Our source describes it as “quite a slapdown” by the judge, good news for bloggers who may have been feeling chilled by the now-celebrated subpoena aimed by Virginia vaccine attorney Clifford Shoemaker at investigative blogger Kathleen Seidel, who had criticized him. (Neurodiversity, Jun. 23; ruling in PDF at Public Citizen, which defended Seidel; Orac, Citizen Media Law Project, Bug Girl).

I’m proud to note that I helped break the story in April and have posted regular updates since then.

Not directly related, but also of note from Kathleen Seidel’s blog: you’re not going to believe what some attorneys consider a source of credible evidence when pressing claims in the government’s Vaccine Injury Compensation Program (Jun. 13).

P.S. Comments take issue with its being “quite a slapdown”, and suggest that it was more like a slap on the wrist.

Mark Lanier and other plaintiffs lawyers are giving a series of interviews where they complain that the Ernst v. Merck decision (discussed yesterday) is “judicial activism that reinterprets the evidence.” (E.g., in Texas Lawyer.) This is nonsense. Ernst follows well-stated precedent. Indeed, I predicted precisely this result and precisely the case the appellate court would use to strike down the decision the week of the jury’s verdict.

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*Blogroll, cont’d*

Other sites by our authors: Point of Law (Ted Frank, Walter Olson and others) / Ted Frank’s AEI Legal Center / Walter Olson home page / Our Facebook group

Law:

BlawgRev / Brennan Center / Briefcase (Ohio) / CalBizLit / ConsLw&Pol / Day / Decs & Exs / EvilHRLady / Genova / Goldman / ILR / LawBeat (Obbie) / Legal Ethics Forum / LexMonitor / Lexis Nexis Torts / Likel’d of Succ’s / MassTortLit / Miller, Maryland Injury / Nordberg / O’Keefe / OnPointNews / Perlmutter Schuelke / Prawfs / Scruggs scandal in Mississippi: Folo, YallPolitics as well as Rossmiller / Sui Generis (NY) / TortDeform / WorkplaceProf

And more law: AdamSmithEsq / ACSBlog / AJP / AGWatch / ArmsLaw / Bay / BLT / Bluestone / Cal Wage & Hr / Comm for Just / Complex Lit / Concur Op / Conglom / Counterfeit Chic / EmpirLS / Ernie the Atty / Friable Thts / Greedy TL / Justia / KipEsq / Kranenburg / LawSites / LegalJuice / Legal Rdr / Legal Scholarship / Low’g the Bar / NAM / Ninomania / Ohio Employment / Opinio Juris / Petit / Pop Tort / Proof & Hrsy / QuizLaw / Sports Law / StonePosts / TrollTracker (now underground) / WAC?

Med: Cut to Cure / Dr. Wes / GruntDoc / HIPAA blog / MedProgToday / MedPundit (RIP) / MedRants / Orac / Pipeline / RangelMD / Seidel / SymTym / Throckmorton

General interest:

Beam / Discr’ns / Empire Center / Gawker / Gordon / Jay P. Greene / Haspel / Housing Bubble / IRB / Dan Kennedy / Manh Inst / David Nieporent’s Jumping to Conclusions and Likelihood of Success / MindingCampus / NYObserver / NYT Board, Freak’cs, Lede, Opin’tor, Tierney / Pratie Place / Rauch / SalonBlogRep / Siegel on tobacco / Truth on the Mkt / Tushnet

Right:

Betsy’s / Bookwm Room / City Jrnal / Contentions / Flash Report (Calif.) / Kopel / Lileks / McLaughlin / Marria Deb / Massie / Moldbug / Patterico / PowerLine / RightCoast / RightRbw / Steyn / Zincavage

Left:

Bogdanski / Drum / Edroso / Effect Measure / Lambert / LG&M / Mencimer / Mother Jones / Pump Handle / ReformNY / SadlyNo / Tobias / Wolcott

Libertarian:

Antipl’r / Brayton / Cafe Hayek / Cato-at-Lib’y / Chapman / Henley / Palmer / Pos’ve Lib / Sanchez / Stossel / Vice Sq / Wilk’n / Young

Odd:

Fark / News of the Weird / Our 404 / Lawyer jokes (About.com) / Spurious “Stella Awards”

Science/skepticism:

Hoax / Snopes / LarkFarm / Myers / Unoff Dawkins / Free Inq / Rowe / Lehmann / Fumento / Honeyguide / Quackwatch / Skept Inqr / Skeptic.com

This site’s reprinted articles library, with articles by authors Michael Fumento, Peter Huber, Walter Olson, and Jonathan Rauch.

