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Richard Daynard

Video slots as next-tobacco?

by Walter Olson on December 12, 2013

We haven’t reported on the doings of Prof. Richard Daynard for a while, but here’s this Oregonian item about his institute at Northeastern University:

Mark Gottlieb, executive director of the Boston-based Public Health Advocacy Institute, said a handful of groups are looking at the potential for a broad product liability lawsuit over the addictive nature of the machines. …

“There are some similarities [with tobacco],” Gottlieb says. “We are talking about a product that is engineered to make people do something that is basically destructive and causes an economic injury.”

Portland attorney Greg Kafoury says he is part of “a team of national lawyers” looking at a potential class-action suit. He wouldn’t go into detail but called it “a major, long-term project.”

There is nothing new, however, about lawyers’ yearning to crack open this particular well-guarded vault. See our reports from May and September 2002, for example. Hope springs eternal?

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Around the country, courts have thrown out suit after suit by private hospitals, health insurers and benefit funds seeking to tag tobacco companies with the cost of smokers’ illnesses. A suit on behalf of various Missouri hospitals still hasn’t flickered out and is being litigated expensively, with Richard Daynard’s Northeastern University-based Tobacco Product Liability Project doing its customary cheerleading. (Heather Ratcliffe, “Hospitals’ suit against tobacco industry is large in every dimension”, St. Louis Post-Dispatch, Sept. 15).

Scruggs indictment VII

by Walter Olson on December 7, 2007

With the criminal case itself not furnishing many new developments over the past day or two, attention is turning to the question of what the “buried bodies” might be of which Tim Balducci claimed knowledge (and which prosecutors might wish him to sing about), and also to the possibly overlapping topic of Scruggs’s earlier run-ins with lawyers and other professionals over the splitting of fees. (Balducci represented Scruggs in some fee disputes, as did the Jones firm that later sued him over fees.) Also drawing much attention is the question of whether an intensified ethical searchlight will make life hot for the Mississippi political figures who’ve participated most extensively in Scruggs’s litigation campaigns over the years, namely former Attorney General Mike Moore and present AG Jim Hood.

The U.S. Chamber-backed stable of publications that includes Legal NewsLine has been digging into these topics. At the SE Texas Record, Steve Korris relates details of Scruggs’s lengthy and bitter dispute over asbestos fees with attorneys William Roberts Wilson Jr. and Alwyn Luckey, in which Scruggs was represented by John Griffin Jones. Jones’s associate Steve Funderburg in March of this year confronted Scruggs in dramatic fashion in an email over his sense of having been done out of Katrina fees:

“I have looked in the mirror all weekend and tried to figure out how I could be so stupid,” he wrote. “John and I DEFENDED you in fee dispute litigation for God’s sake.”

He wrote, “We DEFENDED you when people said you were greedy, or were a back stabber, or a liar, or anything else.”

He wrote, “You have developed a good routine. It worked. But go to your grave knowing that you have shaken my belief in everything I hold dear.”

He wrote, “I did not believe that people like you really existed. I am ashamed and will always be ashamed of having defended you and protected you.”

See also Y’All Politics for discussion.

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The New York Times finally weighs in on the impending case against Big Soda (see Dec. 5). Maybe it took them longer than expected to get the spin in favor of the suit just right. Prof. Daynard’s role gets somewhat downplayed this time around, the Center for Science in the Public Interest looms larger, and the most priceless bit comes at the end:

One detail yet to be decided is whether the group will seek financial damages. Under Massachusetts’s consumer protection law, successful plaintiffs are entitled to $25 per violation, which could mean $25 for every time a student has purchased a soda in a public high school in Massachusetts over the past four years.

Mr. Gardner said he and the other lawyers realize that damages could run into the billions. “We haven’t decided about this yet,” he said. “We don’t want this to come off looking like a greedy-lawyer lawsuit.”

(Melanie Warner, New York Times, Dec. 7). Comments: Volokh.

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“Richard Daynard, a Massachusetts law professor who made his name working as a consultant on class actions against tobacco companies, is part of a broad effort by both private attorneys and nonprofit groups to sue Atlanta-based Coca-Cola and other soft drink companies for selling high-calorie drinks in schools.” (Caroline Wilbert, Atlanta Journal-Constitution, Nov. 29; Caroline E. Mayer, “Lawyer coalition targets soft drink manufacturers”, Washington Post/Detroit News, Dec. 4; Todd Zywicki and vast comment section; Colossus of Rhodey). In the Boston Globe magazine, contributor Michael Blanding writes supportively of “a national legal movement to make soft drinks the next tobacco” (Oct. 30).

For more on the search for ways to blame business for our collective struggle with the waistline, see many entries in our Eat, Drink and Be Merry section. More on caffeine “addiction” theories: Aug. 18-20, 2000, Jun. 1, 2004. More on vending machine suits: Jul. 3, 2003. And as regular readers know, we’ve been covering Prof. Daynard’s activities for a long time; see Apr. 21-23, 2000 and many others.

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Once again the inevitable worldwide triumph of tobacco litigation turns out to be not so inevitable after all: “In the first case of its kind in Britain, a judge rejected Margaret McTear’s attempt to sue Imperial Tobacco over the death of her husband Alf 12 years ago. … Lord Nimmo Smith, at the Court of Session in Edinburgh, said the test case failed on every count. He ruled that Mr McTear knew what he was doing and there was no proof that his cancer was caused by a particular cigarette brand.” (Auslan Cramb, “Widow fails to pin blame on tobacco company”, Daily Telegraph, Jun. 1). Ever the gracious loser, Northeastern University lawprof-advocate and interest-nondiscloser Richard Daynard called the ruling “an extraordinarily ignorant opinion”: “The UK suffers from a conservative, narrow-minded judiciary who don’t know or don’t want to know the relevant medical and social facts,” he said. (Stephen Davis, “Smokescreen”, New Statesman, Jun. 27)($).

