• Easterbrook: “One who misuses litigation to obtain money to which he is not entitled is hardly in a position to insist that the court now proceed to address his legitimate claims, if any there are…. Plaintiffs have behaved like a pack of weasels and can’t expect any part of their tale be believed.” [Ridge Chrysler v. Daimler Chrysler via Decision of the Day]
• Retail stores and their lawyers find sending scare letters with implausible threats of litigation against accused shoplifters mildly profitable. [WSJ]
• Kentucky exploring ways to reform mass-tort litigation in wake of fen-phen scandal. [Mass Tort Prof; Torts Prof; AP/Herald-Dispatch; earlier: Frank @ American]
• After Posner opinion, expert should be looking for other lines of work. [Kirkendall; Emerald Investments v. Allmerica Financial Life Insurance & Annuity]
• Judge reduces jury verdict in Premarin & Prempro case to “only” $58 million. And I still haven’t seen anyone explain why it makes sense for a judge to decide damages awards were “the result of passion and prejudice,” but uphold a liability finding from the same impassioned and prejudiced jury. Wyeth will appeal. [W$J via Burch; AP/Business Week]
• Judge lets lawyers get to private MySpace and Facebook postings. [OnPoint; also Feb. 19]
• Nanny staters’ implausible case for regulating salt. [Sara Wexler @ American; earlier: Nov. 2002]
• Doctor: usually it’s cheaper to pay than to go to court. [GNIF BrainBlogger]
• Trial lawyers in Colorado move to eviscerate non-economic damages cap in malpractice cases [Rocky Mountain News]
• Bonin: don’t regulate free speech on the Internet in the name of “campaign finance” [Philadelphia Inquirer]
• “Executives face greater risks—but investors are no safer.” [City Journal]
• Professors discuss adverse ripple effects from law school affirmative action without mentioning affirmative action. Paging Richard Sander. Note also the absence of “disparate impact” from the discussion. [PrawfsBlawg; Blackprof]
• ATL commenters debate my American piece on Edwards. [Above the Law]

(Updating and bumping Feb. 4 post about to roll off bottom of page because of new comment activity)

• Judge Fallon denied the motion of Florida plaintiffs to expedite a hearing on their inclusion into a settlement when they did not even bring suit (Jan. 30). Merck and the PSC are required to respond Feb. 15, and the hearing will be Feb. 21, where one can expect the motion to be denied.
• At Point of Law, I comment on the recent grand jury investigation into Merck marketing of Vioxx.

Update, Feb. 8: separately, Merck yesterday settles for $650 million different Medicaid fraud allegations over the marketing of Vioxx and other drugs. The qui tam relator will get a jackpot award of $68 million. [WaPo; DOJ; Merck] The pricing theories at the center of these lawsuits—which hold Merck liable for purportedly charging too little—definitely deserve longer discussion another time.

Continue Reading »

Please register for this event online at http://www.aei.org/event1626.

The AEI Legal Center for the Public Interest and the Federalist Society present:

The Vioxx Settlement

Monday, January 7, 2008, 12:00 p.m.–2:00 p.m.
Wohlstetter Conference Center, Twelfth Floor, AEI
1150 Seventeenth Street, N.W., Washington, D.C. 20036

In 2004, Merck withdrew its pain reliever Vioxx from the market because of new studies showing increased cardiovascular risk. Merck announced that it would not settle any of the tens of thousands of Vioxx lawsuits filed, and set aside over a billion dollars to litigate cases without reserving a penny for damages. After a $254 million verdict in the first Vioxx trial in 2005, some observers predicted over $25 billion in liability for the company. Fifteen trials later, Merck and the plaintiffs’ attorneys announced a settlement of the outstanding personal injury litigation—for under $5 billion. Merck stock rose after the announcement, and is now higher than before it withdrew Vioxx from the market. But some law professors are arguing that a new and unusual provision in the settlement raises ethical concerns.

Why did Merck settle? And why was the settlement for so much less than originally anticipated? Is the Merck settlement different from the Wyeth fen-phen settlement, which was originally announced as a $3.75 billion settlement, but has so far cost more than $20 billion? Will the settlement stand up under legal challenge, and what will remain of the Vioxx litigation if it does?

At this event cosponsored by AEI and the Federalist Society, a panel of experts will explore these and other questions. Speakers include Vanderbilt law professor Richard Nagareda, author of Mass Torts in a World of Settlement; Virginia legal ethics professor George Cohen; author and leading pharmaceutical mass torts defense attorney Mark Herrmann; Andy Birchfield, a member of the Vioxx Plaintiffs’ Steering Committee; and Ted Frank, director of the AEI Legal Center for the Public Interest. AEI resident scholar John E. Calfee will moderate.

