Overlawyered: Chronicling The High Cost Of Our Legal System

Ernst v. Merck Vioxx trial to begin in Texas

Merck withdrew the painkiller Vioxx from the market when a study showed that it increased the risk of heart attack and stroke after eighteen months of use. 59-year-old Robert Ernst died suddenly of arrhythmia after taking Vioxx for seven months. No studies connect Vioxx to arrhythmia, but press coverage of the Brazoria County case, the first Vioxx products liability case to go to trial, has focused on the widow’s love for her husband rather than the lack of scientific controversy or asking why this case is going to trial at all. (Most press accounts repeat Carole Ernst’s claim that her husband was perfectly healthy; only the AP and USA Today mention in passing that Ernst’s autopsy showed atherosclerosis: two arteries partially blocked with plaque.)

Attorney Mark Lanier’s jaw-dropping theory, noted without rebuttal by the AP: “Mr. Lanier’s team says sudden death doesn’t leave enough time for the heart muscle to show whether Vioxx caused any damage.” The lack of evidence of damage is just proof of how insidious the drug is! As we noted on July 1, Lanier (Dec. 23, 2003) doesn’t seem interested in proving causation beyond innuendo. If you look through the press accounts, note especially the AP’s dramatically staged photo of Lanier in the New York Times: the case must be scientific because of all the pathology textbooks in the foreground of the shot! (Alex Berenson, “First Vioxx Suit: Entryway Into a Legal Labyrinth?”, NY Times, Jul. 11; Kristen Hays, “Jury selection to begin in Vioxx case”, AP, Jul. 10; Dana Calvo, “Vioxx Trial Could Set Precedent for Merck”, LA Times, Jul. 11; Richard Stewart, “Motion challenges plaintiff’s experts”, Houston Chronicle, Jul. 11; Kevin McCoy, “Merck to face first Vioxx trial before Texas jury next month”, USA Today, Jun. 30; Kristen Hays, “Lawyers gear up for first Vioxx suit against Merck”, AP/St. Louis Post-Dispatch, Jun. 28).

Read On…

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Judge: radio hosts’ talk must be reported as campaign contribution

In a decision some critics said could threaten press rights, a Washington state judge ruled last week that two radio hosts’ on-air comments promoting an anti-gas-tax initiative should be considered in-kind campaign contributions.

Thurston County Superior Judge Christopher Wickham on July 1 ordered sponsors of Initiative 912 to report the value of comments by KVI Radio talk-show hosts John Carlson and Kirby Wilbur.

Lawyers for NoNewGasTax.com, which is sponsoring the initiative, said the ruling would have a chilling effect on political commentary and editorials in the news media. They said an appeal was possible.

(“Radio hosts’ on-air backing must be reported as campaign donation”, AP/First Amendment Center, Jul. 7; Brad Shannon, “Ruling throws media for a curve”, Jul. 10). The Seattle Times expressed alarm at the decision (“In support of free speech, and KVI” (editorial), Jul. 8) while the Post-Intelligencer, incredibly, applauded it (“Gas-tax Talk: Jabber over journalism” (editorial), Jul. 6). For more on campaign finance law vs. free speech, see Jun. 14 and links from there. More: Michelle Malkin, Jul. 9 and Jul. 12; Ryan Sager, “The ‘Shut-’em-up’ Reform”, New York Post, Jul. 12.

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Unsuccessfully sues fellow skier

“A federal jury found yesterday that Sarah Walker, an aspiring model and ski instructor, was mostly to blame for a skiing accident at Loon Mountain in Lincoln, N.H., and refused to award her any money for injuries she said had derailed her modeling career.” Walker had sued 16-year-old Megan Lowry of Boxford, Mass. for alleged negligence in a collision of the two on the slopes; she also named Lowry’s parents as defendants, but a judge threw out that part of the claim before trial. (Shelley Murphy, “Ski crash model’s own fault, jury finds”, Boston Globe, Jun. 30). Wave Maker comments.

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Convicted Arsonist Sues Over Denial of College Football Privileges

Sione Havili was convicted of felony arson. He pled guilty to tossing two plastic jugs filled with gasoline into a home. After serving his time, he wanted to play college football, like any average kid. Utah school officials denied him his right to play football and have now been sued. (“Former running back sues Utah AD, former president,” MSNBC Jul. 10.) [Cross-posted at SoCalLawBlog]. Good for Utah. Torching someone’s house is just plain wrong.

