“Science Favors J&J in Talcum Powder Lawsuits”

For years lawyers have been suing Johnson & Johnson claiming that its baby powder has caused ovarian cancer, a theory that has mostly met with failure in court. This summer, however, a St. Louis jury found liability and ordered the company to pay $4.69 billion, on a related theory that asbestos contaminants in the product (as opposed to talc itself) caused the disease. On December 14 Reuters followed with a lengthy piece laying out, and implicitly siding with, the plaintiff lawyers’ accusations; the piece drew wide publicity, and the company’s shares sank by about $50 billion. Some analysts have written that J&J’s lawsuit payouts on the issue could reach $20 billion.

Now a leading business columnist has explained why he doubts that outcome. “Why? Because whether or not the company’s talcum powder contains asbestos, and whether or not it hid that fact from the public, the science remains firmly on J&J’s side.” [Joe Nocera, Bloomberg] How so? “There is no evidence that women who use talcum powder are any more likely to get ovarian cancer than women who don’t. In both California and New Jersey, judges have tossed out cases on exactly this basis.” So while plaintiffs make the most of their dark imputations of a cover-up, what they haven’t shown is that women who used the baby powder are any more likely to contract cancer than those who did not. Nocera: “And this is one mass tort where I’m convinced the science is going to win.”

Meanwhile, Mark Lanier, the Texas-based lawyer who won the St. Louis verdict, freely agrees that his efforts have helped affect J&J’s stock price. “It serves my purposes as a litigator to say, ‘Yes, get their attention; keep driving the stock down.'” [Matthew J. Belvedere, CNBC] And: “New York’s specialized court for asbestos lawsuits could become a pivotal battleground for litigation over talcum powder as plaintiff lawyers seek to establish a record of wins in a court system known for liberal rules and big jury verdicts.” [Daniel Fisher, Forbes]

Filed under: asbestos, Mark Lanier, product liability, toxic torts

Occupational licensure roundup

New report estimates state and national economic costs of occupational licensing [Morris Kleiner and Evgeny Vorotnikov, Institute for Justice] Reform efforts proceed at both state and federal levels [Angela Erickson, Cato Policy Report] Another study: licensing reduces labor supply significantly [Peter Blair and Bobby Chung, NBER]
Cosmetology schools serve as lobbying force behind high prerequisites before newcomers can practice in field [Meredith Kolodner and Sarah Butrymowicz, New York Times]
“Occupational Licensing and Accountant Quality: Evidence from the 150-Hour Rule” [John M. Barrios, Cato Research Briefs in Economic Policy]
“At public meeting, hydrogeologist criticizes Albuquerque, N.M.-based water district for fortifying ditch roads with rock rubble. District employee complains to the state professional engineer board, claiming that hydrogeologist’s critique amounted to the unlicensed practice of engineering. Correct, says the board. New Mexico Court of Appeals (2013): Actually, the First Amendment is pretty clear that state agencies can’t punish folks for talking at public meetings without a license. Tenth Circuit (2018): Sadly, though, the hydrogeologist is now time-barred from seeking damages over this contretemps.” [John K. Ross, Short Circuit on Turner v. Middle Rio Grande Conservancy District, see related Oregon case of Mats Järlström covered earlier here and here, and an update] On the other hand, New Mexico making genuine progress on licensing thanks to executive order signed by outgoing Gov. Susana Martinez [Cato podcast with Paul Gessing]
Opening up new practitioner categories could help reach underserved dentistry markets [Cato podcast with Sal Nuzzo] Letting the feds get involved in licensing issues is fraught with risk [Cato Daily Podcast with Caleb Brown and Lee McGrath]
1758 pamphlet on Edinburgh barbers’ exclusive right to cut hair sheds light on issues that are still with us [Daniel Klein]

Filed under: accounting, First Amendment, New Mexico, occupational licensure, Scotland

Department of creative arguments

“A Knoxville woman was convicted of drunk driving after a jury disagreed with her claim that several parked cars struck her, instead of the other way around.” [WATE via Kevin Underhill, Lowering the Bar]

Filed under: blue-ribbon excuses, DUI

Inside the Federalist Society

David Montgomery at the Washington Post has written the best piece I’ve read on the Federalist Society in a long, long time. For example: 99% of what the society does isn’t about judicial selection.

I’ve been active in the Society since not long after its founding, and Montgomery keeps hitting the target. For example: if you make the rounds of the society’s events, you will get exposed to a stellar array of liberal and left legal talent, because the organization is serious about bringing in top-drawer opponents for debates and panels. Likewise with the decentralization of the Society’s activity — the fact that the bulk of its long-term impact arises organically from interactions among its members rather than being instigated by its national office. Good reading [Stars and Stripes reprint]

Filed under: Federalist Society

An Indiana cancer cluster in the NYT

Over the years, the New York Times and writers associated with it have done more than most of us to debunk scares over purported cancer clusters. “When multiple cases of cancer occur in a community, especially among children, it is only human to fear a common cause,” wrote George Johnson in a 2015 Times piece. “Most often these cancer clusters turn out to be statistical illusions, the result of what epidemiologists call the Texas sharpshooter fallacy. (Blast the side of a barn with a random spray of buckshot and then draw a circle around one of the clusters: It’s a bull’s-eye.)”

Johnson’s writings in publications other than the Times have cogently analyzed dubious claims of cancer clusters in Toms River, N.J. and Love Canal, N.Y. Times science reporter Gina Kolata was a pioneer in questioning claimed incidence patterns, and a Times editorial helped in dispelling one of the most famous cancer cluster theories, that of breast cancer on Long Island.

Dozens of refuted cancer cluster scares later, are we more cautious when new ones are put forward? Or has nothing changed?

