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Wyeth

The media and legal academy largely applauded the Supreme Court’s 2009 ruling on preemption, but Michael Greve deems its outcome “irresponsible and not even minimally rational”:

Under the Federal Food Drug and Cosmetics Act (FDCA), drugs sold in the United States require an FDA-approved label—the elaborate, incomprehensible (to laymen) sheets you find inside every package. Every sentence is dictated by FDA requirements, down to the font and letter size. Violations of these requirements, and the sale of drugs without the label or a different label, are subject to very severe penalties. The statutory scheme operates to the explicit exclusion of any state regulatory (administrative) scheme. What Wyeth asks us to believe is that state juries may nonetheless hold drug manufacturers liable, for accidents caused by use in direct contravention of the federal label, on the grounds that the federally required label was inadequate. Meticulous compliance with federal requirements doesn’t preempt “failure to warn” liability under state common law.

James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.

P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.

Now that its settled that every jury should be a new regulator deciding in hindsight whether label warnings should have been stronger, some who worry about the future of the drug business are inclined to feel nauseous. Resist that feeling, points out emergency room blogger White Coat: should your condition grow so severe as to call for medical attention, the arsenal of antiemetic treatments available to doctors keeps dwindling under the legal pressure.

P.S. More: Throckmorton’s Other Signs. And, from before the decision, from Yale-affiliated neurologist Peter McAllister in the Providence Journal.

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Wyeth v. Levine

by Ted Frank on March 4, 2009

After the Wyeth v. Levine argument, I worried that the Supreme Court might decide the case on such narrow grounds that it would do little good to confront the problem of trial-lawyer abuse. I now see I wasn’t nearly pessimistic enough.

We can put the nail in the coffin in the idea that this is a pro-business Supreme Court: the 6-3 Wyeth v. Levine decision is the worst anti-business decision since United States v. Von’s Grocery, 384 U.S. 270 (1966). Justice Thomas’s confused concurring opinion is especially disappointing, as it declares an abdication of the Supreme Court’s appropriate structural role to prevent individual states from expropriating the gains from interstate commerce.

Sell your pharmaceutical stocks now, because the Supreme Court just declared it open season on productive business. One should now fear the coming decision in the as-yet-to-be-briefed Clearinghouse v. Cuomo, and the effect that is going to have on an already battered banking economy, as well.

Beck and Herrmann have first thoughts, but are likely to be relatively quiet thereafter.

Update, as Walter points out in the comments, see also Andrew Grossman’s post at Point of Law, and the earlier coverage at that site by numerous authors, dating back to when the case first began making headlines.

Contrary to the suggestion of Justice Thomas, Dan Fisher, this is not a “victory for federalism” by any stretch of the imagination: federalism is a two-way street, and permitting states to impair interstate commerce through a litigation tax upsets the federalist structure of the Constitution. See, e.g., Epstein and Greve.

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Mississippi:

The 5th U.S. Circuit Court of Appeals on Monday upheld the conviction of Vicksburg lawyer Robert Arledge, convicted of bilking the drug company Wyeth of more than $6.7 million over the diet drug Fen-Phen….

U.S. District Judge David Bramlette sentenced Arledge to six years in prison for knowingly allowing clients to make claims of about $250,000 each for health complications although they had no legitimate reason.

Seems it was a clergy scandal as well as a lawyer scandal:

Regina Reed Green of Fayette, who pleaded guilty to tax evasion involving false Fen-Phen claims, testified Arledge knew about the scheme to defraud the drug company. She said he told her every resident of 9,740-population Jefferson County would get $1 million.

“The evidence showed that when Green became concerned that she might be caught fabricating the prescriptions and expressed a desire to stop her illegal activity, she contacted (the Rev. Gregory) Warren,” the appeals court wrote. “Warren tried to convince Green to continue fabricating the prescriptions, but Green was not assuaged.”

Green testified Arledge persuaded her to continue: “And he said … I wasn’t going to get in any trouble because like (Warren) said, they were going to box all those files up, put them away, and never be seen again.”

Earlier coverage here, here, and here (via).

The Chicago lawprof discusses the pending Supreme Court case on implied pre-emption:

…it is folly to act as if the private lawsuits attacking FDA warnings just backstop a porous and lax FDA. Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs. That risk is multiplied by hyperventilated state tort law that, in many instances, is lopsidedly pro-plaintiff.

(“Wyeth v. Levine Could Endanger Your Health”, Forbes, Nov. 11). Much more on the debate at Point of Law here, here, here, etc.

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February 23 roundup

by Ted Frank on February 23, 2008

  • 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]

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(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.

[click to continue…]

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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

October 12 roundup

by Walter Olson on October 12, 2007

  • 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.

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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)

Turning over the e-mail

by Ted Frank on January 31, 2006

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.

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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.

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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).

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“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).

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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)