Tuesday, April 13, 2010
The FDA has proposed amendments to its regulations on direct-to-consumer prescription drug advertising. Mass Tort Defense reports that:
The new proposal would require disclosure of the major side effects and contraindications of the drug in a clear, conspicuous, and neutral manner, regardless of the manner in which effectiveness information is presented in the advertisement.
Full story at Mass Tort Defense.
Monday, April 12, 2010
Let me begin by thanking those of you who responded to the March 30, 2010 posting of Torts colleague and my casebook co-author, Michael Rustad, in which he encouraged you to sign Professor Peter Joy’s letter to the Maryland legislature and others. This letter expressed deep concern over the General Assembly’s proposed budget amendments requiring a report on the cases, clients, and allocation of sources of funds in the University of Maryland Law School’s Environmental Law Clinic for the last two years and other information about clinics in public institutions. These proposed budget-linked amendments were in response to litigation undertaken by the Environmental Law Clinic against Perdue and farmers alleged to have violated Clean Water Act provisions. They were particularly troublesome because the reporting requests were linked to the release of funding for the University of Maryland Baltimore and the University System of Maryland.
This controversy ended in a compromise that removed the linkage of funds with any reporting and limited our obligation to report to the legislature only about publicly available information about cases (i.e., case names) and information about sources of funds that was not the subject of lawyer-client privilege. Moreover, the new reporting requirement was not attached to the budget but merely became part of the Conference report of the Conference Chair. The principal materials about the clinic and my formal statement about the controversy are available here.
We are pleased with this resolution and grateful for the support offered by law professors and leaders of legal education organizations (such as AALS and SALT), the president of the ABA, and other clinical and law faculty groups. Our faculty and students organized a teach-in and sent letters to the Chancellor of the System, the President of the University as well as the legislature and our alumni and other supporters also communicated with these decision makers in organized and individual responses. There were thoughtful articles generated by clinicians and other supporters that led to articles in the New York Times as well as local newspapers like the Baltimore Sun, the Washington Post, and other local and national media outlets like the Chronicle.
More than 450 law professors and over fifty deans signed Peter Joy’s letter and similar communications. While we are grateful for this outpouring and are mindful of the importance the impact it likely had on the legislators who began this inquiry, we view this local controversy against the background of a recent troublesome trend of legislative responses challenging the independence of clinic work and in light of the history of other similar legislative push back captured in a new book by Robert Kuehn who also offered us leadership and advice. I write this blog entry mindful of this real life example of political action that leaves me more skeptical than ever of local, legislatively derived resolution of extraordinarily complex social controversies that have substantial public interest.
I take this opportunity to share with you some thoughts about a newly released publication by one of University of Maryland’s legal scholars in Torts, Don Gifford. His book, Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription, (University of Michigan Press 2010), ISBN 978-0-472-11714-7, is also available as an e-book (ISBN 978-0-472-02186-4.) Don brings to this project his expertise as a scholar of mass products torts and his advocate’s work seeking stronger legislation to eliminate childhood lead poisoning, as chair of the Maryland Lead Poisoning Prevention Commission and as a consultant for the paint industry in a dozen or more states. Don Gifford reports that -- perhaps retrospectively -- among his memorable experiences as a legislative advocate occurred in 2003, when the legislation he proposed caught the interest of an impressive chair of an Illinois State Senate committee who a few years later would become President of the United States.
Professor Gifford has described his book as follows:
Suing the Tobacco and Lead Paint Industries explores parens patriae litigation by state governments against manufacturers of cigarettes, lead pigment, handguns and other products. Widespread public health problems caused by product exposure bedeviled courts for decades. Traditional tort doctrines, with their origins in nineteenth-century cases involving traumatic collision injuries, blocked the recovery of victims of tobacco-related illnesses and childhood lead poisoning. During the same period, regulatory authorities, influenced by business lobbyists, failed to protect the public. Public health advocates and state officials, therefore, greeted the arrival parens patriae litigation against product manufacturers in the 1990’s as an almost magical means of overcoming the legal obstacles that had prevented individuals from recovering for product-caused harms.
From the vantage point of fifteen years after the first parens patriae suits, Don Gifford offers a far different picture than seemed likely at the outset. Courts have been hostile to the expansion of traditional tort claims, at least for the present, foreclosing the opportunity for recovery for individual victims of product-related public health harms (and their families). Reviewing the settlement of state-generated suits against the tobacco industry, Professor Gifford finds they did little to address the underlying problem of harm-causing products; to the contrary, they served to promote economic benefits of the tobacco industry and secure their commercial longevity and strength. Moreover, the remedies sought in these settlements as well as in the judicial decrees developed in the first stages of lead litigation were not designed to provide substantial relief to the individual claimants injured by these harmful products.