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$65.1 million verdict in Florida

Twelve-year-old Jorge Luis Cabrera Jr. was found dead next to a Miami bus shelter in October 1998 after he took shelter there during a rainstorm. Weather data shows a lightning strike near the bus shelter at the time the boy would have been there; the defense claims there were several signs of an indirect lightning hit on the Cabrera’s body and clothing. Accusations were made that faulty wiring in the bus shelter electrocuted the boy, but employees of Eller Media, which owned the bus shelter, were acquitted of manslaughter charges.

Civil lawyers resuscitated the argument on behalf of Cabrera’s father, noting that Victor Garcia, who wired the shelter, was unlicensed. A jury agreed, and awarded $4.1 million in compensatory and $61 million in punitive damages; Cabrera’s mother settled separately. “Jose Irizarry, the jury foreman, told The Herald on Friday that he and his fellow jurors did not believe lightning could have killed the boy.” (David Ovalle, “Firm to pay millions in boy’s death”, Miami Herald, Jun. 25; “Jury: Eller Media should pay $65.1M”, South Florida Business Journal, Jun. 27; Chrystian Tejedor, “Jury awards $65.1 million”, South Florida Sun-Sentinel, Jun. 25; “Company Found Negligent In Boy’s Electrocution Death”, WTVJ-TV; “Unlicensed Electrician Admits ‘Regret’ In Boy’s Electrocution Trial”, Local 10 News, May 3; Colson Hicks Eidson press release; verdict form for Serrano v. Eller Media Co., Case No. 13-1998-CA-023808-0000-01 (Dade Cty. Fla. Cir. Ct.)).

Risibly unclear on the concept: the Miami Herald reports that “Today, more than 850 Miami-Dade Transit Authority bus shelters are lit by roof-mounted solar panels instead of electricity.” (I think they mean to say that the new bus shelters are lower voltage.)

Read On…

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“Malpractice Fears Color Mammogram Readings”

Radiologists order more repeat mammographies and more biopsies because of fears of malpractice claims, according to a study in the July issue of Radiology. “The recall rate in the U.S. is much higher than in other countries,” said study co-author Dr. Joann G. Elmore, an associate professor of medicine at the University of Washington. (Kathleen Doheny, HealthDay/Forbes, Jun. 28). See Jun. 14, 2004.

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Heather Mac Donald on Dahlia Lithwick

Dahlia Lithwick got her start in Slate with the innovation of covering the Supreme Court almost entirely in terms of what jokes were told at the oral argument. Now, gossipy legal humor has entertainment value, and Lithwick’s essays had a legitimate role in the context of providing added value for an Internet magazine whose main advantage over competing media sources was the ability to put writing out there in a breezier and quicker fashion than a newspaper. But the legal analysis was often slipshod, and Lithwick would freely admit her ignorance and instead focus on which Supreme Court Justice she’d most like to hug or the build of the lawyers. Yet Lithwick has parlayed being the Slate “Supreme Court correspondent” into a regular gig doing serious analysis and op-eds in purportedly more serious media outlets. The results often aren’t pretty. Heather Mac Donald puts her thumb precisely on the problem and points out how vapid Lithwick’s analysis of Justice O’Connor’s career is (via Point of Law). Lithwick makes the mistake of criticizing O’Connor’s decisions as lacking sufficient empathy for the sympathetic losing party (though, as Mac Donald points out, Lithwick’s sympathy is inconsistent within the same paragraph in the op-ed). Legal reporting all too often has the flaw of describing cases as a question of picking the most deserving winner, divorcing this question from the real issue of the neutral application of legal rules; this is a problem that all too often trickles down to some judges and jury decisions. And it’s a sad commentary on the state of legal education when a Stanford Law graduate doesn’t give any signs of knowing better.

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Hospital sued for fainting dad

While his wife, Jeanette Passalaqua, was giving birth, Steven fainted in the delivery room, fracturing his skull and dying two days later. This is, says the family, the fault of Kaiser Foundation Hospitals and Southern California Permanente Medical Group Inc. “‘This avoidable tragedy was a direct result of Kaiser’s ordinary negligence in failing to exercise reasonable care to prevent foreseeable injuries to Steven,’ according to the suit, which was filed last week in San Bernardino County Superior Court.” So if your maternity ward is rubber-padded next time you go there, you know why. (AP, Jul. 8).

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