If you’re not keeping up with our sister site, you’re missing out on stories about how expert evidence standards help plaintiffs too (and more); animal rights more voguish at many law schools than those dull old humans; Ohio Supreme Court commended; implications of recent plunge in carpal tunnel cases; 93% enrollment in Vioxx settlement; attorney faces criminal charges after his clients quit their nursing jobs; extensive coverage of Gov. Spitzer’s downfall; more trouble for Florida lawyer accused of bribing defendant’s adjuster to obtain settlement target numbers; ballot measure would abolish employment at will in Colorado; judicial seminars by the securities class action bar; and much more.

Welcome BBC listeners; more on the blind shoppers’ suit against Target here. Most of our material on this site originates in the U.S. but we do have a page of British items, and here are some more:

• Sheffield-based clown “Barney Baloney” finds it harder to amuse children now that liability insurers have vetoed his bubble machine and supermarkets bar him from using allergenic latex balloons [Daily Mail, Telegraph, AFP/Breibart, Lowering the Bar; video at Breitbart.tv]


• Good opinion column prompted by above: “the fear of legal action is not a fantasy of liberal killjoys … what has really happened is that a small minority of the population have become accident-intolerant and are prepared to enforce their utopia through the courts.” [Mark Lawson, Guardian]


• Furor over official ruling that man who killed London headmaster can’t be deported back to Italy without violating his human rights “as he no longer has strong family ties there” [Telegraph]


• Scandals about groundless expert testimony in infant death prosecutions lead to calls for importation of Daubert rules, maybe even national institute of forensic science [Times Online]


• Labour government will propose bill to halt prosecution of homeowners who defend themselves with “proportional” force against burglars, home invaders [Telegraph] while Tories pledge to end “compensation culture” in school governance [likewise]


• State of UK law blogs, and link to a list of them [Nick Holmes via Kevin O'Keefe]


• Please, please don’t: leading consumer group calls for adoption of U.S.-style class action system in which lawyers can represent everyone who doesn’t affirmatively opt out [Times Online]

• New York Times hoisted by its own petard. [Point of Law]
• Insult to injury: spammer sues spam victim. Earlier: Nov. 8; Jan. 28, 2005; Dec. 8, 2003. [Time; Concurring Opinions]
• Securities class actions down: what does it mean? [Point of Law]
• When should Daubert motions be resolved? [Hutchinson; Nordberg]
• Nardelli’s $210 million severance. [Point of Law; Contrarian's Edge; Ideoblog; Sloan @ WaPo]
• “We don’t think you should get [school] credit for just being alive.” [New York Sun]
• Gerald Ford and impeachment. [SCOTUSBlog; NRO; Point of Law]
• Therapy animals redux. [New Haven Register (dog); NBS (chicken) (via ATL)]

Over at Point of Law, there’s a new Featured Discussion on medical malpractice: our own Ted Frank expands on his theory that it might be a good idea for doctors to benefit from something akin to the “business judgment rule”, by which courts refrain from second-guessing many decisions of corporate directors and officers in shareholder litigation. Ably representing the opposite point of view is Peter Nordberg, whose Daubert on the Web and Blog 702 cover scientific evidence issues in the courts with unrivaled depth.

Peter Nordberg points us to an unpublished Fourth Circuit opinion upholding an expert’s testimony as to damages. Mary Lafontaine Parmenter’s investment advisor moved her $730,000 account into stock mutual funds in late 1999, increasing its value to $1.1 million at the height of the stock market bubble in 2000 (even as she was withdrawing $6000/month), whereupon it declined in value to $342 thousand. The expert argued that the most serious breach of the investment advisor’s duties came when he failed to consolidate the gains, and that losses should be counted from the peak of the account’s value. I don’t doubt that the investment advisor could have been found to be inappropriately aggressively investing Parmenter’s money; but if he was doing so inappropriately in April 2000, he was doing so inappropriately in 1999, when he made her half a million dollars; there’s something unseemly about the calculation of loss. Hindsight is nice: if the expert, F. John Hermann, could accurately forecast account value peaks, he’d be a billionaire rather than an expert-for-hire.

