Overlawyered » pleading

Medical roundup

Walter Olson — Mon, 21 May 2012 04:03:22 +0000

Government’s hospital care guidelines may be fueling dangerous overuse of antibiotics [White Coat] FDA says fewer drugs are in shortage [Reuters, earlier here, etc.]
“Post-tort-reform Texas doctor supply” [Ted Frank/PoL and commenters] “Change in Procedures Lets Medical Malpractice [Insurance] Industry Thrive” [PC 360]
Forcing companies to make politicized disclosures to customers implicates First Amendment [Hans Bader on HHS "must credit ObamaCare" reg]
Iqbal and Twombly SCOTUS decisions on pleading have helped protect pharmaceutical defendants from flimsily based suits [James Beck, who has changed law firms to Reed Smith]
How accurate is hospital data coding? Ask thousands of pregnant British men [Nigel Hawkes via Flowing Data]
Class-action-fed boom in Medicaid dentistry + “let’s put docs in schools” idea = scope for horrific abuse, no matter how it’s financed [Bloomberg via Jesse Walker]
Suits blaming obstetricians for cerebral palsy rack up $78 million win in Philadelphia, $74 million in California [Legal Intelligencer, Cal Coast News]
Ninth Circuit: on reflection, let’s not seize control of VA mental health programs [AP, earlier here, etc.]

Tags: hospitals, medical malpractice, medical malpractice insurance, Ninth Circuit, pharmaceuticals, pleading, psychiatry, Texas

Medical roundup is a post from Overlawyered - Chronicling the high cost of our legal system

March 27 roundup

Walter Olson — Tue, 27 Mar 2012 04:04:06 +0000

NYC: “Lawsuit Blames Apple’s Glass Doors for Plaintiff’s Broken Nose” [Lowering the Bar, CBS New York]
Some who pushed enhanced punishment for Dharun Ravi may now be doubting they really want it [Scott Greenfield, earlier here, etc.]
NYT editorial on FMLA state immunity is as bad as anyone had a right to expect [Whelan]
“Pleading, Discovery, and the Federal Rules: Exploring the Foundations of Modern Procedure” [Martin Redish, FedSoc "Engage"] Summary of important ’09 Redish book Wholesale Justice calling into question constitutionality of class actions [Trask]
Would trial-by-DVD be so very wrong? [James Grimmelmann, Prawfs]
Contested memorabilia: lawsuits filed over estate of gay rights pioneer Franklin Kameny [MetroWeekly]
Feds’ “distracted driving” guidance could impair usefulness of car navigation systems [Cunningham/CNet, earlier]

Tags: Apple, autos, discovery, juries, pleading

March 27 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

January 9 roundup

Walter Olson — Mon, 09 Jan 2012 05:12:45 +0000

Illinois now requires showing of ID, signing of log to buy drain cleaner. So long as you’re not trying to vote! [Consumerist via @amyalkon]
Tribute to no-longer-anonymous Ken White of Popehat and his work defending bloggers from legal threats [Scott Greenfield; earlier; Ken's defense in Maryland of blogger Aaron Worthing; new case of science blogger in Texas]
Politicos mobilize against risk that Wal-Mart will bring fresh produce choices to Harlem [Greg Beato] India frets about whether to allow chain stores, recapitulating a debate U.S. once went through [Tabarrok, MR]
Colorado legislators honored at a luncheon where I spoke [CCJL]
HHS launches initiative to audit health providers for compliance with HIPAA data privacy law, and many are unprepared [American Medical News, Dana Thrasher, Dom Nicastro/HealthLeaders Media]
New scholarship on effects of Twombly/Iqbal [Drug and Device Law series first, second, third, CL&P]
Congratulations to the outstanding Abnormal Use for winning the ABA’s “Blawg 100” vote for best torts blog; we feel pretty good about placing third without mounting a campaign. While exploring that site, don’t miss its stellar coverage of the tendentious documentary “Hot Coffee”.