“Where are the promised obesity lawsuits?” Evan Schaeffer asks, citing an April 18 Reuters story by Gail Appleman. (He miscredits Overlawyered with the prediction of particular timing, however; we simply quoted a Lawyers Weekly USA headline that in turn relied upon the public statements of plaintiffs’ attorneys.)

Schaeffer goes on to suggest that the several states that have enacted laws protecting the fast-food industry have wasted their time. But of course the states that bar obesity lawsuits aren’t seeing obesity lawsuits. The plaintiffs’ bar bragged about how they used the media to change the playing field for tobacco litigation, and the fast-food industry stepped forward to prevent an instant replay, and won the public debate–thus discouraging many lawyers from spearheading these actions so far ahead of public opinion, especially when state law prevented recovery. But Richard Daynard, speaking at an AEI conference on the subject last month, certainly didn’t sound like he was going to give up: “I think these cases in the long term may have viability.” And John Banzhaf complained just yesterday that a 93% downward revision by the CDC of the estimated effects of obesity was a corporate conspiracy that wouldn’t affect lawyers’ plans for future lifestyle litigation. (Joyce Howard Price, “CDC says obesity deaths overestimated”, Washington Times, Apr. 20). It’s to the credit of the plaintiffs’ bar that many recognize that the lifestyle litigators may have bitten off more than they can chew; one suspects that the true concern is that such litigation could create a backlash against the compensation culture that funds Trial Lawyers Inc.

There’s a strange disconnect in Schaeffer’s argument. He suggests that reformers are deliberately exaggerating the risk of lifestyle litigation to get legislation passed — but what would be the motivation for achieving that goal if the risk is exaggerated? If the plaintiffs’ bar is really opposed to lifestyle litigation, as Schaeffer suggests, why not score some cheap political points by supporting the legislation instead of fighting it so hard? A cynic might suggest that they’re trying to keep the door open for copycat litigation in case the pioneers find a jurisdiction that will let the claims proceed. As it is, the Pelman decision (Jan. 27) will likely cost McDonald’s shareholders millions of dollars in litigation costs.

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A webcast of today’s American Enterprise Institute panel on obesity and lifestyle litigation is now on-line. I spoke at the second panel, moderated by AEI’s Michael Greve, along with activists Richard Daynard and Alison Rein, and Thomas Haynes of the Coca-Cola Bottlers’ Association. Todd Zywicki moderated an earlier panel on empirical research on the causes of obesity.

I’ll be speaking in Washington, D.C. this Wednesday and again on Friday. On Wednesday, I’ll be at the Cato Institute at noon (there’s even an audio feed) commenting on Robert Levy’s new book Shakedown. On Friday, I’ll be part of a panel discussion that starts at 1:30 at the Mayflower as part of the Federalist Society’s annual National Lawyers Convention, discussing regulation through litigation with a panel that includes Michigan Supreme Court Justice Robert Young Jr. and Northeastern Law’s Richard Daynard, among others.

Next week I’ve giving talks on Tuesday (Nov. 16) at two law schools in New York City, in both case sponsored by Federalist Society chapters. I’ll speak at Fordham in Manhattan at 12:30 and then at Brooklyn Law School at 4 p.m.

By a vote of 276 to 139 with most Democrats opposed, the House gave its approval to a bill that would bar lawsuits against the food industry over obesity. (Christopher Lee, “House bill bans suits blaming eateries for obesity”, Washington Post/San Francisco Chronicle, Mar. 11). The bill faces an uncertain future in the Senate; similar legislation is pending in many state legislatures and has passed in Louisiana. Jacob Sullum at Reason “Hit & Run” has two good commentaries on the bill. It’s “disconcerting to see Congress instructing state courts to dismiss patently absurd lawsuits. I worry that it’s not really necessary. I worry more that it is,” Sullum writes. (Mar. 9). Sullum also catches GW law prof John Banzhaf talking out of both sides of his mouth about whether obesity lawsuits have been successful (Mar. 10).

One activist quoted in the new coverage is Ben Kelley, who in cooperation with Prof. Richard Daynard has taken a prominent role in organizing conferences advising lawyers on how to sue the food industry (see Elizabeth Lee, Andrew Mollison, “Food fans weigh in”, Atlanta Journal-Constitution, Mar. 10). It turns out that this is none other than the same Ben Kelley we covered ten years ago when we examined how litigation consultants working with trial lawyers have successfully promoted bogus media coverage of alleged auto hazards, including NBC’s famous use of hidden incendiary devices to portray GM trucks as prone to explode (Walter Olson, “It Didn’t Start With Dateline NBC”, National Review, Jun. 21, 1993.) The pro-foodmaker Center for Consumer Freedom has more on Kelley’s recent activities: see Dan Mindus, “McLawsuit Lies”, National Review, Oct. 29; “Trial Lawyers Up Demands On Food Companies”, Oct. 30; “Update: Obesity War Loses Discredited General”, Nov. 4.

MedPundit Sydney Smith thinks (Mar. 10) that the much-headlined new study purporting to find that obesity claims more lives than smoking “is, all things considered, a very weak study. Certainly too weak to be the foundation of sweeping public policy.” For more of our coverage of obesity litigation, see Aug. 11, Jun. 20, Sept. 4, Aug. 6, Jul. 21, Jul. 3, Jul. 3 again, Jul. 1, Jun. 24, and a great deal more here. More: Radley Balko dissents from the bill on federalist grounds (Mar. 11)(& letter to the editor, Mar. 18).