On Jan. 2 the Times published, to predictably sensational reaction, a piece by Hiroko Tabuchi profiling a claimed childhood cancer cluster in Johnson County, Indiana. Local campaigners have collected cases of childhood cancers — diverse kinds of it, not all one type — associated with the county since 2008, which would imply a rate of six cases per year. The piece, unfortunately, omits to mention the county’s population; it’s 139,654. It does concede, somewhat backhandedly, that the county is within a broadly normal range on its numbers, by noting that it has an incidence of childhood cancer slightly above the average for American counties, placing it in the 80th percentile of all such counties, which in this kind of statistical distribution means not really any great outlier at all.

Cluster alarms call for a culprit, and the local campaigners have settled on a now-shuttered industrial plant that used TCE (trichloroethylene), a solvent familiar from dry cleaning and used at many thousands of sites. They suspect it may have spread through the water and subsequent evaporation, which would explain — or would it? — which some sick children lived in homes distant from the plant and why current water testing is at best inconclusive.

I’ve written a fair bit about cluster controversies in the past, including the one in Hinkley, Calif. made famous by Erin Brockovich, and the Woburn, Mass. story captured in the book and movie “A Civil Action.”

Filed under: Indiana, New York Times, toxic torts

“Rolling Stones fan accuses the band of discriminating against disabled people”

“A Rolling Stones fan has filed a complaint against the band for discriminating against disabled people,” arguing in a complaint to the New York City Department of Human Rights that although wheelchair-accessible seats are made available at various parts of MetLife stadium at different price points, the less expensive ones sold out right away, which left him with a choice only of pricey areas. And this part hurts: plaintiff Michael Boyajian, “a retired administrative law judge, argued that the Rolling Stones should be more mindful of the discrepancy, given all the band members are in their 70s.” [Rozina Sabur and Daniel Bates, Telegraph (U.K.)]

Filed under: disabled rights, music and musicians

A reader query on Michigan fee-shifting

Reader B.B., an attorney, writes:

In Michigan, the American Rule for paying attorney fees has been abolished in civil cases valued at more than $25,000 when filed. I am curious whether anyone has done an analysis to see if this has changed the cost of medical care in Michigan and states that have similarly adopted “loser pays” procedures. I often hear the argument that this is a needed reform, but I never hear an analysis of how this reform has worked where implemented.

In Michigan civil cases valued over $25,000 when filed are argued before a three-attorney panel during pre-trial proceedings. The panel then assigns a value to the case. If both parties accept that value, the case is settled. If either party rejects that value, that party must do 10% better than that value at trial, or they are deemed to have lost, and then they pay the other side’s attorney fees. A plaintiff could get a jury verdict of $100,000 and be deemed the loser if he rejected an award of $90,909.10 or more. This system can be far more punitive than the English Rule.

The problem with any system that shifts the burden of paying for attorney fees to the loser is that it disproportionately impacts the middle class. A poor person does not have to worry about becoming liable to pay the other side’s attorney fees because they don’t have it and the insurance company won’t pursue it. If the insurance company attempts to take what little assets they might have, they will just file for bankruptcy. The insurance company does not have to worry about becoming liable to pay attorney fees because it is a cost borne equally by all insurance companies that do business in Michigan. They just price that risk, like every other risk, into the insurance premium. Only a person who has assets that would not be protected in bankruptcy, and is not wealthy enough to risk paying the other side’s attorney fees, is impacted by a system that shifts the burden to the loser.

So those would be two interesting questions for anyone concerned about the issue to consider: Have “loser pays” systems actually changed medical costs in states that have adopted them, and can “loser pays” systems impact enough litigants to have any effect at all?

Reactions from readers knowledgeable about Michigan legal practice?

Filed under: loser pays, Michigan

Works from 1923 finally enter public domain

“No published works have entered our public domain since 1998.” Why the drought? “Works from 1923 were set to go into the public domain in 1999, after a 75-year copyright term. But in 1998 Congress hit a two-decade pause button and extended their copyright term for 20 years, giving works published between 1923 and 1977 an expanded term of 95 years.” Works from 1923 that became publicly available this week include (silent) films Safety Last, The Ten Commandments, and Our Hospitality, various novels by P.G. Wodehouse, Agatha Christie, Aldous Huxley, and Virginia Woolf, musical compositions Who’s Sorry Now, Charleston, and Yes, We Have No Bananas, and Robert Frost’s poem “Stopping By Woods On a Snowy Evening.” [Center for the Study of the Public Domain, Duke Law] “And assuming Congress doesn’t interfere, more works will fall into the public domain each January from now on.” Among those in the next few years: Gershwin’s Rhapsody in Blue and Fitzgerald’s The Great Gatsby. [Timothy Lee, ArsTechnica; link fixed now] Earlier here, here, and here; given shifts in public opinion, trade associations for rights holders did not attempt to pass another extension this time.

Filed under: copyright, movies film and videos, music and musicians, publishers

January 2 roundup

Extended look at problems of the adult guardianship program in New York [John Leland, New York Times, earlier]
“‘Professional Speech’: a Distinction without a Difference” after the NIFLA case [Cato podcast with Caleb Brown and Robert McNamara of Institute for Justice]
New York enacts law imposing stiff new tax on opioid makers and wholesalers while forbidding them to recoup it by raising prices for buyers in other states. That won’t fly under the Dormant Commerce Clause, rules federal judge [Nate Raymond, Reuters/Insurance Journal]
Should courts uphold laws grounded in part on hostility to a religious group, though rationalized on some other basis? Both right and left have trouble staying consistent [Ilya Somin]
“Oxford University Gets Opposition To Its Attempt To Trademark ‘Oxford’ For All The Things” [Timothy Geigner, TechDirt]
Australian corrections officials keep bringing the wrong Peter Brown to court as murder defendant [Lowering the Bar]