11:45 a.m.
Registration and Lunch

12:00 p.m.
Panelists:
Andy Birchfield, Beasley Allen
George Cohen, University of Virginia School of Law
Ted Frank, AEI
Mark Herrmann, Jones Day
Richard Nagareda, Vanderbilt University Law School

Moderator:
John E. Calfee, AEI

2:00 p.m.
Adjournment

• In Scotland, car repair shop faces music royalty suit because its employees listen to radios on the job [BBC]
• Pediatricians grill kids about their parents’ drinking, gun ownership and antisocial habits — what, weren’t the hairdressers reporting back enough dirt for the authorities to work with? [Malkin, Szwarc]
• Watch out for the new ADA Restoration Act of 2007, which would reverse several Supreme Court precedents with the aim of making it easier to file and win suits [Bader]
• Don’t confuse Hollywood’s idea of lawyering, as in Clooney’s “Michael Clayton”, with the real kind [Lundegaard, MSNBC]
• “It costs millions of dollars in litigation fees to show that a patent should not have been granted, and most big corporations have learned that the hard way.” [Chachkes @ CNet]
• Banning all uses of lead from metal assemblies can result in “tin whiskers” leading to catastrophic failures in electronic devices — lucky those aren’t dangerous or anything [AP]
• Armenian-American writer Garin Hovannisian isn’t an admirer of the Congressional genocide resolution [Boaz @ Cato-at-Liberty; see also Jul. 27]
• Lynchburg, Va. woman: hey, I invented those pre-moistened cleaning wipes [News Advance via VLW]
• Don’t listen to trolls like this Olson fellow [Mark Thoma comments]
• Another round of coverage on libel tourism, SLAPPs and terror-support research [Broyde & Lipstadt @ NYT; Miller @ City Journal, Levitt @ The New Republic]
• New at Point of Law: Ted on yet another iPhone suit, this time demanding a billion plus; further coverage of the Hofstra/Lynne Stewart affair; after many failures, lawyers score a $143 million verdict against Wyeth over hormone replacement drug Prempro/Premarin; more on the U.S. Navy, WWII and asbestos disease; new Irvine law school’s in the money; and much more.

Melbourne Mills, Shirley Cunningham Jr. and William Gallion were “temporarily suspended” from the practice of law by the Kentucky Supreme Court this week. The three had taken well over half of a $200 million settlement Wyeth had given them on behalf of 440 fen-phen users they had represented. (Brandon Ortiz, “3 Fen-phen case lawyers are suspended”, Lexington Herald-Leader, Aug. 25; Andrew Wolfson, “Fen-phen case fees poured into racehorses”, Louisville Courier-Journal, May 30; Andrew Wolfson, “Judge: Fen-phen lawyers breached duty”, Louisville Courier-Journal, Mar. 10; Beth Musgrave and Jim Warren, “Fen-phen settlement is back in the courtroom”, Lexington Herald-Leader, Jan. 29, 2005 (reprint)). More: May 10, 2005 (civil lawsuit); Mar. 6 (judge who profited from approval of settlement resigns).

Mills was recently in the news because he won a suit against a secretary who claimed (with the help of a recording) that he promised her an “Erin-Brockovich”-style payment for her help in the settlement. (Brandon Ortiz, “Ruling benefits Melbourne Mills Jr.”, Lexington Herald-Leader, Apr. 4). (cross-posted at Point of Law)

Under current civil procedure rules, parties, upon request, and with very few limits, must turn over all relevant documents to the opposing party. In the twenty-first century, that includes e-mail. Failure to turn over enough e-mail can cost a company a billion dollars in de facto sanctions (Dec. 17); turning over too much e-mail can waive the attorney-client privilege. Thus, unless parties can come to an agreement otherwise, teams of attorneys have to review every single e-mail, at great expense.

But in a typical tort action, with an individual plaintiff and one or more corporate defendants, there are asymmetric discovery burdens. An individual plaintiff has no incentive to agree with a corporate defendant to limit the corporate defendant’s burden, because (1) increasing the expense to the corporate defendant increases the likelihood of a nuisance settlement and (2) there’s no telling what stray e-mail might be able to be taken out of context to make a case to a jury unfamiliar with corporate communications that a defendant is worthy of punitive damages. (Numerous plaintiffs have successfully used decades-old back-of-the-napkin sloppy cost-benefit analyses by individual Ford and GM engineers to obtain millions of dollars of punitive damages for entirely different vehicle designs; an e-mail by Kay Anderson, a low-level Wyeth administrator who expressed frustration that her career was mired in dealing with complaints from what she called “fat people scared of a silly little lung problem” cost the company tens of millions, if not more, in fen-phen litigation when plaintiffs tarred the whole company with it.) This Wired story (via Bashman) about Enron e-mail made public provides a good reminder that any e-mail you send or receive at work is likely to end up in the hands of multiple lawyers one day.