Don Gifford finds troublesome the fact that parens patriae litigation relocates the power to craft meaningful relief for these public health problems engendered by products – which he characterizes as improper regulation of products. This relocation of power for Professor Gifford raises concerns about allocation of powers among coordinate branches and other constitutional concerns. He is also critical of some courts’ tendency to rely on common-law tort theories like public nuisance to tackle these product-caused public health problems. Ultimately, Don Gifford concludes that only the legislature can effectively and appropriately address product-caused public health problems.
Don’s well researched and thought-provoking effort to support this conclusion provides his audience with a readable and accessible understanding of the emergence of government-promoted tort litigation against product manufacturers. He gives us a framework for thinking about the earlier shortcomings of legislative as well as judicial efforts to address product-related public health harms as well as to ponder the appropriateness of attorneys general entering the fray despite the failure of other responses. He challenges us to come up with alternatives if we don’t agree with his conclusion.
While I might agree that stare attorney generals lack competence to engage in the kind of complex regulatory-like undertaking to address the public health impact of products, I would have liked Professor Gifford to further explore alternative options to provide redress for individual victims in the future: courts addressing private suits with new theories and comprehensive federal administrative regulation supported by federal legislation. Neither alternative is explored in this book in part because Don assumes that the lesson learned from the massive asbestos litigation experience was that courts are ill equipped to resolve these kinds of disputes. By implication he accedes to the view that that the common law’s traditional tort limitations related to causation should be preserved.
I believe that the future may support a different view of product-related harms to individual victims, challenging these assumptions. Gifford distinguishes the court-focused resolution of school desegregation and prisons from the public nuisance-based claims that state attorneys general raise, emphasizing the constitutional foundations supporting those earlier suits. But could there emerge a similar public interest- based theory of liability that similarly supports committing to judicial resolution such large-scale social problems implicating the public health? One could imagine for example a human rights framework for addressing such claims. Like Guido Calabresi and others of the seventies and eighties young scholars today are drawing upon human rights analysis to address fundamental inequities in the distribution of economic wealth and resources for basic human survival and respect. Our students who are exposed to the teachings and writing of these scholars may construct new human rights-based claims and provide convincing arguments for courts of the future, less inclined to be bound by what Gifford admits are nineteenth century limitations on addressing twenty-first century public health problems.
Is it more likely that we might actually see a future state or federal legislature prepared to address the complex problem of products affecting the public health, linking administrative relief for victims with appropriate regulation? Gifford reminds us that James A. Henderson earlier observed that it is commonly accepted “in a representative democracy macro-economic regulation is accomplished by elected officials and their lawful delegates.” (p 200). But the fact is that neither state nor federal legislatures seem inclined to address these problems in a broad way, responsive to the needs of numerous individual tort victims or the public interest in addressing massive and expensive health effects of products. Indeed as Gifford confirms, state legislative agendas have been dominated by business interests bent on limiting, not expanding, tort claims and relief, through caps to pain and suffering, limitations on actions and immunity. Congress has gutted the grounds for class actions and is more likely to limit or eliminate claims rather than expand liability; it seems more bent on conflating victim rights with frivolous suits.
The fact is that without a better educated and informed citizenry to challenge the position that commercially supported economic development depends on reducing consumer protection, there is little hope for legislative response to the public health issues related to products. The predominant interest in limiting rather than expanding tort actions will continue to prevail.
Don Gifford’s new book is bound to provoke arguments about these and other possibilities that lie ahead.
Phoebe A. Haddon
Dean and Professor of Law
University of Maryland School of Law
Thursday, April 8, 2010
Dean Haddon joined Maryland Law after more than 25 years as a distinguished faculty member at the Temple University Beasley School of Law. An accomplished scholar on constitutional law and tort law, Dean Haddon is the co-author of two casebooks in those fields (namely, Tort Law: Cases, Perspectives and Problems (Lexis Nexis ed., 2007)), and has written numerous scholarly articles on equal protection, jury participation, academic freedom, and diversity.
