Greetings, Overlawyered readers. I’m your other post-Christmas guestblogger, Skip Oliva. I’m not a lawyer, but I do write about legal subjects. For the past four years, I’ve run the Voluntary Trade Council, a public policy group that focuses on antitrust regulation. I maintain VTC’s weblog as well as write for the Mises Economics Blog. During my stint here I’ll be discussing some of the more interesting antitrust cases from the past year.
Post-Christmas Guestblogging
Hi — I’m one of your two post-Christmas guestbloggers. I’m a defense attorney in the San Francisco office of Shook, Hardy & Bacon, LLP, and I also write a blog called “Lowering the Bar,” which is a legal-humor site, for which, I hasten to add, SHB is not responsible. I have some experience with the unnecessary-lawsuit kind of story in particular, and I think I’ll be starting today with a recent California lawsuit against grilled chicken. Should have that posted in the next hour or so. Anyway, I look forward to blogging here for the next week. Thanks to Walter and Ted for the opportunity.
UK patient: doc hurt my feelings by telling me to quit smoking
And she wins about $80,000 (plus attorneys’ fees) for her hurt feelings. Mrs. G delayed her caesarean a few minutes to have a pre-op cigarette; her coughing made her epidural more difficult, and Mrs. G and was criticized by anesthesiologist Dr. A, who noted the increased likelihood of surviving to see her daughter’s wedding if Mrs. G quit smoking. (Arthur Martin, “Doctor’s smoking jibe wins mother £44,000 payout”, Daily Mail, Dec. 21; Kevin MD blog). UK medical compensation has grown 30,000 percent in under ten years. The Daily Mail story also notes:
An employment tribunal heard that David Portman, 27, took 137 days off over a five-year period because of a series of ‘unfortunate accidents’.
When he took yet another week off because of his pet’s demise, bosses decided enough was enough and sacked him.
But Mr Portman won his claim for unfair dismissal – and this week walked away with undisclosed compensation reckoned to be at least £10,000.
The tribunal ruled his absences from work were all legitimate and mostly caused by injuries suffered in the course of his duties.
Mr Portman, who was based with Royal Mail in Sheffield, put his months off duty down to bad luck.
‘I felt really aggrieved when I was sacked without them taking into account my particular circumstances,’ he said.
My own thoughts on Tyler v. Carter
Regarding our recent post, David Giacalone takes issue with our “recycling of stale pro se cases.” If I may defend our site:
Thank You and Good Night
Given that home and hearth will likely keep me distracted throughout December 25, I have pre-posted this parting message:
Thank you to Walter Olson for the opportunity to guestblog here over the past week. Thank you to Ted Frank for sharing the space. And thank you to Overlawyered readers for reading my posts here. Walter has additional top quality guestblogging in store to see you through to the New Year. Since he hasn’t shared the secret with me, I will be checking in bright and early Tuesday to learn who it might be. I encourage you to do the same.
It has been a pleasure doing justice with you.
Chapman v. Ford Motor Co.: McMath speaks
Plaintiffs’ attorney Sandy McMath responds in the comments to our discussion of the Chapman v. Ford Motor Co. case. Note particularly the bait-and-switch that assumes Overlawyered readers are innumerate.
As Seen on TV: Why Americans Hate, and Yet Love and Trust, Those Pesky Lawyers
UCLA School of Law professor emeritus Michael Asimow has published a paper pondering an apparent contradiction in American’s views of lawyers and the adversary system:
Lawyers and lay people in the United States generally believe that the adversary system is the best way to deliver justice in a civil or criminal trial. Broadly speaking, adversarial procedure leaves most critical pre-trial and trial decisions such as discovery, the framing of issues, choice of witnesses, the questions directed to witnesses, and the order of proof in the hands of lawyers. The central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, each zealously representing the interests of their clients, generates the information upon which a neutral and passive decisionmaker can most justly resolve a dispute. In contrast, legal systems outside the Anglo-American world employ inquisitorial pre-trial and trial procedures that leave critical elements of the process under the control of a judge rather than the attorneys.