That’s the banner headline of a website promoting litigation over the now-withdrawn arthritis drug. (William F. Hammond, Jr., “Merck Faces Flood of Vioxx Lawsuits After Drug Recall”, New York Sun, Oct. 27)($)(reprinted here, PDF)(I’m cited in article too). Here are some more highlights from the website in question:

…Experts estimate the class action lawsuit will award $5 billion, 50% of which will go to the top 1000 sufferers, or $2.5 million per person. Get your share. It is the easiest way to become a millionaire. (In 1997, the recall of a couple of diet therapies by Wyeth resulted in $16 billion so far paid out in claims) If you have heard of Million Dollar Awards from Tobacco Lawsuits, Vioxx cases are easier to win….

Lacking in symptoms? Don’t despair:

The chance of winning is much greater, if you had any heart attack in your medical record. Small heart attacks are untraceable. Many have this record without ever detected by doctors.

Lacking in any evidence that you ever took the drug? Hope is on the way:

We will show you how to prove you had taken Vioxx, to prove that you had related side effects, and to find a good lawyer to win your case. There are still places selling Vioxx after the recall, you can find them online. Merck is still 100% fully responsible for any side effect. If you purchase Vioxx now, not only you can sue Merck, you can also sue the pharmacy store for selling recalled products. The purchase is risk free, as Merck will pay you every penny you spend on Vioxx including tax and shipping fees.

The website’s sponsorship is not immediately apparent; though it is chock-full of Google ads for law firms, we saw no indication that it was itself posted by a member of the legal profession, though we may have overlooked something. A second page proposes that readers pay $100 to purchase a document if you “want to know something that no Vioxx Class Action Lawsuit Lawyers will ever tell you, want to get a bigger share of the award”. Remember, “Vioxx Lawsuit is the easiest way to make you a millionaire.” More: Nov. 18, Dec. 22.

Contrary to some expectations, Philadelphia juries have not been proving a soft touch for “opt-out” plaintiffs who’ve journeyed there from around the country to sue drugmakers over alleged side effects from the diet-drug compound. One recent jury awarded a mere $4,000 to five women from Utah after a three-week trial, and another returned an outright defense verdict in a case brought by four Philadelphia women. Most of the plaintiffs exhibit heart murmurs and other subtle heart irregularities which they contend were brought on by the use of Pondimin and Redux, but a plaintiff’s lawyer says their case is weakened because most display no symptoms and are not under a doctor’s care for the claimed irregularities. “They don’t have treating doctors who will back up their stories,” agrees a lawyer for Wyeth. “The juries aren’t buying it.” (L. Stuart Ditzen, “Diet-drug lawsuits netting slim payoffs”, Philadelphia Inquirer, Aug. 16). For more on fen-phen, see Jan. 25, Jan. 6 and links from there; Apr. 28 ($1 billion verdict in Texas for fatality claimed to be linked to drug).

“A jury awarded $1 billion to the family of a woman who once took the Wyeth-made diet drug Pondimin, part of the now-banned weight-loss combination fen-phen.” Cynthia Cappel-Coffey, who died last year at 41 of primary pulmonary hypertension (PPH), did not develop symptoms of PPH until more than four years after using the Wyeth drug. According to Bill Sims, a lawyer for Wyeth, the Beaumont judge refused to allow the company to introduce evidence that Cappel-Coffey had taken four other diet drugs in the intervening years, although all four of the other drugs warn of a risk of PPH. Wyeth has already set aside nearly $17 billion for fen-phen litigation. (”Jury awards $1 billion to family of woman whose death was connected to diet drug”, AP/Court TV, Apr. 28; Reed Abelson and Jonathan D. Glater, “Texas Jury Rules Against the Maker of Fen-Phen, a Diet Drug”, New York Times, Apr. 28; Tony Freemantle, “Beaumont jury awards $1 billion in diet drug suit”, Houston Chronicle, Apr. 28). (More: Texas Lawyer). For more on fen-phen litigation, see Jan. 25, Jan. 6, Aug. 19 and links from there. For more on Beaumont, that very special jurisdiction, see Jul. 31 and many more. And for more on attorney John O’Quinn, a frequent source of material for this page, see Feb. 26 and many more.