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Florida class action (Engle), 2003:A $710 million loose end“, Jun. 24; ““Trial lawyers get spanked’“, May 24-26; “Court overturns $145 billion Engle award“, May 22-23. 2001:Angles on Engle“, May 24.  2000:‘Not even thinking about’ fees“, Aug. 11-13; “Smoking and responsibility: columnists weigh in“, Jul. 28-30; “‘Poll: majority disapprove of tobacco fine’“, Jul. 24-25; “Florida verdict: more editorial reaction“, Jul. 24-25; “Smoking and responsibility: columnists weigh in“, Jul. 28-30; Editorial roundup“, Jul. 19-20; “Florida tobacco verdict“, July 18; “Tobacco: why stop at net worth?” (punitive damage rulings by judge), Jul. 10; “Another Mr. Civility nominee” (Stanley Rosenblatt), Jun. 2-4.  1999:$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke class action), Sept. 28; “Personal responsibility takes a vacation in Miami“, Jul. 8; “The Florida tobacco jurors: anything but typical“, Wall Street Journal, Jul. 12, 1999. 

Tobacco fees reconsidered, 2003:Senate panel nixes tobacco-fee clawback“, May 9-11; “Feds indict former Texas AG“, Mar. 8-9; “‘Not a pretty picture’“, Jan. 10-12.  2002:Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29; “Welcome Fox News viewers/ readers“, Aug. 2-4; “Tobacco fees: one brave judge” (New York), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, Oct. 16-17, Oct. 25-27, 2002; Feb. 11 & Jun. 6-8, 2003; May 11, 2001).


‘Lawyers who won $10 bil. verdict had donated to judge’“, Apr. 30, 2003; “A bond too far“, Apr. 4-6; “Appeals bonds, again“, Apr. 2-3; “Mad County pays out again” (“light” cigarette class action), Mar. 24, 2003.

‘Nanny Bloomberg’” (NYC smoking ban), Oct. 22, 2002.

Tobacco fees, state by state, 2003:‘Law firms in tobacco suit seek $1.2b more’” (Mass.), May 19 (& Jan. 2-3, 2002, Dec. 22, 1999); “Feds indict former Texas AG“, Mar. 8-9 (& May 22, Sept. 1-3, 2000; Jun. 21, Aug. 29-30, Nov. 12, 2001, Jul. 15, Jul. 30-31, 2002; Jan. 10-12, 2003). 2002:Judge overturns $1.3 billion tobacco fee award” (Castano Group, California), Sept. 27-29; “Tobacco fees: one brave judge” (N.Y.), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, 2002, Oct. 16-17, 2002, Feb. 11, 2003, May 11, 2001); “Dewey deserve that much?“, Mar. 6; “Mass., Ill., NYC tobacco fees“, Jan. 2-3.  2001:Michigan tobacco fees“, Sept. 19-20; “Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Missouri’s tagalong tobacco fees“, Jun. 5 (& Sept. 21, 2000); “‘Lungren now a paid advocate for his former foes’” (Calif.), Apr. 5; “(Another) ‘Monster Fee Award for Tobacco Fighters’” (Calif. cities and counties), Mar. 21-22; “Reclaiming the tobacco loot“, Mar. 15; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19.  2000:Beehive of legal activity: Utah tobacco fees“, Nov. 6; “South Carolina tobacco fees: how to farm money“, Oct. 25; “Gore amid friendly crowd (again)” (Fla.), Apr. 12 (& “Dershowitz’s Florida frolic?“, Jul. 17; also see Dec. 8-10, 2000, Aug. 8-9, 2000, Dec. 27-28, 1999); “Sooner get rich” (Oklahoma), Jun. 7; “‘Lawyers’ tobacco-suit fees invite revolt’” (Ohio), May 23; “North Carolina (& Kentucky & Tennessee) tobacco fees“, May 2; “Connecticut AG has ‘no idea’ whether lawyers he hired are overcharging“, Feb. 3 (& update Feb. 16); “Pennsylvania tobacco fees: such a bargain!“, Jan. 10 (& Oct. 24, 2002). 1999:Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001, Apr. 10, 2002); “Illinois tobacco fees“, Oct. 16-17; “My dear old tobacco-fee friends” (Kansas AG, like Connecticut’s, gave tobacco business to her old law firm), Oct. 11 (see also Sept. 21, 2000); “Boardwalk bonanza” (N.J.), Oct. 1-3; “News judgment“, Aug. 6; “Puff, the magic fees” (Wisc.), Jul. 13. 

Tobacco-fee tycoons, 2003:Class action lawyer takes $20 million from defendant’s side” (Joseph Rice), Mar. 15-16; “‘Not a pretty picture’“, Jan. 10-12; 2002:Rumblings in Mississippi” (Scruggs, Minor), Oct. 9-10 (& Nov. 6); “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29.  2001:Settle a dispute today” (O’Quinn vs. Jamail), Sept. 18; “Ness monster sighted in Narragansett Bay” (Rhode Island, Ness Motley), Jun. 7 (& see Oct. 6-9, 2000, July 17, 2000, Nov. 1, 1999). 2000:Punch-outs, Florida style” (Robert Montgomery), Nov. 17-19 (& see Aug. 8, April 12, 2000; Aug. 21-22, 1999); “Friend to the famous” (Williams Bailey), Oct. 12; “Senator Lieberman: a sampler” (voted to curb tobacco fees), Aug. 8-9; “Trial lawyer candidates” (Minnesota’s Ciresi), Jul. 6 (& update Sept. 15-17; loses primary bid); “‘Lawyers’ tobacco-suit fees invite revolt’” (USA Today editorial), May 23.  1999:Who’s afraid of Dickie Scruggs?“, Dec. 2; “Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001); “The Marie Antoinette school of public relations” (tobacco lawyers pose for photo shoot on their yachts, horse farms, etc.), Aug. 21-22; and see lawyers’ campaign contributions