Dean Haddon has provided leadership to numerous organizations dedicated to improving American legal education. She serves on the Council of the American Bar Association Section on Legal Education and Admission to the Bar, the official accrediting body of American law schools. She has served as co-president of the board of governors and member of the executive committee of the Society of American Law Teachers, member of the executive committee of The Association of American Law Schools, and trustee of the Law School Admissions Council.
Actively engaged in supporting the work of the Pennsylvania bench and bar, Dean Haddon served as a member of the Gender Commission of the Third Circuit Task Force on Equal Treatment in the Courts and as a member of the Race Subcommittee of the Supreme Court of Pennsylvania's Committee on Racial and Gender Bias in the Justice System. She was a member of the City of Philadelphia Board of Ethics, and worked on bias and diversity-related issues in the Philadelphia Bar Association. Dean Haddon is also a member of the Board of Trustees of the Pennsylvania Bar Institute.
Dean Haddon earned an LLM from Yale Law School and a Juris Doctor, cum laude, from Duquesne University School of Law, where she was editor-in-chief of the Duquesne Law Review. She received a bachelor's degree from Smith College and served as Vice-Chair of the Smith College Board of Trustees until her appointment as dean. She served as a law clerk for The Hon. Joseph F. Weis, Jr., United States Court of Appeals for the Third Circuit, and practiced at Wilmer Cutler & Pickering in Washington, D.C., before joining the faculty at Temple law school in 1981, where she taught courses on constitutional law, torts, products liability, and race and ethnicity. While on leave from Temple, she served as Deputy Executive Director of the Redevelopment Authority of the City of Philadelphia and President of the Low-Income Housing Development Subsidiary and the Philadelphia Development Mortgage Assistance Corporation (1987-89).
Wednesday, April 7, 2010
Michelle Mello and Thomas Gallagher have published an interesting piece in the NEJM. They cover several models of disclosure and offer programs, discussing the advantages and disadvantages. In particular, they highlight the fact that such programs can be implemented without the political struggles accompanying legislation.
Tuesday, April 6, 2010
The summary provides:
This succinct e-book on tort reform reveals one of the most important recent movements in the civil justice field. It begins with a brief overview of central themes and issues and then presents a series of original essays and comments by preeminent scholars, lawyers, and leaders in tort reform. The essays are followed by fictional narratives written from the standpoint of plaintiffs, defendants, and policymakers; a simulation; and a selection of carefully edited articles, government documents, interest group position papers, and cases. Comments, notes, and questions are interspersed throughout the text.
The book includes essays by Victor Schwartz, Erwin Chemerinsky, Pamela Gilbert, Neil Vidmar, Mike Rustad, Stephen Sugarman, Aaron Twerski, Martha Chamallas, Jeff O'Connell and TortsProf's own Chris Robinette, among others.
The Food & Drug Law Institute has published its "Top 20 Food and Drug Cases, 2009 & Cases to Watch, 2010." A preview of the book is available here (pdf).
My colleague Bill Janssen authored the book's first chapter; he discusses Ashcroft v. Iqbal and analyzes its implications in drug and device cases.
Monday, April 5, 2010
Should Tort Law Be Tougher on Lawyers?
There are plenty of special tort rules that have developed when lawyers are sued in their professional capacity. As my colleague Ben Barton has observed, most of these special rules treat lawyers more favorably than similarly-situated nonlawyers. Examples include the courts’ refusal to recognize the “loss of chance” theory in legal malpractice cases and the recognition of the absolute litigator’s privilege, which some courts have extended beyond the defamation context to shield lawyers from liability under theories ranging from intentional infliction of emotional distress to fraud.
That’s why about a year ago I was surprised to learn about a special form of civil liability for lawyers that is decidedly lawyer unfriendly. In Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009), the
Potentially, that’s a pretty significant decision for lawyers, at least insofar as it subjects lawyers to civil liability for which nonlawyers cannot be held liable. Had the Amalfitano plaintiffs sued the defendant-lawyer’s client on a fraud theory, they probably would have lost since the attempted fraud involved attempting to mislead the court; thus, the attempted fraud was one upon the court, rather than the plaintiffs. Moreover, the plaintiffs probably would have lost on a malicious prosecution or wrongful initiation of civil proceedings claims because
The question I’ve been wrestling with since the decision is whether it’s such a good idea to lower the standard for lawyer liability in cases of deceit occurring while a lawyer is representing a client. On the one hand, much of the tort law governing lawyers is based on the idea that we do not want to deter lawyers’ willingness to engage in diligent representation of their clients for fear of facing civil liability. On the other hand, there is the reality that lawyers have special obligations when it comes to the administration of justice as officers of the court. Ultimately, it strikes me as being a fundamentally different thing for a lawyer – while wearing his or her lawyer hat – to knowingly lie to the court or to intentionally destroy evidence than it is for a nonlawyer to do the same.
