• Raft-flip mishap at Riviera Beach, Fla. water park: family’s collective weight far exceeded posted limit on warning signs, they’re mulling suit [Palm Beach Post]
• New Rigsby/Katrina depositions include sensational new allegations of Scruggs misconduct as well as touches of pathos [Point of Law]
• “Al Gore Places Infant Son In Rocket To Escape Dying Planet” [The Onion]
• So much coverage of Hasbro vs. Scrabulous but so little solid reportage by which readers might judge strength of copyright infringement claims [Obbie]
• City of Seattle spokesman says police actions in shootout with gunman might have “saved countless other lives”, which hasn’t saved city from being sued by injured bystander [Seattle Times]
• First the vaccine-autism scare, now this? “Mercury militia” crows after FDA agrees to move forward with statement on possible risks of dental amalgam, but maybe there’s not a whole lot for them to chew on [Harriet Hall, Science-Based Medicine]
• Of lurid allegations in paralegal Angela Robinson’s suit against Texas plaintiff potentate Richard Laminack, the most printable are the ones about chiseling fen-phen clients and not paying overtime [American Lawyer; Laminack response]
• U.K. attorney suing former bosses for £19 million: that wasn’t me at the interview, that was my alternative personality [Times Online]
• Allegation: Foxwoods croupier thought he could mutter lewd comments in Spanish about Anglo female patrons, but guess what, one was entirely fluent [NY Post]
• “Richard Branson claims to own all uses of ‘Virgin’” [three years ago on Overlawyered]

Readers know I’m sympathetic to the idea of patent reform, but I have to agree with Derek Lowe’s skepticism as he tears a hole in the Michael Heller story told to the WSJ Law Blog about an alleged Alzheimer’s drug that will “earn billions” but can’t be tested because of patent gridlock.  A must read as he eviscerates the law and science behind that statement, and read the follow-up as well.  As Lowe points out,

the safe harbor provisions of the 1984 Hatch-Waxman Act, as reaffirmed in the 2005 Merck v. Integra decision by the Supreme Court [protects] from infringement [claims] in the use of a patented compound for purposes of submitting regulatory filings. And the language of the ruling makes it look like it’s intended to cover all sorts of patented technologies as well.

• Beck and Herrmann fisk a NEJM anti-preemption editorial. [Beck/Herrmann; NEJM]
• Lessons of the Grasso case. [Hodak]
• You think BigLaw has it bad? Plaintiffs’ attorney who invented the benefit-of-the-bargain theory for pharmaceutical class actions where no one has suffered any cognizable injury, has made his firm tens of millions, but still hasn’t made partner. “Zigler said he never meets most of the people he represents in these high-profile cases.” [St.L. Post-Dispatch; related analysis from Beck/Herrmann]
• Speaking of harmless lawsuits, “an atrocity in Arkansas,” as Arkansas Supreme Court ignores basic principles of due process and civil procedure to certify an extortionate pre-CAFA class action from MIller County. [Hmm, that's Beck/Herrmann again; General Motors v. Bryant; related from Greve]
• Speedo competitor: unfair competition to say your innovative swimsuit has an advantage just because 38 out of the last 42 world records (as of June 30) were broken in the suit. [Am Law Daily]
• Background on bogus shower curtain scare story (earlier). [NYT; related AEI event]
• EMTALA-orama: don’t discuss payment in the emergency room if you don’t want to get sued. [ER Stories]

I’m quoted by Amanda Erickson in today’s Chicago Tribune:

Continue Reading »

In autos; FDA; media bias; politics; preemption; product liability; Public Citizen; publicity; rollover litigation; Ted Frank

One of the justifications for FDA preemption is the fear of overwarning; warning overload can be counterproductive, causing people to ignore important warnings. Thus, failure-to-warn litigation impedes safety. See “Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products,” 71 Fed. Reg. 3922 (Jan. 24, 2006); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 764 (Ky. 2004).

Further evidence comes from a CNNMoney.com report (Aaron Smith, “Consumers tune out FDA warnings”, Feb. 25) suggesting that the FDA’s post-Vioxx caution has already caused the agency to be at the point of diminishing returns, as it is averaging 50% more safety alerts a year for 2005-2007 than it did in 2004, the year Vioxx was withdrawn from the market.

I discussed overwarning in other contexts on Overlawyered in Sep. 2006.