Tags: bloggers and the law, Colorado, HIPAA, hot coffee, Illinois, India, legal blogs, pleading, Wal-Mart

January 9 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

October 13 roundup

Walter Olson — Thu, 13 Oct 2011 05:36:49 +0000

Behind the antitrust assault on Google [Jerry Brito, Josh Wright, more]
Rapid rise of lawsuit lenders [WSJ] And a Searle Civil Justice Institute conference on third party financing of litigation;
More law firms muscle into class action against e-book publishers [PaidContent] Fifth Circuit questions cy pres [Trask] And a new edition of the Federalist Society’s Class Action Watch is out;
When the house painters announce they’re not leaving: “Britain plans to tighten anti-squatter laws” [NYT]
“Courts Call Out Copyright Trolls’ Coercive Business Model, Threaten Sanctions” [EFF] “Righthaven’s Copyright Trolling is a Bankrupt Idea” [Cit Media Law] More: Vegas Inc.
“Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery” [Andrew Blair-Stanek via Volokh, Frank] “Four more reasons to love TwIqbal” [Beck] “O’Scannlain says 9th Circ has adopted ‘Iqbal lite’ pleading standard, ‘Same insufficient complaints, fewer dismissals!’” [@ScottKGraham on dissent in Starr v. County of Los Angeles, PDF]
Florida farms sell raw milk as (wink) “pet food” [Sun-Sentinel]

Tags: antitrust, class actions, cy pres, food safety, Google, litigation finance, pleading, RightHaven

October 13 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“After TwIqbal, defendants don’t have to take scattershot pleading lying down”

Walter Olson — Tue, 12 Jul 2011 14:29:38 +0000

The Supreme Court’s admirable Twombly and Iqbal precedents give a federal district court the means to turn back a shotgun lawsuit against a horde of undifferentiated defendants [McFarland v. APP Pharmaceuticals LLC, slip op., 2011 WL 2413797 (W.D. Wash. June 13, 2011) via Beck, Drug and Device Law]. Quoting the court:

[A]lleging that 93 defendants all manufactured, distributed, and/or sold all of the products that caused all of plaintiff’s injuries is not plausible. In addition, plaintiff’s allegations are internally inconsistent. The complaint alleges that “each” of the defendants manufactured the heparin that caused her injuries, but also alleges that each of the 93 defendants “separately manufactured, marketed, distributed, wholesaled, and/or sold” heparin. The inconsistencies between those allegations, which are not pled in the alternative, further highlight the implausibility of plaintiff’s allegations.

James Beck writes, “Basically, the plaintiffs in McFarland didn’t want to do even the most basic spadework of identifying the correct defendants before bringing suit, so they threw in the kitchen sink in the hope that the defendants would end up having to spend the time and effort to figure things out.” After Twombly and Iqbal, that’s become a less effective legal tactic — one of many reasons to resist the Litigation Lobby drive to get Congress to overturn the two pleading decisions.

Tags: pharmaceuticals, pleading, shotgun defendant selection

“After TwIqbal, defendants don’t have to take scattershot pleading lying down” is a post from Overlawyered - Chronicling the high cost of our legal system

April 19 roundup

Walter Olson — Tue, 19 Apr 2011 11:28:31 +0000

Environmental milestone? “Bolivia is set to pass the world’s first laws granting all nature equal rights to humans.” [JoNova via Coyote]
Add another to the list of judges who file suits over critical discussion of their rulings, in this case by the losing party, a newspaper [ABA Journal]
“Obama on presidential signing statements then … and now” [Bainbridge, Outside the Beltway]
“The never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance.” [Joseph Hoffmann and Nancy King, NYT, via Lat, Frank] A different view: Scott Greenfield, The Briefcase.
Global warming suits “a misuse of the judiciary branch” [Laurence Tribe, Boston Globe via WLF]
Competing for the HuffPo reader? On link between chemical exposures and cancer, Salon.com perpetrates “utter nonsense” [Orac, Respectful Insolence]
Iqbal/Twombly: “Reports of pleading’s demise may have been exaggerated” [Wasserman, Prawfs]

Tags: Barack Obama, environment, judges, libel slander and defamation, pleading

April 19 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Federalist Society videos online

Walter Olson — Fri, 10 Dec 2010 14:55:43 +0000

The Federalist Society has posted numerous videos from its recent National Lawyers’ Convention, including sessions on the aggressive regulatory stance of today’s Environmental Protection Agency, the constitutionality of Obamacare, anonymity and the First Amendment in media and campaign-regulation law, NYU’s Richard Epstein debating Yale’s Bill Eskridge on the court battle over California’s Prop 8, recusal and campaign rules for judges, Dodd-Frank, and the Christian Legal Society v. Martinez case on accreditation of student groups, among other topics. And civil procedure/Iqbal-Twombly buffs may be interested in a luncheon panel held just yesterday in D.C. (I was in the audience) in which four law professors (Don Elliott of Yale, Martin Redish and Ronald Allen of Northwestern, and Rick Esenberg of Marquette) outlined ideas for reforming the Federal Rules of Civil Procedure to reduce discovery costs and improve screening of cases in the earliest stages of filing.

