Daubert

It’s the tenth anniversary (plus four days) of the Daubert v. Merrill Dow Pharmaceuticals opinion that limited in federal trials the use of expert testimony that is not scientifically reliable. Peter Nordberg’s Daubert on the Web is one of the more comprehensive sites on the web on any subject; he has started a blog that promises to be fascinating.

Along with recent Supreme Court jurisprudence on punitive damages in cases such as BMW v. Gore and the expansion of interlocutory review of class action certification, Daubert has been one of the few brakes on the expansion of tort liability in the last ten years. As my former Brandeis colleague and GMU Law professor David Bernstein points out, however, Daubert did not stop the use of junk science to extract billions from breast implant manufacturers, and now some of that money is being used to fund efforts to weaken Daubert.

Filed under: Daubert, junk science, procedure

In honor of Canada Day

The Loewen Group is a Canadian funeral home company that was the victim of a runaway Mississippi jury that held it liable for $500 million in damages in 1995 for ostensible antitrust damage to a local funeral home company worth less than $10 million. The company could not post the $625 million bond that was a prerequisite for appeal, and was forced to settle for $175 million. Loewen sued the US under NAFTA provisions prohibiting discrimination against foreign investors. The tribunal called the verdict a “disgrace,” but held that it was not a violation of NAFTA.

Filed under: antitrust, Canada, Mississippi

Nike v. Kasky

Professor Volokh, of the Volokh Conspiracy, on the Nike v. Kasky case. Under a 4-3 California Supreme Court decision, Nike is potentially liable to any California citizen if its response to political speech criticizing Nike is deemed “misleading.”
(Full disclosure: Walter Dellinger of my law firm filed a U.S. Supreme Court brief on behalf of Nike.)

Filed under: California, free speech, s. 17200

Gun store suit

DC sniper Lee Malvo shoplifted the rifle he used from a Tacoma store, which is now subject to a lawsuit, as is Bushmaster Firearms, the gun manufacturer that sold the rifle to the store. (And why not the coal miners that supplied the steel manufacturers that supplied Bushmaster Firearms?). Update Sept. 25, 2004: case settles.

Filed under: guns, Seattle

Big Food Next?

The first lawsuits against fatty-food sellers were justifiably the subject of parody, but a few months later, without plaintiffs having won a single case, a USA Today front-page article treats the idea of big damages awards as a near-inevitable outcome, quoting two plaintiffs’ lawyers, and without a single quote from anyone suggesting that such lawsuits may not be good public policy. Such coverage has a tendency, of course, to be a self-fulfilling prophecy.

Filed under: media bias, obesity

Milberg Weiss Update

Famed plaintiffs’ firm Milberg Weiss, rather than risk a motion for sanctions, settled a case and agreed never to sue Titan International again. The firm, the subject of a fawning New Yorker article a few months back, recently announced that it would split. Federal authorities in Los Angeles are investigating whether the firm paid shareholders to participate in lawsuits.

Filed under: class actions, Milberg Weiss

Ted Frank, guest blogger

Greetings. My name is Ted Frank, and I’m honored to be your guest blogger for the week. I’m a former clerk for Judge Easterbrook and am currently practicing law as counsel in a Washington, D.C., firm, often on behalf of clients who are dealing with the types of lawsuits that Walter Olson has catalogued here for years.

Speaking of Judge Easterbrook, here is his opinion in McMahon v. Bunn-O-Matic, a classic variant of the plaintiff-who-spills-hot-coffee case.

Filed under: Frank Easterbrook, guestbloggers, hot coffee

Guest blogger through July 8

I’ll be on vacation for the next week. If all goes as planned, a guest blogger should be stepping in momentarily to fill the gap. An outstanding group of volunteers offered their services, and you should be seeing some of their names as guest bloggers over the coming months. See you next Wednesday.

Filed under: guestbloggers

“60 Minutes” on wrongful birth

The CBS show takes a look at the Jade Fields case from New Jersey, which we covered last July (Jul. 1-2, 2002; Aug. 22-23, 2001 and links from there). The show interviews an ultrasound specialist who “has testified as an expert witness in many wrongful birth cases for both doctors and patients” and who appears to doubt that the doctors’ supposed inattention to danger signs was in fact malpractice. Also on camera is the girl’s mother who insists that “Jade is the best thing that could have ever happened to us” but also says in the lawsuit that she would have aborted the girl in a moment had the extent of her disabilities been clear. The show gives the plaintiff’s lawyer the last word (CBS News, “Is ‘Wrongful Birth’ Malpractice?”, Jun. 23).

Filed under: family law, medical, New Jersey, wrongful birth and wrongful life

Souvenir-ball wrangle

A baseball story: “Alex Popov and Patrick Hayashi scrambled in the stands for Barry Bonds’ No. 73 home run ball, fought in court over it, and walked away after its auction for $450,000 Wednesday with nothing but bittersweet memories. … A couple hundred grand for each side’s lawyers, a cut for Uncle Sam and sundry expenses. What’s left for Popov and Hayashi? ‘In the end it’s probably going to be a wash,’ Hayashi said.” (Steve Wilstein, “Bonds No. 73 ball: a story of greed”, AP/San Francisco Chronicle, Jun. 26). (& see Jul. 12: lawyer sues Popov for fees). Update Jan. 3: Hayashi’s lawyers waive part of fees.

Filed under: baseball, sports