* * *
The unquestioned dominance of the adversarial system seems paradoxical because the general public despises and distrusts lawyers. In an ABA poll conducted by M/A/R/C Research, only 14% of the public were extremely or very confident in lawyers and 42% were only slightly or not all confident. People had far more confidence in judges: 32% were extremely or very confident in judges and only 22% had slight or no confidence in judges. Why, therefore, would people want to turn over something as important as control of the pre-trial and trial processes to lawyers whom they thoroughly distrust, rather than to judges whom they distrust much less? Why would they prefer a system whose objective is to generate ‘trial truth’ rather than real truth, substantive justice rather than procedural justice? This article speculates about some possible solutions to these puzzles. [Footnotes omitted; emphasis in original.]
Professor Asimow suggests that attitudes toward the real life adversary system have long been shaped by the stories of purely fictitious advocates. "Popular culture has taught us that the adversarial system uncovers the truth about past events. According to familiar pop culture narratives that we absorb from the cradle onward, lawyers working within an adversary system are champions of justice and liberty."
Asimow’s Exhibit A is the greatest criminal defender of them all, Perry Mason. Exhibit B? A rather less polished upstart from the outer boroughs of New York:
A staple of lawyer movies is the brilliant cross-examination that destroys a lying, deceptive or mistaken witness and reveals the truth. Although many such movies are instantly forgettable, some are exceptionally vivid. Just to name a couple, take the immortal My Cousin Vinny. Vinny Gambini has recently passed the New York bar exam (after numerous failures) before traveling to Alabama to defend his young cousin and a friend in a murder trial. Vinny is clueless about Alabama culture and criminal procedure, but nevertheless morphs into a brilliant trial lawyer. His cross-examinations are devastating. For example, one eye-witness claims he saw the two ‘utes’ enter the Sack o’ Suds grocery store and exit five minutes later in a green car. He knows it was five minutes because he looked up just as he started and just as he finished cooking his morning grits. Vinny points out that in the rest of the grit-eating world, it takes 20 minutes to cook grits. The witness is destroyed. Vinny also deploys his girlfriend Mona Lisa Vitto, an unemployed hairdresser, as an expert witness on auto mechanics to devastating effect. This scene effectively validates the existing system of partisan expert witnesses. [Footnotes omitted.]
The entire paper, (M. Asimow, "Popular Culture and the Adversary System"), with many more examples, can be downloaded as a PDF from Social Science Research Network. Link via Christine Corcos at the Law & Humanities Blog ("Michael Asimow on the Image of the Adversarial System in Popular Culture," Dec. 1).
Lawsuit: I should be allowed to anoint cubicles with olive oil
Evelyne Micky Shatkin worked at University of Texas at Arlington, where she had had a series of disputes with a co-worker, which after mediation, resulted an ultimatum from Human Resources: further problems could get you fired. Not satisfied, Shatkin held an after-work “prayer session”, where, with another employee, Linda Shifflett, “anointed” the absent co-worker’s cubicle with olive oil, purportedly because of fears that the co-worker was demonically oppressed, chanting “You vicious evil dogs. Get the hell out of here in the name of Jesus. … I command you to leave.” A third male co-worker, who had agreed to participate in the prayer, became uncomfortable with the use of monounsaturated fats, and reported the matter. The other two, acknowledging that the third was not an active participant, were fired, and are now suing, claiming religious discrimination (as well as age and sex discrimination because the third worker was not fired). (Eva-Marie Ayala”Women said peer was ‘demonically oppressed'”, Fort Worth Star-Telegam, Dec. 23; AP, Dec. 23). Shame on the Liberty Legal Institute for bringing the suit.