“Plaintiff lawyers have squeezed Wyeth for billions over its faulty weight-loss drugs. Now the company is pushing back with allegations of greed and wrongdoing.” The drug maker, which has paid out $13 billion since Redux and Pondimin were pulled off the market in 1997, thinks it can refute a huge portion of the 153,000 pending claims. “They’re out to humiliate the plaintiff bar and its expert doctors by handing their evidence over to law enforcement officials and medical licensing boards.” Meanwhile, plaintiff’s lawyers are fighting bitterly among themselves over charges of inadequate class representation as well as poor case-screening (Robert Lenzner and Rob Wherry, “Bad Medicine”, Forbes, Sept. 1; Kelly Pedone, “Plaintiffs’ Lawyers Want Fen-Phen Class Counsel Tossed”, Texas Lawyer, Aug. 18)(see Sept. 27-29, 2002; May 30-Jun. 1, 2003).

“The current arrangement delivers justice at random, in widely varying amounts or not at all, depending on whether you’re feeling litigious, how good your lawyer is, or what a judge or a juror had for breakfast that day. … It is a society with an odd sense of justice that awards millions of dollars to every 25th victim of what may or may not have been a botched operation, but doesn’t guarantee basic health care to anyone.” (”The lawsuit lottery”, Slate, Jul. 10).

The Senate’s failure to invoke cloture on medical litigation reform proceeded on strict party lines, with no Democrats voting for and only two Republicans voting against, Shelby of Alabama (no surprise there) and Lindsey Graham (R-S.C.). (Helen Dewar, “Medical Malpractice Bill Dies in Senate”, Washington Post, Jul. 10). What’s with Graham? — wonders Wyeth Wire.

MedPundit Sydney Smith as usual offers omnibus coverage of the malpractice debate, including a new column of her own (”The Threat to Medical Innovation”, TechCentralStation, Jul. 11); a new study from researchers at the Agency for Healthcare Research and Quality finding that states with liability caps “experienced a more rapid increase in their supply of physicians” than states without; a funny Scrappleface satire on how doctors should start prescribing cash as a remedy for pain and suffering since that’s what the government considers suitable (Jul. 8, and read the comments); a critique of a typically benighted treatment of the subject in The American Prospect; and more (scroll down, too).

September 9-10 – Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).

It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)

September 9-10 – Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (”Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)

September 9-10 – Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)

September 9-10 – Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)

September 6-8 – “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)

September 6-8 – Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)

September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (”Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
(DURABLE LINK)

September 5 – “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)

September 5 – Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)

September 5 – A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press’s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (”Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)

September 3-4 – By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)

September 3-4 – “Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)

September 3-4 – “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)

September 3-4 – 2002’s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ’soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)

September 3-4 – A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (”Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times’s editorialists joined the chorus (”Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)

April 19-21 – Pitcher hit by line drive sues maker of baseball bat. Hurling for the Pittsfield (Ill.) High School baseball team, Daniel Hannant put one over the plate to a batter from opponent Calhoun High School, who smacked the ball in a line drive straight at the pitcher’s mound where it hit Hannant on the head. Now Hannant is suing … guess who? The maker of the baseball bat, Hillerich & Bradsby, known for its trademark Louisville Slugger. (”Lawsuit comes out swinging”, Chicago Tribune, Apr. 18) (& see letter to the editor, Jun. 14; update, Dec. 30). (DURABLE LINK)

April 19-21 – No apologies from RFK Jr. As the uproar continues in Iowa over Robert F. Kennedy Jr.’s assertion that large hog-raising operations are more of a threat to American democracy than Osama bin Laden, Kennedy’s office has sent word to the Des Moines Register not to expect an apology or retraction. (Mark Siebert, “Kennedy stands by hog-lot remark”, Apr. 18; J. R. Taylor, “To the Preening Born”, New York Press “Billboard”, Apr. 18; earlier reports on this site Apr. 15, Apr. 17). Far from being an unconsidered slip of the tongue, the comparison seems to have been a feature of Kennedy’s speeches for months, to judge from a report published back in January on another of his Midwestern swings: “This threat is greater than that in Afghanistan,” he was quoted as saying. “This is not only a threat to the environment, it is a threat to the American economy and democracy.” (Gretchen Schlosser, National Hog Farmer, Jan. 15, linked in WSJ OpinionJournal.com “Best of the Web” Jan. 21). And a staff attorney from Kennedy’s office has sent us a letter responding to our editor’s Wednesday New York Post op-ed on the affair, to which we append a fairly lengthy response — see our letters page.