The opinion also reveals that the plaintiff’s attorney successfully tricked the defendant into conceding that an accurate SEC disclosure form that he had filed was inaccurate; the appeals court offered no relief because of lack of evidence that the tactic was intentional.

In the Manhattan Institute’s City Journal, Philip K. Howard, president of Common Good and a longtime friend of this site, contributes an essay on fixing our litigation system. Among his topics: the need for a robust principle of assumption of risk; lessons from the U.K., where a “compensation culture” has spread despite a set of legal procedures that is the dream of reformers on this side of the Atlantic; the role of summary judgment and Daubert review; and the role of predictable law in maintaining the principle of the rule of law (Spring).

On June 1, 1998, Clark Seeley left the house while leaving Pop-Tarts heating in a toaster. Poor decision: there was a fire in the unattended toaster, and his house was damaged. Seeley blames not himself, but the toaster manufacturer. (The press doesn’t mention it, but Seeley’s insurance company initiated the suit before apparently settling.) The story is in the news now because (paging Peter Nordberg) the judge (probably correctly) held Wednesday that an expert’s study that a frosted-sugar pastry could conceivably start a toaster fire was admissible because it was falsifiable. The real question is why a court has let this case get to the stage where parties need to hire lawyers to supervise and submit reports from frosted-sugar pastry experts. (Michael Virtanen, “Judge Allows Expert on Pop-Tarts To Testify in Flaming Pastry Lawsuit”, AP/NY Sun, Dec. 17; Liberty Mutual Ins. v. Hamilton-Beach, 1:99-cv-01162-LEK-DRH (N.D.N.Y.)) The maker of Pop-Tarts was not sued, perhaps because the box warns consumers not to leave pastries unattended in the toaster. (Sean Carter, “Pop-torts”, November 2, 2001). Previous suit: Jul. 30, 2001. Update: New York Lawyer weighs in. (John Caher, “Engineer Ruled Expert Witness in Flaming Pop-Tart Case”, Dec. 21).

By reader acclaim, from Oregon: “A Portland lawyer says suffering by African Americans at the hands of slave owners is to blame in the death of a 2-year-old Beaverton boy. Randall Vogt is offering the untested theory, called post traumatic slave syndrome, in his defense of Isaac Cortez Bynum, who is charged with murder by abuse in the June 30 death of his son, Ryshawn Lamar Bynum. Vogt says he will argue — ‘in a general way’ — that masters beat slaves, so Bynum was justified in beating his son.” However, attorney Vogt may find it a challenge to secure the admissibility of the slavery-trauma theory, which has been accepted by neither the courts nor the psychiatric profession. Washington County Circuit Judge Nancy W. Campbell threw out pretrial testimony by Joy DeGruy-Leary, an assistant professor in the Portland State University Graduate School of Social Work, to the effect that the brutality of slavery, together with continuing racism, oppression and societal inequality, helps explain self-destructive, violent or aggressive behavior in African-Americans. Judge Campbell said she would reconsider allowing the defense in Bynum’s September trial, but only “if his lawyer can show the slave theory is an accepted mental disorder with a valid scientific basis and specifically applies to this case.” (Holly Danks, “Judge rejects slave trauma as defense for killing”, The Oregonian, May 31). According to David Bernstein, writing two years ago, the standards for admission of expert testimony in Oregon are not as tight as might be wished (”Disinterested in Daubert: State Courts Lag Behind In Opposing ‘Junk’ Science”, Washington Legal Foundation (PDF) Legal Opinion Letter, Jun. 21, 2002)(search on “Oregon” or scroll to near end of piece).

Good New York Times page-one article investigating the Senator’s legal work, and in particular his big-ticket lawsuits over cerebral palsy. (Adam Liptak and Michael Moss, Jan. 31). See our earlier coverage Jan. 20 and Jan. 26. Alex Tabarrok, Sydney Smith, Charlotte Hays and Wayne Eastman comment.