Humor:Dave Barry on tobacco settlement, round III“, Sept. 16-17, 2002; “Dave Barry on tobacco suits, round II“, March 16, 2000; “Dave Barry on federal tobacco suit“, Oct. 26, 1999; “Cartoon that made us laugh” (“….We can’t take those off the market! Dangerous products are a gold mine for the government!”), Jan. 21-23, 2000.
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Terms of state tobacco settlement, 2003: Appeals bonds, again“, Apr. 2-3. 2002:We did it all for the public health, cont’d” (Alabama devotes more proceeds to tobacco farmers than to smoking reduction), Aug. 22; “Tobacco settlement funds go to tobacco promotion” (N.C.), Jun. 28-30;  “‘Bush budget surprise: $25M for tobacco suit’” (Martha Derthick, Up in Smoke), Feb. 20. 2001:Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Reclaiming the tobacco loot“, Mar. 15; “Push him into a bedroom, hand him a script” (Bill Clinton testimonial for tobacco lawyers), Mar. 9-11; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19; “Safer smokes vs. the settlement cartel“, Feb. 7-8.  2000:Missouri tobacco fees“, Sept. 21, 2000; “Tobacco- and gun-suit reading” (Stuart Taylor, Jr.), Aug. 21-22, 2000; “Challenging the multistate settlement“, Jul. 17, 2000.  1999:‘Few Settlement Dollars Used for Tobacco Control’“, Dec. 27-28; “Tobacco bankruptcies, and what comes after” (state gov’ts, trial lawyers would become cigarette producers), Dec. 13; “How the tobacco settlement works” (the more cigarettes sold, the more money states get), Nov. 2; “Addictive tobacco money” (states sued over alleged burden on their taxpayers — so are they using the proceeds to cut taxes?), Sept. 7; “Collusion: it’s an AG thing” (terms of settlement cartelize cigarette industry), Jul. 29. Also see Walter Olson, “Puff, the magic settlement“, Reason, Jan. 2000. 

‘Tough tobacco laws may not deter kids’“, Jun. 7-9, 2002; “Blind newsdealer charged with selling cigarettes to underage buyer“, Sept. 16, 1999.

Sin-suit city” (Banzhaf), Jun. 10, 2002. 

Ad model sues tobacco company“, May 1-2, 2002. 

Australian party calls for banning smoking while driving“, Jun. 3-4, 2002; “‘Positive nicotine test to keep student from prom’” (over-18 student, off-premises consumption), Apr. 26-28, 2002 (& update May 10-12: school backs down); “Judge orders woman to stop smoking at home“, Mar. 27-28, 2002; “‘Smokers told to fetter their fumes’” (smoking in homes that bothers neighbors), Nov. 26, 2001; “Utah lawmakers: don’t smoke in your car” (when kids present), Oct. 5-7, 2001; “Apartment smoking targeted“, Jan. 3, 2000. 

Australian party calls for banning smoking while driving“, Jun. 3-4, 2002 (document retention case); “International tobacco suits: not quite such easy pickings“, Feb. 1-3, 2002; “‘Saudi Arabia finally gets tough on terrorism!’“, Dec. 10, 2001; “More from Judge Kent” (Bolivian suit), Aug. 3, 2001; “Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “They call it distributive justice” (government of Saudi Arabia sues tobacco cos.), Nov. 16, 2000; “Spreading to Australia?“, Dec. 29-30, 1999; “Israeli court rejects cigarette reimbursement suit“, Oct. 7, 1999. 

Veeps ATLA could love” (Durbin, D-Ill., as guardian of tobacco lawyers’ fees), July 7, 2000 (& see Apr. 25, 2002). 

“Competing interests: none declared”.  “The unconflicted Prof. Daynard“, April 21-23, 2000 (& update: letters, Jan. 2001, June 2001; Aug. 2, Dec. 17, 2001). 

Federal tobacco suit: our views:‘Bush budget surprise: $25M for tobacco suit’“, Feb. 20, 2002; “Judge throws out half of federal tobacco suit“, October 2, 2000; “Good news out of Washington…” (House votes to cut off funding for suit), June 21, 2000 (& update June 26: action reversed, funds approved); “Feds: dissent on smoking = racketeering“, Sept. 23, 1999; “Guest column in Forbes by Overlawyered.com‘s editor“, Oct. 25, 1999. 

Prison litigation: ‘Kittens and Rainbows Suites’” (cellmate’s smoking violates rights), Jan. 11-13, 2002. 

Boeken v. Philip Morris:Boeken record“, June 19, 2001; “$5,133.47 a cigarette“, Jun. 11, 2001; “Tobacco plunder in Los Angeles” ($3 billion damage award), Jun. 8-10, 2001. 

Federal tobacco suit: others’ views:Columnist-fest” (Jacob Sullum), Jun. 22-24, 2001; “Blatant end-runs around the democratic process” (former Labor Secretary Robert Reich), Jan. 15-16, 2000; “Dave Barry on federal tobacco suit” (plus novelist Tom Clancy’s critique), Oct. 26, 1999; “‘This wretched lawsuit’” (Jonathan Rauch in National Journal ), Oct. 13, 1999; “Feds’ tobacco shakedown: ‘A case of fraud’“, Sept. 29, 1999 (roundup of editorial pages); “Feds as tobacco pushers” (columnist Andrew Glass recalls encouragement of smoking in U.S. Army), Sept. 24, 1999; “Hurry up, before the spell breaks” (leading plaintiff’s lawyer wants feds to sue fast since public losing interest), Sept. 24, 1999.