MORE: The food-industry-defense group Center for Consumer Freedom has been on the warpath against Kennedy and his band of lawyers for a while. It quotes Iowa Agriculture Secretary Patty Judge as saying: “The true agenda of this group is to sue farms and take the monetary rewards back to the East Coast.” (”Trashing Pork, Cashing In”, Apr. 11). Kennedy has estimated “damages” against the industry of $13 billion: “We have lawyers with the deepest pockets, and they’ve agreed to fight the industry to the end,” he has said. “We’re going to go after all of them.” (”Kennedy’s Pork Police Hit Iowa”, Apr. 2; “Waterkeepers, Farmers Weepers”, Dec. 12, 2001) “‘We’re starting with hogs. After the hogs, then we are going after the other ones,’ referring to the poultry and beef industries.” (”Warning”, Jan. 16, 2001, citing “Concerns that pork suit may be extended to other areas,” Des Moines Register, Jan. 8, 2001). (DURABLE LINK)

April 19-21 – Traffic-cams, cont’d. In the controversy (see Apr. 8-9) over the uses and abuses of automated traffic camera systems, a reader writes in (see letters page) to say we were wrong to describe Lockheed Martin as the current contractor on the systems; it actually sold the operation last August to another company. Our apologies. And Eugene Volokh reports on his blog (Apr. 17) that he found some inaccuracies in Matt Labash’s Weekly Standard investigative series on the cameras which Labash and the Standard have been happy to correct. See also “Hawaii scraps ‘Talivan’ traffic cameras”, AP/ABC News, Apr. 11. (DURABLE LINK)

April 19-21 – Clipboard-throwing manager = $30 million clipping for grocery chain. The Ralphs supermarket chain in California had a store manager who over the course of a decade “physically and verbally abused six female Ralphs employees by calling them vulgar names, manhandling them, and throwing items like telephones, clipboards and, in one instance, a 30- to 40-pound mailbag, at them.” So a San Diego jury awarded them $5 million each in damages. (Alexei Oreskovic, “$30M Awarded in Sex Harassment Suit Against Grocery Chain”, The Recorder, Apr. 9)(& update Jul. 26-28: judge cuts total award to $8 million). (DURABLE LINK)

April 19-21 – See you … at the Big Apple Blog Bash Friday night. (DURABLE LINK)

April 18 – “Tampa Taliban” mom blames acne drug. By reader acclaim: “The family of 15-year-old Charles Bishop has filed a $70-million lawsuit against the maker of acne medication Accutane, saying nothing else explains the teenager’s suicidal flight into a downtown Tampa high-rise.” Bishop, whose father bore an Arab surname, left a suicide note praising Osama bin Laden; the county medical examiner’s office found no trace of Accutane in his bloodstream, although it says that does not rule out the possibility that he might have been on the medication, for which he had been written a prescription. Although the maker of the widely used acne drug denies that it causes psychosis or suicidal impulses, its cautious consent form “required the Bishops to agree to tell their physician ‘if anyone in the family has ever had symptoms of depression, been psychotic, attempted suicide, or had any other serious mental problems.’ Julia Bishop, however, did not reveal that in 1984, she and Charles’ estranged father failed in a bloody suicide pact during which she stabbed him with a 12-inch butcher knife.” Mrs. Bishop’s lawyer, Michael Ryan of Fort Lauderdale, calls that earlier suicide pact incident “completely irrelevant”. (Robert Farley, “Suit: Drug behind suicide flight”, St. Petersburg Times, Apr. 17; Natashia Gregoire, “Teen Pilot’s Family Sues Drug Maker”, Tampa Tribune, Apr. 17; “Accutane acne drug maker sued over suicide”, USA Today/Reuters, Apr. 16; Broward Liston and Tim Padgett, “Despair Beneath His Wings”, Time, Jan. 13; Howard Feinberg, “Is Accutane to Blame?”, TechCentralStation.com, Apr. 18; see Feb. 1). Updates: manufacturer wins first jury trial (Margaret Cronin Fisk, “Suits Probe Acne Drug, Depression”, National Law Journal, Apr. 25; Michael Fumento, “The Accutane Blame Game”, National Review Online, May 9). (DURABLE LINK)

April 18 – Judge compares class action lawyers to “squeegee boys”. A Florida judge has rejected the tentative settlement of a shareholder lawsuit filed by Milberg Weiss Bershad Hynes & Lerach against power company Florida Progress Corp. over a 1999 merger, saying the evidence indicated that the suit did not leave class members in a better position than if it had never been filed. Added Pinellas County Judge W. Douglas Baird: “This action appears to be the class litigation equivalent of the ’squeegee boys’ who used to frequent major urban intersections and who would run up to a stopped car, splash soapy water on its perfectly clean windshield and expect payment for the uninvited service of wiping it off.” (Jason Hoppin, The Recorder, Apr. 17). (DURABLE LINK)