Meanwhile, a theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of “zealous advocacy”. (It should be stressed that Edwards strongly disputes the idea that his cases were in any way scientifically dubious.) We ourselves aren’t buying this line of reasoning, but it has some articulate advocates, including Peter Nordberg (who also defends Edwards here, while acknowledging that some details in the new Times piece “may supply grist for Edwards’ critics”), Franco Castalone, and David Bernstein. For our views of what constitutes proper “zeal” on lawyers’ part, see Jul. 17.

Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (”Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)

Medpundit “Sydney Smith” writes about the anthrax vaccine and the decision of a judge to enjoin the military’s mandatory vaccination program. The article has links to other vaccination solutions stalled by lawyers. (”Trial Lawyers vs. the Armed Forces”, TechCentralStation, Jan. 2).

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Eugene Volokh has extensive commentary in several posts on the recent Ninth Circuit 2-1 decision holding gun manufacturers potentially liable because a mentally ill bigot, Buford Furrow, went on a shooting rampage. (David Kravets, AP, Nov. 20) (via Bashman). Furrow is not one of the thirteen defendants.

Trivia not noted elsewhere: the two judges in the majority opinion, Richard Paez (see Kausfiles, Sep. 17) and Sidney Thomas, had some notoriety a couple of months ago when they were two thirds of a panel that made nationwide headlines by trying to enjoin the California recall election before an en banc panel of the Ninth Circuit overturned them in an 11-0 decision. Among the problems with this decision: it forces California standards upon defendants in other states in violation of the Commerce Clause; and, like the punchcard case, the judges impose a new judicially-created rule on their public-policy say-so without any thought as to real-world consequences, which Professor Volokh effectively elucidates. The lead attorney for the plaintiffs, Peter Nordberg (who is better known to readers of this site for his Blog 702, see July 5), is quoted by the AP as saying “I believe this is the first federal court of appeals decision to sustain a claim like this one.” Does it make me an old fogey already because I remember when calling a position “unprecedented” was an argument against its judicial adoption? (UPDATE: Peter Nordberg responds.)(& welcome Kausfiles readers)

UPDATE: As part of a lengthy criticism of the opinion, Clayton Cramer notes the absurdity of the following allegation: “Plaintiffs also allege that the defendants intentionally produced more firearms than the legitimate market demands with the intent of marketing their firearms to illegal purchasers who buy guns on the secondary market.” (Nov. 20) (via Volokh). That same logic of liability can, of course, be used to hit the manufacturers of any product that can be misused: alcohol, cigarettes, slot machines or casinos (the market of “legitimate gamblers” as opposed to addicts), prescription medications, sugar, SUVs, telephones. Congress is considering action to undo the decision. (Jason Hoppin, “9th Circuit Takes Aim at Gun Companies”, The Recorder, Nov. 21).

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Peter Nordberg notes that on appeal, experts in criminal cases are much more likely to survive Daubert challenges than experts in civil cases. (Aug. 30). Why the discrepancy?

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Peter Nordberg and David Bernstein debate the study on Daubert discussed in this post. If I can take up Mr. Nordberg’s challenge to identify problems with the SKAPP report, I’ll just identify a handful that immediately came to mind as I read it. (This is long, so I’ve moved it off the main page. Click the link below.)

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It’s the tenth anniversary (plus four days) of the Daubert v. Merrill Dow Pharmaceuticals opinion that limited in federal trials the use of expert testimony that is not scientifically reliable. Peter Nordberg’s Daubert on the Web is one of the more comprehensive sites on the web on any subject; he has started a blog that promises to be fascinating.

Along with recent Supreme Court jurisprudence on punitive damages in cases such as BMW v. Gore and the expansion of interlocutory review of class action certification, Daubert has been one of the few brakes on the expansion of tort liability in the last ten years. As my former Brandeis colleague and GMU Law professor David Bernstein points out, however, Daubert did not stop the use of junk science to extract billions from breast implant manufacturers, and now some of that money is being used to fund efforts to weaken Daubert.