Regulation by litigation:Tobacco- and gun-suit reading” (law prof Michael Krauss), Aug. 21-22, 2000; “Convenient line at the time” (tobacco is unique, said state attorneys general — sure), May 15; “Stuart Taylor, Jr., on Smith & Wesson deal” (“Guns and Tobacco: Government by Litigation”), Apr. 11, 2000; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone in U.S. News on threat to rule of law), Jul. 24-25, 1999; “Guns, tobacco, and others to come” (Peter Huber in Commentary on the new mass-tort cases as “show trials”), Jul. 20; “‘A de facto fourth branch of government’” (prominent trial lawyer Wendell Gauthier’s view of plaintiff bar’s role), Jul. 4, 1999. 

Dewey deserve that much?“, Mar. 6, 2002; “Health plans rebuffed in bid to sue cigarette makers“, Jan. 11, 2000. 

Terrorists, American business execs compared“, Sept. 28-30, 2001. 

Columnist-fest“, Jun. 22-24, 2001 (Amity Shlaes on asbestos synergy case); “Best little forum-shopping in Texas” (state’s Medicaid suit got filed in Texarkana, contributing $6.1 million to local economy), Aug. 27, 1999. 

The Kessler agenda” (former FDA chief calls for cigarette ban), Jan. 12-14, 2001; “Kessler rebuked” (FDA claim of authority over tobacco), March 27, 2000. 

Updates” (baby Castano suit nixed in N.Y.), Dec. 26-29, 2000. 

Wal-Mart’s tobacco exposure“, Sept. 25-26, 2000; “The Wal-Mart docket” (sued over tobacco sales), July 7, 2000.

Another billion, snuffed” (antitrust lawsuit between snuffmakers), May 10, 2000. 

Hollywood special: ‘The Insider’“, Mar. 30, 2000. 

Because they still had money” (Hausfeld’s price-fixing suit), Mar. 2, 2000. 

Tobacco lawyers’ lien leverage“, Feb. 29, 2000. 

Feds’ tobacco hypocrisy, cont’d: Indian ‘smoke shops’“, Jan. 25, 2000; “Do as we say, please” (Indian tribes, after profiting immensely from tax-free smoke shops, turn around and sue suppliers), Jul. 14, 1999. 

The joy of tobacco fees“, Jan. 20, 2000.

Calif. state funds used to compile ‘enemies list’“, Jan. 5, 2000.

‘Trial lawyers on trial’” (Trevor Armbrister, Reader’s Digest), Dec. 23-26, 1999.

Philadelphia Inquirer Tech.life: ‘Web Winners’” (this page is recommended), Dec. 15, 1999.

Ohio tobacco-settlement booty“, Nov. 8, 1999.

Public by 2-1 margin disapproves of tobacco suits“, Nov. 5-7, 1999. 

Not-so-Kool omen for NAACP suit“, Nov. 1, 1999. 

Minnesota to auction seized cigarettes“, Oct. 21, 1999. 

Reform stirrings on public contingency fees“, Oct. 15, 1999.

Big guns” (tobacco example shaped gun litigation), Oct. 5-6, 1999.

Plus extra damages for having argued with us” (“lesson of tobacco”: you can get punished for defending your product), Aug. 19, 1999. 

‘Settlement bonds’: are guns next?” (how Wall Street finances expropriation of industries), Aug. 5, 1999.


Do the tobacco wars that began in the mid-1990s represent an unprecedented triumph for public health?  Are they an inevitable response to legislative gridlock on smoking policy?  Or are they our legal system’s own updated version of the Gilded Age scandals that brought American government into disrepute a century ago, siphoning billions of dollars of publicly obtained money into the hands of politically connected attorneys?  Commentaries on Overlawyered.com (above) may help you decide.  In the mean time, the following links offer a way into the wider tobacco controversy: 

Anti-tobacco groups, most of which are supportive of litigation as well as other coercive government actions aimed at curtailing tobacco sale and use, are well represented on the web.  They include Tobacco.org, federally funded antitobacco activist Stanton Glantz’s Tobacco Control Archives, Americans for Non-Smokers’ Rights, Action on Smoking and Health, and the American Council on Science and Health. Tobacco.org’s links list is especially comprehensive. The empire associated with Prof. Richard Daynard, participant in tobacco suits, oft-quoted expert, and professor at Northeastern U., includes the Tobacco Products Liability Project and Tobacco Control Resource Center, as well as the State Tobacco Information Center.  The Castano Group, a vast joint venture of trial lawyers cooperating to file tobacco class actions, maintains a website that is distinctly uninformative (unless you’re a lawyer/member or a cooperative pressie).

Relatively neutral sites include Yahoo Full Coverage.

Critics of the anti-tobacco crusade often note that it curtails individual liberty, freedom of contract and freedom of association.  As part of its Breaking Issues series (“Fining Smokers“), Reason magazine includes a list of online articles skeptical of the government’s role in the tobacco field, while Reason senior editor Jacob Sullum is the author of 1998′s For Your Own Good : The Anti-Smoking Crusade and the Tyranny of Public Health.  At the libertarian-oriented Cato Institute, Robert Levy has criticized “The Tobacco Wars“, written that “States Share Blame for Tobacco Lawyers’ Greed“, and called tobacco settlements “Dangerous to Your Liberty“; the state Medicaid suits, he argues, are “Snuffing Out the Rule of Law“. Cato’s Jerry Taylor describes the battle as “The Pickpocket State vs. Tobacco“. “The Anti-Tobacco Crusade” by Joseph Kellard, Capitalism magazine, March 1998, argues from a viewpoint supportive of Ayn Rand’s Objectivism. In Colorado, the Independence Institute maintains a Center for Personal Freedom run by Linda Gorman which draws the connection to other paternalist crusades on issues like drinking, seatbelt use and mandatory helmet laws.  The Heritage Foundation’s Todd Gaziano makes the case that a proposed federal lawsuit against tobacco companies is “elevating politics over law” (July 30, 1999 Backgrounder).  Overlawyered.com‘s editor has taken exception to the retroactivity of the crusade, to its manipulative treatment of children, and to the hardball or demagogic tactics used in the Castano and Engle cases. Rep. Chris Cox (R-Calif.) delivered a notable critique of the tobacco litigation at a Congressional hearing held Dec. 10, 1997 (no longer online).