GAO Report: “Science, Business, Regulatory and Intellectual Property Issues Cited as Hampering Drug Development Efforts”
A new report from Congress’s Government Accountability Office — am I the only one who didn’t notice that it changed its name from "General Accounting Office" over two years ago? — attempts to determine why the number of actual applications for approval of new drugs has increased at a much slower rate than the increase in pharmaceutical industry research and development expenditures.
Per the GAO panelists, "conflicting pressures of avoiding risk and producing a high return on investment" combine to curtail the development of the most innovative new drugs:
[C]ompanies prefer to produce drugs that require little risk taking but still offer the potential for high revenues. This strategy has created an emphasis on producing ‘me too’ drugs — drugs which have a very similar chemical formulation to drugs already on the market. These drugs are less risky to develop because the safety and efficacy of the drugs on which they are based have already been studied. According to one panelist, an industry representative, because the length, complexity, and expense of developing a single drug have all increased dramatically over the last 10 to 15 years, companies must choose fewer drugs to develop. As a result, they will often follow a business model that involves choosing drugs that are easy to develop, with a large market that will produce a large return on investment.
Another factor cited is "sponsors’ uncertainty over how they are to implement requirements for the safety and efficacy of new drugs." The report notes
general agreement that the lack of precise FDA regulatory standards that outline what constitutes a safe and effective drug is a factor when making drug development decisions — weighing the safety of drugs against their potential therapeutic benefits. Panelists generally agreed that because there are no precise standards for making these decisions, sponsors and FDA must address them on a case-by-case basis. As a result, it was indicated that this uncertainty may lead a drug sponsor to abandon a drug rather than risk significant development expenditures.
While product liability litigation is not mentioned in the report by name, it clearly factors in to the industry’s aversion to "risk." Moreover, at least some of the uncertainty and extra-cautious attitudes within the FDA can be traced to highly publicized — and heavily litigated — withdrawals of drugs based on safety concerns:
* * * Some analysts have reported that safety concerns during the 1990s — which led FDA to request that manufacturers withdraw pharmaceuticals including fenfluramine and dexfenfluramine (known as Fen-Phen) in 1997, Propulsid and Rezulin in 2000, and Baycol in 2001 — impacted FDA’s review requirements. For example, a 2004 report completed for the European Commission — the executive body of the European Union — found that the withdrawals of these pharmaceuticals from the market affected FDA’s implementation of its regulatory standards. According to this study, FDA began to demand more complex clinical trials that called for more testing on: (1) how drugs interact with each other, (2) the effect of drugs on liver toxicity, and (3) the relationship of drugs to cardiac risk. In addition, according to several drug development experts and some industry analysts, FDA has been requiring more lengthy and complex clinical trials, which call for more patients and increased costs. . . .
Commenting on the GAO report, Ronald Bailey (Reason Magazine, Hit & Run, "What’s to Blame for Fewer New Pharmaceuticals?," Dec. 20) summarizes:
Why have FDA regulators become more cautious? Because, as Harvard Business School professor Regina Herzlinger explains in her May, 2006 article, Why Innovation in Health Care is So Hard (not online): ‘Officials know they will be punished by the public and politicians more for underregulating — approving a harmful drug, say — than for tightening the approval process, even if so doing so delays a useful innovation.’
I will venture to suggest that the FDA’s increased obsession with safety may be killing more people than it saves. How about a GAO study on that question? After all, if it takes the FDA ten years to approve a drug that saves 20,000 lives per year that means that 200,000 people died in the meantime.
The full GAO report, "New Drug Development: Science, Business, Regulatory and Intellectual Property Issues Cited as Hampering Drug Development Efforts," is available for viewing and download here [PDF].
Lerach v. Wall Street Journal
Via Peter Lattman, Bill Lerach, unhappy with press coverage of an embarrassing defeat in an attempt to blackmail companies with meritless (but highly risky) litigation over Enron, sends the WSJ a nastygram, and the WSJ responds.