villanova Law, Laura J. Hines of University of Kansas Law, Keith Hylton of Boston University School of Law, Robert S. Peck of the Center for Constitutional Litigation (and counsel for Mayola Williams in the USSC), Michael Rustad of Suffolk University Law School, Victor Schwartz of Shook Hardy, Tony Sebok (soon-to-be of Cardozo), Cathy Sharkey of Columbia Law, and Neil Vidmar of Duke Law. 

The full symposium brochure incuding registration details is available here.


June 12, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

Edwards on Tort Reform

In an interview on New Hampshire Public Radio, Democratic presidential candidate John Edwards commented on tort reform, and proposed that lawyers should be required to seek pre-filing approval of "medical cases" from a "board of experts" who have to certify that the case is "serious" and "meritorious."  The (short) audio file is available here.  (The question on tort reform is around the 2 minute mark). 


June 12, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, June 11, 2007

Autism & Prevalence

Thanks to Sheila for covering the blog while I was traveling!  In case it's of interest, our usual schedule will be Sheila covering Monday through Wednesday, with me doing the balance of the week, but we both can chime in when we notice something.  Like this:

Triggered by hearings in the Court of Federal Claims about the alleged-but-sketchy-at-best link between vaccines and autism, there's a useful Times op-ed today noting the numerous reasons that measured rates of autism might increase other than an actual increase in incidence.  The conclusion:

What does this all mean? First, we should be wary of “epidemic” claims and percentage increases based on administrative data. Second, we should not be surprised if school counts of children with autism continue increasing as they play catch-up to the number who truly have autism.

We want to be very clear: our results do not mean we have nothing to worry about. Scientific and clinical advances have improved our ability to identify autistic children and to differentiate their unique needs from those of children with other types of developmental disabilities. But schools and other social service systems are unable to keep pace with these changes or give the children the help they need.

Research to discover what causes autism, including possible environmental triggers, must be a top priority. However, autism is not purely a medical puzzle — as we invest in new ways of understanding autism, we have a corresponding responsibility to invest in the capacity of our schools, medical centers and social workers to provide up-to-date treatment for those with the condition and support services for their families. In the end, we should not have to deliver a verdict on whether there is an epidemic to fulfill these obligations.

In something that's very cool, the Court of Federal Claims is making audio available of the trial.

(My usual disclosure: I do a small amount of work for pharma companies.  I have not done anything in the vaccine arena, though my old firm does, I believe.)


June 11, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Teenager Dies From Sports Cream Overdose

As reported in Newsday, the New York medical examiner has announced that the death of a seventeen-year-old track star on Staten Island was caused by high levels of methyl salicylate - an anti-inflammatory found in sports creams such as Bengay and Icy Hot.   The medical examiner stated that the teen used the sports creams "to excess,"  and called the death "very unusual."


June 11, 2007 in Products Liability | Permalink | Comments (1) | TrackBack (0)

FDA Science Board Meeting June 14th

The FDA announced that its Science Board will hold a public meeting on June 14th.  The agenda includes an update on melamine (aka the pet food poison).   Other information released for the meeting is posted on the FDA's website.


June 11, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, June 10, 2007

PBS Publishes FDA Interviews

On its website, the NewsHour With Jim Lehrer has published a transcript of an interesting interview with William Hubbard, former associate commissioner of the FDA.  Hubbard discussed his view on imported food, ingredients, etc.   

The NewsHour also published a transcript of an interview with Dr. David Acheson, who just last month was appointed Assistant Commissioner for Food Protection at the FDA. Acheson also discussed the melamine issue as well as food safety generally. 


June 10, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)