April 18 – Welcome Humorix.org readers. The Linux-humor site started linking to us way back in 1999, if we remember correctly. Also sending us visitors lately: Auckland (N.Z.) District Law Society, Mar. 14 (”For a change of pace, spend some time with this digest of news stories … Most cases reported on are from the U.S., but there are quite a few examples from Europe, Australia, and elsewhere”); WTIC-AM Hartford, “Morning Links”, Apr. 7; American Civil Rights Union “ACLU Watch”, Nintendominion “Site Unseen”, Mar. 31; Dog Brothers Martial Arts (Hermosa Beach, Calif.), Mutual Reinsurance Bureau, Anne Klockenkemper (Univ. of Florida) Media Law Resources, Smith Freed & Eberhard P.C. (attorneys at law, Portland, Ore.), Univ. of Nevada-Reno Tau Kappa Epsilon, RKKA.org (Russian Red Army-themed wargaming); Fureyous.com, Mar. (”My dream site, a site where I can find the entire downfall of civilization due to frivolous and pathetic lawsuits and legal actions”), and many more. (DURABLE LINK)

April 17 – New York Post op-ed on RFK Jr. & hogs. Our editor has a piece today on the op-ed page of the New York Post about the furor that broke out in Iowa when celebrity environmentalist Robert F. Kennedy, Jr. told a rally that large-scale hog farms are more of a threat to America than Osama bin Laden and his terrorists. For links to the local Iowa coverage, see our item here from Monday, of which the Post op-ed is an expansion. (Walter Olson, “Osama, the Pigs and the Kennedy”, New York Post, Apr. 17).

April 16-17 – Pharmaceutical roundup. The total cost of the settlement over the diet compound fen-phen has ballooned to more than $13 billion, swollen by mass recruitment by law firms of claimants who defendants believe have suffered no ill effects from the compound at all aside from possible worry. “Wyeth’s general counsel, Louis L. Hoynes Jr., said he believes that in a different legal climate his company might have been able to settle all serious claims for less than $1 billion. That would amount to an average of $1 million each for 1,000 cases.” (L. Stuart Ditzen, “Mass diet-pill litigation inflates settlement costs to $13.2 billion”, Philadelphia Inquirer, Apr. 9 — whole article well worth reading). Lawyers for a group of British women have filed what is believed to be the first injury suit over the “third-generation” birth control pill, which they say raises the risk of blood clots, and similar suits are expected to follow in the United States (Mary Vallis, “U.K. suit targets perils of The Pill”, National Post, Mar. 5). In one of the more recent applications of the U.S. Supreme Court’s Daubert doctrine, courts have dismissed several lawsuits seeking to blame Pfizer’s anti-impotency drug Viagra for users’ heart attacks, ruling that the expert testimony in the cases was not based on scientific principles that had gained “general acceptance.” (Tom Perrotta, “Viagra Cases Dismissed”, New York Law Journal, Jan. 22). The Nov. 9, 2001 installment of CBS’s “48 Hours” launched a one-sided attack on psychiatric drugs used to treat attention deficit and hyperactivity and told the stories of two parents who say their use of the ADHD drug Adderall caused them to behave irrationally, resulting in the death of their children; but Hudson Institute fellow Michael Fumento finds that much was misstated or left out in the network’s account, including the exact role of the trial lawyers hovering in the background (Michael Fumento, “Prescription for Bias“, “Dawn Marie Branson: A Sad Story Only Half Told“) And although the U.S. Food and Drug Administration has not chosen to give a green light for the reintroduction of silicone breast implants for American women following the litigation-fueled panic that drove them from the market, they have regained popularity among women in Canada, reports the CBC (”Silicone implants back in style”, Sept. 20, 2001). (DURABLE LINK)

April 16-17 – A DMCA run-in. Tom Veal’s Stromata site, which covers topics ranging from pension regulation to science fiction, had a run-in a few days ago with its hosting service, Tripod, which abruptly closed down access to the site and then took its sweet time about reopening it. The reason? Tripod had received a nastygram from a law firm charging that Stromata was in violation of the Digital Millennium Copyright Act, not because it had posted any copyrighted material itself, but because it had linked to another site which had (it said) posted an unauthorized translation of a widely discussed piece on terrorism by Italian journalist Oriana Fallaci. Unfortunately, as Veal notes, the incentives under DMCA are for hosts to muzzle speech in haste and un-muzzle at leisure. (”Et Cetera”, Apr. 9). (DURABLE LINK)