The video above is of the Society’s 10th annual Barbara Olson Memorial Lecture, in which Second Circuit Chief Judge Dennis Jacobs provocatively criticizes legal academia and other precincts of influential legal thinking for misunderstanding the role of the military and its relation to the law.

Tags: campaign regulation, discovery, Environmental Protection Agency, Federalist Society, law schools, military, pleading, recusals, same-sex marriage

Federalist Society videos online is a post from Overlawyered - Chronicling the high cost of our legal system

October 19 roundup

Walter Olson — Tue, 19 Oct 2010 12:17:54 +0000

Supreme Court case: “Family’s vaccine claim is not sustainable” [Washington Post editorial, earlier] More: John Calfee, The American.
GAO: HHS acted in “unusual” way when it muzzled health plans on ObamaCare costs [Cannon/Cato-at-Liberty, earlier]
“Trial Opens for Adoption Attorney Accused of Stealing From Clients” [NYLJ]
U.K.: A “human right” to have someone prosecuted? [Greenfield]
“Dodd-Frank, Bubble Laws, and Quack Corporate Governance” [Bainbridge]
Child overprotection: “Pack away the cotton wool” [Sydney Morning Herald editorial, scroll]
Here comes another SCOTUS case in the Twombly-Iqbal series? [WLF] Update: Apparently not [Ted at PoL] Why Iqbal and Twombly were rightly decided [Beck]
Don’t link, criticize, use our name, refer to us, view our source code… [three years ago on Overlawyered]

Tags: international human rights, pleading, vaccines

October 19 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Will Congress overturn Twombly/Iqbal?

Walter Olson — Fri, 24 Sep 2010 12:30:02 +0000

Yielding to the Litigation Lobby’s push to overturn the two landmark Supreme Court decisions “would be the real revolution in pleading,” notes Verizon’s John Thorne at Metropolitan Corporate Counsel, and would come at a time when the rulings are showing signs of real promise in weeding down some busy areas of speculative litigation.

Tags: pleading

Will Congress overturn Twombly/Iqbal? is a post from Overlawyered - Chronicling the high cost of our legal system

June 21 roundup

Walter Olson — Mon, 21 Jun 2010 14:04:20 +0000

After Mohawk Industries settlement, many employers could be sitting ducks for suits claiming that hiring illegal workers is RICO violation [Helman, Forbes, earlier]
Teen tries to help child lost in store, winds up facing felony rap of false imprisonment [Greenfield]
Federal magistrate in debt collection case: letter on law firm letterhead implies threat to sue [Legal Intelligencer]
On “professional” class action objectors [Ted at PoL]
Coal company claims ventilation system ordered by government regulators might have been a cause of deadly April mine explosion [WSJ]
Senate committee approves judicial nomination of John (“Jack”) McConnell, impresario of Rhode Island lead-paint litigation; William Jacobson explains critics’ charges regarding couching of legal fee as purported hospital donation [Legal Insurrection]
Hey, stop siphoning that oil slick, we haven’t checked your life jackets and extinguishers [GatewayPundit] Gulf oil rig registered for purposes of regulation in remote Pacific island chain [Legal Blog Watch] Richard Epstein on oil spill liability [WSJ] BP will never pay full price of accident [Popehat] Check back in 2031 to see how the litigation went [Alex Beam, Boston Globe]
American Constitution Society holds panel discussion on Iqbal and Twombly [BLT] “Is It Too Much to Ask That a Lawsuit Be ‘Plausible’?” [Richard Samp, WLF Legal Pulse]

Tags: BP Transocean oil spill, class action settlements, judicial nominations, pleading, Rhode Island, Richard Epstein, safety

June 21 roundup is a post from Overlawyered - Chronicling the high cost of our legal system