But is it different enough to justify imposing liability on the lawyer when the jurisdiction’s tort rules would not allow for liability in the case of a nonlawyer? I tend to think that an appropriate analogy here is to the employment law tort of wrongful or retaliatory discharge in violation of public policy. Why do we provide a remedy for an employee who has been fired for applying for workers compensation benefits or serving on a jury? Sure it’s because we think it’s unfair for the employee to be forced to choose between his or her job and taking advantage of a statutory entitlement or fulfilling a public obligation. But it’s also at least as much because we want to preserve the integrity of the systems and institutions that are adversely affected by the employer’s action. Similarly, while I feel bad for the party that has incurred added expense or heartache as a result of the fact that the other side has lied to the party or the court during a legal proceeding, I’m at least equally concerned about the damage to the integrity of the legal process. I’m less concerned when it’s a party that’s doing the lying because the legal system’s structure is based in part on the recognition that parties may, in fact, lie. We expect it to happen and have measures in place to guard against it. But we shouldn’t have to guard against the lawyers to the proceeding engaging in deceit, particularly where the courts and the legal profession have established a monopoly on the practice of law and have certified the fitness of those who practice it. The courts and the legal profession have, in effect, made an assurance about the integrity of the process. Permitting lawyers to damage that integrity creates the kind of public or third-party harm that, to my mind, justifies a remedy.
Of course, that conclusion still leaves open a host of other issues, including whether it also makes sense to criminalize attorney deceit (as the majority of these statutes do) and how to define the concept of “deceit” as applied to attorneys. But in light of the damage that attorney deceit occurring during the course of a legal proceeding causes to the other party, the integrity of the legal process, and the reputation of the legal profession, I think that it generally makes sense for tort law to be tougher on attorney deceit than other types of deceit.
--Alex B. Long
University of Tennessee College of Law
Saturday, April 3, 2010
John Goldberg (Harvard) & Benjamin Zipursky (Fordham) have posted to SSRN The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell. The abstract provides:
In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, “Uneasy,” comes nowhere near to demonstrating what it purports to demonstrate. We also identify various “benefits” provided by tort liability for product-related injuries that Polinsky and Shavell entirely fail to consider. In fact, the case for some form of products liability - whether fault-based or defect-based - is really quite easy.
Friday, April 2, 2010
Happy Passover! Happy Easter! In torts...
Reform, Legislation, Policy
- The health care bill's medical liability language. (Wood/Point of Law)
- Two by Cathy Sharkey: On Punies, On Preemption.
- Man sues neighbor over alleged deleterious effects of her use of electronic devices. (ABA Journal)
- Palestinian Authority loses another round in NY Appellate Division over $116M terror verdict. (Turkewitz)
- NY: $50,000 pain-and-suffering verdict for 90 days of back pain upheld on appeal. (Hochfelder)
Trials, Settlements and Other Ends
- OR: At least $1.3M dram shop settlement in the deaths of two women (KATU.com)
- NJ: AstraZeneca wins first Seroquel case. (Abnormal Use, via Olson/Point of Law)
- Panel on "Pluralism in Tort Law and Litigation" at the 13th Annual Conference of the Association for the Study of Law, Culture, and the Humanities. (Stier/Mass Tort Profs)
Thursday, April 1, 2010
Alex Long is Associate Professor of Law at the University of Tennessee College of Law. Professor Long moved to UT in 2007 after teaching at the Oklahoma City University School of Law for four years. He began his teaching career at the West Virginia University College of Law, where he taught Contracts, Disability Law, and Legal Research & Writing. Before entering academia, Professor Long was an associate in the labor group of the Clarksburg, West Virginia office of Steptoe & Johnson.
Professor Long teaches and writes in the areas of Torts, Professional Responsibility, Employment Law, and Disability Law. His scholarship in this area has been published in numerous journals, including the Minnesota Law Review, Washington Law Review, Washington & Lee Law Review, and the Georgetown Journal of Legal Ethics.
Professor Long received his law degree from the College of William & Mary in Williamsburg, Virginia, where he was Topics & Research Editor for the William & Mary Law Review. He received the W. Allen Separk Faculty Scholarship Award in 2007 for his article in the Florida Law Review.