An extensive site offering an aggressive defense of smoking and smokers, along with a large collection of links, is Forces International (“Fight Ordinances and Restrictions to Control and Eliminate Smoking”).

Texas’s giant legal reform“, Jun. 18-19, 2003.

Malpractice suit crisis, 2003:Letter to the editor“, Jun. 20-22; “Docs leaving their hometowns“, Jun. 12-15; “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “Public Citizen’s bogus numbers“, Apr. 10-13; “Malpractice crisis hits sports-team docs” (& general roundup), Apr. 7-8; “Would you go into medicine again?“, Mar. 18; “‘Public deceit protects lawsuit abuse’“, Mar. 15-16; “One solution to the malpractice crunch“, Feb. 19; “Feinstein set to back Bush malpractice plan“, Feb. 12; “State of the Union“, Jan. 29; “Malpractice-cost trends“, Jan. 24-26; “ATLA’s hidden influence“, Jan. 21-22; “Playing chicken on malpractice reform“, Jan. 9; “‘Doctors strike over malpractice costs’” (W.Va., Pa.), Jan. 3-6.  2002:Campaign roundup“, Nov. 4-5; “Pennsylvania House votes to curb venue-shopping“, Oct. 11-13; “Rumblings in Mississippi“, Oct. 9-10 (& Sept. 9-10); “Let ‘em become CPAs“, Oct. 7-8; “Tour of the blogs“, Sept. 24; “You mean I’m suing that nice doctor?“, Aug. 1; “‘Bush urges malpractice damage limits’“, Jul. 29; “‘Trauma center reopens doors’“, Jul. 18; “Malpractice crisis latest” (Pa., Tex.), Jun. 11-12; “Sick in Mississippi?  Keep driving“, Jun. 3-4 (& Apr. 5-7); “‘Rocketing liability rates squeeze medical schools’“, May 28-29; “‘The trials of John Edwards’“, May 20-21; “Ob/gyns warn of withdrawal“, May 17-19; “‘The Tort Mess’” (Forbes, etc.), May 13; “Texas doctors’ work stoppage“, Apr. 11 (& Mar. 15-17); “No more ANZAC Day marches?” (Australia), Apr. 1-2; “Scenes from a malpractice crisis“, Mar. 5; “Med-mal: should doctors strike?“, Jan. 21-22.  2001:  “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Valley doctors caught in “lawsuit war zone”‘“, May 3; “Pennsylvania MDs drop work today“, Apr. 24; “Philadelphia juries pummel doctors“, Jan. 24-25.  2000:Trial lawyers’ clout in Albany“, Oct. 4; “Malpractice outlays on rise in Canada“, Oct. 2. 

Ob/gyn, 2003:Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “‘Edwards doesn’t tell whole story’“, Mar. 4 (& letter to the editor, Mar. 31); “‘Delivering Justice’“, Feb. 27.  2002:Ob/gyns warn of withdrawal“, May 17-19 (& see Jun. 11-12); “‘Support case hinges on failed sterilization’” (Ind.), Apr. 26-28; “Med-mal: should doctors strike?“, Jan. 21-22.  2001:Fleeing obstetrics, again“, Dec. 21-23; “‘Wrongful life’ comes to France“, Dec. 11 (& updates Jan. 9-10, May 20-21, Jul. 1-2, 2002); “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000); “Pennsylvania MDs drop work today“, April 24; “Caesarean rate headed back up“, Feb. 5.  2000:Birth cameras not wanted“, Oct. 18; “Plastic surgeons must weigh patients’ state of mind, court says” (roundup: anti-abortion suits), Aug. 15.  1999:‘Trial lawyers on trial’” (Norplant, etc.), Dec. 23-26; “‘Your perfect birth control…blocked?’“, Aug. 11 (Norplant) (& update Aug. 27; company to settle 36,000 suits); “Yes, this drug is missed” (hospital admissions for hyperemesis tripled after lawyers drove Bendectin off market), Jul. 21. 

Malpractice studies“, May 12, 2003; “Radiologists: sue them enough and they’ll go away“, Nov. 2, 2000 (& see Sept. 24, 2002).

Nursing homes, geriatrics, 2003:Florida: ‘New clout of trial lawyers unnerves legislators’“, Mar. 20; “$12,000 a bed“, Mar. 19.  2001:Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17; “‘Nursing homes a gold mine for lawyers’“, Mar. 13-14.  2000:‘Litigation grows in ailing nursing home industry’“, Jun. 20 (& see Mar. 2-4, 2001). 

Incoming link of the day“, Mar. 5-7, 2003.

Emergency medicine:‘Trauma centers warn lives could be at risk’” (Orlando), Feb. 28-Mar. 2, 2003; “Ambulances, paramedics sued more“, Oct. 28-29, 2002; “Let ‘em become CPAs“, Oct. 7-8; “Avoid having a medical emergency in Mississippi“, Apr. 5-7; “Scenes from a malpractice crisis” (closure of trauma centers), Mar. 5, 2002  (& see Jun. 11-12); “That’ll teach ‘em” (Chicago EMS), Dec. 26-28, 2000; “Highway responsibility” (ambulance, hospital sued in Derrick Thomas crash), Nov. 28, 2000. 

The jury pool he faced“, Feb. 25, 2003.

Take care of myself?  That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.

“Medical mistakes” estimates, 2001:  “Report: ‘medical errors’ study overblown“, July 27-29.  2000:‘Report on medical errors called erroneous’“, July 11; “Medical mistakes, continued“, March 7; “‘Medical errors’ study“, Feb. 28; “Against medical advice” (Clinton proposals), Feb. 22 (& see malpractice law section below). 