April 16-17 – Unlikely critic of litigation. The Washington group Judicial Watch files lawsuits at a manic clip, but now its founder Larry Klayman is taking to the mails to decry our national problem of excessive litigiousness. “One may liken the overall effect of Klayman’s direct-mail sermon against frivolous lawsuits to that of a Weight Watchers commercial starring Marlon Brando or a temperance lecture given by Hunter S. Thompson.” (Tim Noah, “Larry Klayman Decries Evils of Litigation!”, Slate, Apr. 3). (DURABLE LINK)

April 15 – RFK Jr. blasted for hog farm remarks. Robert F. Kennedy Jr., the highest-profile spokesman for the developing alliance between trial lawyers and some environmentalist groups (see Dec. 7, 2000), “made an ass of himself” in remarks last weekend at a Clear Lake, Ia. rally, according to veteran Des Moines Register political columnist David Yepsen. Kennedy’s “statement that large-scale hog producers were a bigger threat to America than Osama bin Laden’s terrorists has to be one of the crudest things ever said in Iowa politics. … [Kennedy] brought his Waterkeeper’s Alliance for a rally [in Clear Lake]. It’s a group that is threatening lawsuits against livestock industries. … Rural America needs positive solutions to this problem, not the corrosive rhetoric of another out-of-state political operative or lawsuits from greedy trial lawyers. … What was one of the finest hours of this legislative session was marred by this fool from the East. … Kennedy looks to be cashing in on his family’s name. … If his name were Bob Fitzgerald, he’d be dismissed as another one of the kooks on the fringe of this debate.” Other reaction was not much more favorable: “‘You have to be a complete wandering idiot to make that statement,’ said [Luke] Kollasch [of Algona, Ia.], whose family owns several hog farms and feed and construction companies in northwest Iowa.” (Donnelle Elder, “Big hog lots called greater threat than bin Laden”, Des Moines Register, Apr. 10; “Kennedy’s outrageous rhetoric” (editorial), Apr. 11; David Yepsen, “Kennedy cashes in on family name while acting like a fool”, Apr. 14) (DURABLE LINK)

April 15 – Updates. Stories that seem to have a life of their own:

* Richard Espinosa, “who is suing the city of Escondido because his dog was attacked by a cat inside a city library, now says the attack was a hate crime.” (see Dec. 4, 2001) (”Cat attack now described as hate crime”, MSNBC, Apr. 5)

* “The Florida Legislature has partially undone a landmark Florida Supreme Court ruling issued in November that gave slip-and-fall injury victims the upper hand in lawsuits against supermarkets and other premises owners.” (see Jan. 7). The ruling had required businesses to prove they were not negligent when presented with slip-fall claims. However, trial lawyers extracted a compromise in which plaintiffs will not have to prove that a slippery material was on the floor for long enough for the store owner to have known about it. (Susan R. Miller, “Florida Legislature Passes Bill on Slip-and-Fall Cases”, Miami Daily Business Review, Mar. 27).

* “A Hays County judge has thrown out a default judgment that would have awarded $5 million to a local woman whose near-topless image was used in a national television ad for a ‘Wild Party Girls’ video without her permission. … Judge Charles Ramsay set aside the default judgment, ruling that the plaintiff had listed the wrong company in the lawsuit, and that the video’s makers were not either properly named or properly served.” (see Mar. 6-7) (Carol Coughlin, “Topless suit is groundless, judge rules”, San Marcos (Tex.) Daily Record, Mar. 30).

* More on the symbiotic relationship between state attorneys general and Microsoft competitors (see Apr. 3-4): “An April 2000 e-mail message from the Utah attorney general’s office to Novell, revealed in court, asked for ‘guidance … preferably without involving too many people seeing this language.’” (Declan McCullagh, “Report: MS Foes Bribed Attorneys”, Wired News, Apr. 6). (DURABLE LINK)

April 12-14 – Hey, no fair talking about the pot. During a 20-hour trip from California to Texas pulling a U-Haul trailer, three young women work their way through a bag of marijuana. Of course the ensuing rollover accident is, like, practically totally the fault of their Firestone tires and the U-Haul company, or at least so their lawyers argue in a suit against those companies, even though the tires did not suffer the “tread separation” that has heretofore been seen as the distinctive source of accident risk with the now-recalled Firestones. Now Matagorda County, Tex. Judge Craig Estlinbaum has declared a mistrial at the request of plaintiff’s lawyer Mikal Watts who complained that defense attorney Morgan Copeland “had breached a pretrial order by introducing detailed evidence of marijuana use” during the trip. If we read the AP story correctly, Judge Estlinbaum had ruled that the defense could mention only that portion of the marijuana it could prove the driver consumed, and attorney Copeland, who may now face sanctions in the famously pro-plaintiff county, had improperly let jurors know about the whole bag. The Ford Motor Co. was also named as a defendant but has already settled out of the case (”Texas judge declares mistrial in Firestone case”, Yahoo/ Reuters, Apr. 5; Pam Easton, “Judge declares Firestone mistrial”, AP/ MySanAntonio.com, Apr. 6). Update — additional coverage of ruling: Miriam Rozen, “Mistrial declared in Firestone case”, Texas Lawyer, Apr. 15).