Mercury in dental fillings“, Jul. 16-17, 2002 (& Nov. 4-5, 2002). 

Psychiatry and allied fields, 2002:‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘After stabbing son, mom sues doctors’“, May 31-June 2; “Counseling center may face closure” (Okla.), May 24-26.  2000:Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27 (update, Mar. 2: he’s reported to have punched a social worker twice since going off medication; Mar. 29: jury convicts him anyway); “Latest excuse syndromes” (“Internet intoxication”, etc.), Jan. 13-14; “Warn and be sued” (clinical psychologist loses confidentiality suit after warning of patient’s dangerousness), Jan. 12.  1999:Doctor sues insurer, claims sex addiction“, Oct. 13; see also personal responsibility

Artificial hearts experimental? Who knew?“, Oct. 23, 2002.

U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000. 

Lawyers fret about bad image” (lawyers’ own poll finds public has much more confidence in doctors than in lawyers), Oct. 3, 2002.

‘Patient pays price for suing over cold’” (U.K.), Sept. 20-22, 2002.

‘Doctors hope fines will curb frivolous lawsuits’“, Sept. 6-8, 2002; “The doctor strikes back” (neurosurgeon countersues), June 14-15, 2000; “‘Truly egregious’ conduct” (court cites misconduct by attorney Geoffrey Fieger in suit against cardiologist), Sept. 14, 1999. 

“Accident medicine”, 2002:‘How to spot a personal injury mill’“, Aug. 19.  2001:Lawyers (and docs) block cleanup of Gotham crash fraud“, April 2.  2000:‘How do you fit 12 people in a 1983 Honda?’“, Aug. 23-25; “His wayward clients“, May 25; “Less suing = less suffering” (NEJM whiplash study), Apr. 24 (& update Jun. 26). 

‘The NFL vs. Everyone’” (medical privacy laws could restrict sports teams from commenting on players’ injuries), Jun. 13, 2002; “Promising areas for suits” (sports medicine), Dec. 7, 2000; “Doctor cleared in Lewis cardiac case“, May 15, 2000. 

‘Remove child before folding’” (AEI-Brookings study on defensive medicine), Jun. 5, 2002. 

Managed care/HMOs, 2002:‘Bad movie, bad public policy’” (John Q), Mar. 19; “Washington Post blasts HMO class actions“, Jan. 30-31.  2001:Managed care bill: Do as we say…“, Sept. 7-9 (& Dec. 6, 1999); “Contrarian view on PBR“, Aug. 17-19; “Chapman, Broder, Kinsley on patients’ rights“, June 28; “Managed care debate“, June 26; “Columnist-fest” (Morton Kondracke), June 22-24; “Docs and Dems“, June 19; “Roundup“, May 21.  2000:Patients’ Bill of Wrongs” (Richard Epstein), Oct. 27-29; “Fortune on Lerach“, Aug. 16-17; “Arm yourself for managed care debate“, April 20; “Employer-based health coverage in retreat?“, March 31-April 2.  1999: Weekend reading: columnist-fest” (John McCarron), Dec. 11-12; “Actions without class” (Wash. Post editorial: “extortion racket”), Dec. 2; “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Aetna chairman disrespects Scruggs“, Nov. 18-19; “World according to Ron Motley” (world’s richest lawyer plans to sue HMOs, nursing homes, drugmakers), Nov. 1; “Deal with us or we’ll tank your stock” (managed care stock prices plunge), Oct. 21; “‘Health care horror stories are compelling but one-sided’“, Oct. 16-17; “After the HMO barbecue“, Oct. 12; “Power attracts power” (Boies joins anti-HMO effort), Sept. 30; “Impending assault on HMOs“,  Sept. 30; “Rude questions to ask your doctor” (why are you helping trial lawyers make it easier to sue health plans?), Sept. 4-6; From the fourth branch, an ultimatum” (leading trial lawyer vows to “dismantle” managed care), July 16

Hospital rapist sues hospital“, May 22-23, 2002 (& Mar. 5-7, 2003: court dismisses case). 

Bush’s big mistake on mental health coverage“, May 13, 2002. 

‘Big government ruined my long weekend’” (tide-over weekend prescribing), May 7, 2002. 

Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002. 

All things sentimental and recoverable” (veterinarians), Jan. 30-31, 2002. 

Public health follies:Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001; “Letter to the editor” (activist doctors vs. gun ownership), May 18, 2001; “‘P.C., M.D.’“, Feb. 23-25, 2001. 

Bioterrorism preparedness” (laws hobble hospitals), Oct. 30, 2001. 

Letter to the editor“, Sept. 3, 2001 (can/should doctors avoid lawyers as patients?) (responses, Oct. 22). 

Clinical trials besieged“, Aug. 27-28, 2001; “Bioethicist as defendant” (Arthur Caplan, Jesse Gelsinger case), Oct. 6-9, 2000. 

‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17, 2001. 

The unconflicted Prof. Daynard” (British Medical Journal and tobacco lawyer), April 21-23, 2000 (& update: letters, Jan. 2001, June 2001). 

To destroy a doctor” (lawyer’s campaign against laparoscopic surgeons), June 6, 2001. 

Mommy, can I grow up to be an informant?“, July 30, 2001; “A case of meta-False Claims” (overzealous prosecution of hospitals), Sept. 9, 1999. 

Updates” (Lawyers’ cameras in trauma ward), Dec. 26-28, 2000 (& Oct. 18). 

Promising areas for suits” (laser eye surgery), Dec. 7, 2000. 