April 12-14 – In the line of fire. Post-Enron, many companies feel the need to seek out savvier and more experienced executives to sit on boards and audit committees, but with escalating fears of personal liability “attracting talent may become nearly impossible. ‘Recruiting directors for the audit committee is like calling them on deck for a kamikaze attack,’ quips [corporate finance officer Bob] Williamson.” (Marie Leone, “Audit Committee? Thanks, But No Thanks”, CFO Magazine, Apr. 5).

April 12-14 – L.A. police sued, and sued. The family of the late James Allen Beck, who died in a fiery shootout with L.A. sheriff’s deputies last August after barricading himself in his home, has filed a wrongful death claim against the sheriff’s department. During the standoff Beck, an ex-police officer with a history of stockpiling weapons at his home, shot and killed Deputy Hagop Kuredjian. (”Mother of gunman who died in shootout files claim”, Sacramento Bee, Apr. 10)(& see Feb. 23, 2000). And: “Heirs of the late rap star Notorious B.I.G. have filed a wrongful death and federal civil rights lawsuit against Los Angeles Police Chief Bernard Parks, two former chiefs and the city of Los Angeles, claiming they did not do enough to prevent the rapper’s death five years ago in a drive-by shooting.” (”Notorious B.I.G. heirs sue LAPD, officials, city”, CNN, Apr. 11).

April 11 – Don’t ban therapeutic cloning. Though not usually the petition-signing types, we (our editor) have signed a petition being circulated by Virginia Postrel’s just-launched Franklin Society opposing the current stampede in Congress to ban all scientific use of cloned human cells including “therapeutic” (non-reproductive) uses, and even the use of imported pharmaceuticals developed via such methods (see “Criminalizing Science” (symposium), Reason, Nov.). If you agree with us that this proposed law is a bad idea, you can sign the petition here and view the list of distinguished signers: despite efforts in some conservative quarters to hand down a party line opposing this potentially life-saving branch of biomedical research, support for it in fact cuts across the political spectrum. For information on contacting elected representatives, see InstaPundit, Apr. 10. (DURABLE LINK)

April 11 – Texas doctors’ work stoppage. Monday’s one-day work stoppage by South Texas doctors outraged at spiraling malpractice costs (see Mar. 15-17) drew national attention (”Texas docs protest malpractice claims”, AP/CNN, Apr. 8; see also Dean Reynolds, “Crushing Cost of Insurance”, ABCNews.com, Mar. 5 (Nev., Pa.)). And a Florida physician has launched an insurance policy for doctors “that aims to provide them with the legal resources they would need to countersue lawyers or expert witnesses filing frivolous lawsuits”. (Tanya Albert, “Frivolous suits feel wrath of Medical Justice”, American Medical News, Feb. 11). (DURABLE LINK)

April 11 – Batch of reader letters. Topics include the “pedal-extender” suit against Ford; what happened to attorney Alan Wolk’s suit against posters who criticized him on AvWeb?; OxyContin; suing food companies for waistline problems; police getting ticketed while responding to calls; laws mandating handicap accessibility in private homes; and why schools would send kids home when they have a slight sniffle. One writer upbraids blogger Natalie Solent for thinking it crazy to impose strict product liability on British blood suppliers that currently offer their services free of charge to patients; he thinks she (and by extension we) must not have stopped to consider that blood transfusions can transmit lethal diseases like AIDS and hepatitis.

Best of all, we hear from attorney Jack Thompson, the anti-videogame crusader who has just filed a lawsuit claiming that Sony’s EverQuest game is responsible for the suicide of a user, and he turns out to be every bit as suave and ingratiating as we dared hope (”go to Afghanistan where your anarchist, pro-drug views will be greatly rewarded”), though we wonder whether he caught the phrase “as if” in our original Apr. 3 posting. Mr. Thompson will probably not appreciate Eugene Volokh’s new satirical piece for TechCentralStation.com (”Worse than Internet Addiction”, Apr. 10). (DURABLE LINK)