Plastic surgery:Plastic surgeons must weigh patients’ state of mind, court says“, Aug. 15, 2000 (& June 11, 2001: she loses); “Strippers in court“, Jan. 28, 2000; “No spotlight on me, thanks” (leading breast-implant lawyer obtains gag order against lawyers for dissatisfied clients), August 4, 1999; “Never saying you’re sorry” (implants), July 2, 1999. 

Turn of the screw” (pedicle screw lawsuits), Oct. 24, 2000. 

Disabled rights roundup” (obligatory sign interpreters at doctor’s offices), Sept. 29-Oct. 1, 2000; “From our mail sack: ADA enforcement vignettes” (interpreters, guide dog allergy case), May 31, 2000. 

Embarrassing Lawsuit Hall of Fame” (intimate injury; misdiagnosis charge), Aug. 14, 2000. 

Senator Lieberman: a sampler” (cost of defensive medicine), Aug. 8-9, 2000. 

And don’t say ‘I’m sorry’” (nurse’s first-person account), June 21, 2000. 

Can’t sue over affair with doctor” (court rules it was consensual), June 13, 2000. 

Jumped ahead, by court order” (residency), May 31, 2000.

‘Case’s outcome may spur more lawsuits’” (Mississippi fen-phen trial), Dec. 10, 1999; “‘Dieters still want fen-phen’“, August 18, 1999. 

Rhode Island A.G.: let’s do latex gloves next“, Oct. 26, 1999. 

Michigan high court upholds malpractice reform“, August 6, 1999. 


Other resources on medicine and litigation:

Good general links pages on health law are provided by the St. Louis University Center for Health Law Studies and by the whimsically named but highly useful Health Hippo

The Litigation Explosion, the 1991 book by Overlawyered.com editor Walter Olson, was excerpted in two parts by Medical Economics [part one] [part two

Marc Arkin, “Products Liability and the Threat to Contraception” (Manhattan Institute Civil Justice Memo, February 1999). 

L. William Luria, M.D., and Dennis G. Agliano, M.D., “Abusive Medical Testimony: Toward Peer Review“, describes efforts under way in Hillsborough County, Florida, to apply principles of peer review to the control of irresponsible or unqualified forensic testimony by medical professionals. 

Walter Olson, “Lawyers with Stethoscopes: Clients Beware” (Manhattan Institute Civil Justice Memo, 1996) (abusive litigation is also bad for the medical prognosis of claimants) 

Breast implants: see separate page

Vaccines: 

Health Hippo vaccines section. 

Peter Huber, “Dan Quayle, the Lawyers and the AIDS Babies“, Forbes, October 28, 1991 (liability and an AIDS vaccine). 

Peter Huber, “Health, Death, and Economics“, Forbes, May 10, 1993 (“investment in vaccines remains far lower than it should be, given the huge benefits that vaccines provide”) 

Walter Olson, “California Counts the Costs of Lawsuit Mania“, Wall Street Journal, June 3, 1992 (liability slowing research on AIDS vaccine). 

Malpractice law:

Daniel Kessler and Mark McClellan of Stanford won the Kenneth Arrow Award in Health Economics in 1997 for their article “Do Doctors Practice Defensive Medicine?”, which “found that when states reformed malpractice laws to put caps on damages for pain and suffering, or to eliminate punitive damages, hospital expenditures for heart disease patients were reduced by about 5 percent, yet did not leave the patients with worse health outcomes.” 

Richard Anderson, M.D., “An ‘Epidemic’ of Medical Malpractice?  A Commentary on the Harvard Medical Practice Study“, Manhattan Institute Civil Justice Memo, July 1996 (shortcomings of famous study of medical care in New York hospitals). 

Forbes columns by Peter Huber on the issue include “Malpractice Law: A Defective Product” (1990) and “Rx: Radical Lawyerectomy” and “Easy Lawsuits Make Bad Medicine” (1997). 

Walter Olson, “A Story That Doesn?t Have a Leg To Stand On,” Wall Street Journal, March 27, 1995 (the famous “wrong-leg amputation” case). 

In 1993, in a paper given at the annual meeting of the Association for Health Services Research, Daniel Mendelson and Robert Rubin estimated that defensive medicine practices in three areas alone — pre-surgical testing, fetal monitoring and skull x-rays — probably exceeded $2 billion a year, and estimated likely savings from “aggressive malpractice reform” at more than twice that amount.  Perhaps in contrast (or perhaps not), a 1995 study of obstetrics in Washington state by L. Baldwin et al found no differences in practice between doctors who had been named in suits and those who had not. And Mark Hauser et al, “Fear of Malpractice Liability and its Role in Clinical Decision-Making” studied doctors’ reaction to hypothetical cases in which a patient’s file did or did not reveal a history of having sued physicians.  They found that in cases where an earlier suit had been reported the doctors were modestly more likely to call in other doctors, to recommend hospital admission, to document a case “by the book” rather than rely on judgment, and to predict a bad outcome.  Surprisingly, they did not order more tests or withdraw from cases more often when informed that a patient had a record of suing.  The Hauser paper notes one possible cost of an over-hasty resort to hospitalization: “In psychiatry a defensive response might include a needlessly low threshold for involuntary hospitalization, where the patient’s liberty and autonomy are, in essence, sacrificed in favor of conservative practice for the sake of self-protection.” 

The Michigan law firm of Garan, Lucow, Miller & Seward, P.C., which has a specialty in medical malpractice defense, maintains a comprehensive links page of resources in the field. 

Among reform groups, the Health Care Liability Alliance is a nationwide advocacy group whose website offers a variety of useful materials on the case for lawsuit reform. Californians Allied for Patient Protection defends the Golden State’s MICRA limits on malpractice liability.  CLYSIS is a Minnesota group working for medical liability reform.  State medical societies, such as the Medical Society of the State of New York, often maintain law-related information at their websites.