- Court of appeals throws out class action against provincial lottery Loto-Quebec: “[The lead plaintiff] said she wouldn’t have bought the tickets had she known the odds were so slim.” [Canadian Press/CBC]
- And there was much rejoicing: Florida high court finally adopts Daubert, meant to curb use of faulty and unproven science in litigation [Karen Kidd, Florida Record, Beck]
- Fake car-crash claims alleged: “5 SoCal Chiropractors Busted In $6M Insurance Fraud Scheme” [CBS Los Angeles] “Three Men Found Guilty Of $31 Million Slip-And-Fall Scheme Involving Homeless People” [Jen Chung, Gothamist] Cambridgeshire, England: “Footage shows moment car ‘runs over foot’ of binman accused of crash-for-cash scam” [Alex Matthews, The Sun (U.K.)]
- If appellate review somehow leaves intact the scientifically baseless $2 billion Oakland verdict over glyphosate/Roundup, new changes in federal tax law might cut into plaintiffs’ winnings [Robert Wood, Forbes]
- Tamper proof? Old bottles of baby powder bought on eBay are central to plaintiffs’ claims that Johnson & Johnson baby powder may have contained asbestos fibers, a theory that has underlain several large verdicts [Daniel Fisher, Legal NewsLine; John O’Brien, same; Jef Feeley and Margaret Cronin Fisk, Bloomberg]
- “Michigan’s lawmakers have passed legislation to reform the state’s worst-in-the-nation auto insurance market.” [Ray Lehmann, R Street/Insurance Journal, earlier]
Posts Tagged ‘Daubert’
Multi-district litigation: time for real rules
A milestone was reached in March: over half of all cases “currently open in the federal judicial system now are contained in multi-district litigation.” [James Beck, Lexology] And that poses a problem if you believe in uniform, stable, and knowable procedures for handling cases:
As we’ve discussed many times before, the ordinary Federal Rules of Civil Procedure apply sporadically, if at all in MDLs. Likewise, some MDL judges apply Daubert rigorously, and others do not. Some MDLs are disposed of on the basis of federal preemption, while other MDL judges seem never to have granted a preemption motion in their careers. Appellate opportunities are few and far between, and almost always arise when plaintiffs lose, since defense losses don’t generate immediately appealable orders. The current MDL system makes the federal judicial system resemble the baroque Holy Roman Empire – an agglomeration of hundreds of feudal principalities, feigning allegiance to one set of laws, but in reality operating more or less independently – with some of those margraves and palatine counts wielding rather despotic power.
Like some wasps do to caterpillars, agglomerations of “plaintiff steering committees,” assisted by shadowy funded media solicitors, have parasitized the federal judicial system, converting it into a system not for justice, but for converting mass solicitations into mass settlements without the merits of 99+% of the filed “inventory” ever being examined.
And because of the rise of the defendant technique known as “pre-service removal,” Beck says, the share of cases in MDLs is likely to rise further.
January 16 roundup
- The two new heads of the judiciary committees in the Pennsylvania legislature are nonlawyers, and the legal community appears to be fine with that [Max Mitchell, Legal Intelligencer]
- Long after his downfall in one of the worst U.S. legal scandals in years, Stan Chesley was still listed as holding an honored position at a major charity until a reporter started calling [Josh Nathan-Kazis, Forward, I’m quoted; update (Chesley’s name removed)]
- National security restrictions form an important part of regulatory practice these days for international business, discussed at a Federalist Society National Lawyers Convention panel with William J. Haynes II, Timothy Keeler, Randal Milch, Donald Rosenberg, and moderator Eric J. Kadel, Jr.;
- How seeking government intervention backfired on Silicon Valley [Drew Clark, Cato Policy Report]
- Are Baltimore schools underfunded? tales of the gun buyback, local adoption of Daubert, and more in my latest Maryland policy roundup [Free State Notes; plus redistricting updates]
- “Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws” [Mike Masnick, TechDirt, earlier]
Liability roundup
- Big win for scientific rigor in the courts as New Jersey joins 40 other states in adopting Daubert standards for expert testimony, in In re Accutane Litigation [Washington Legal Foundation: Evan Tager and Surya Kundu, Joe Hollingsworth and Robert Johnston] With the long domination of the Florida Supreme Court by its liberal bloc soon to end, is it too much to hope that Florida joins the national trend too? [Evan Tager and Matthew Waring, WLF]
- California lawyers sue electric scooter companies and manufacturers after users run into pedestrians on street, park improperly in handicapped spaces, and leave them in places where they can be tripped over [Cyrus Farivar, ArsTechnica]
- Defendants obtain fees and costs in suit against siren maker over firefighter hearing loss [Stephen McConnell, Drug and Device Law]
- Some safety advocates’ flip-flops on autonomous vehicle legislation in Congress might relate to trial lawyers’ agenda of the moment [Marc Scribner, CEI, more]
- “Labaton Sucharow agrees to return $4.8M in attorney fees after attorney finder fee is revealed” [ABA Journal, earlier on State Street/Arkansas Teacher Retirement System case here, etc.]
- MGM, Fox settle class action claiming that box set of “all” James Bond films lacked two made outside the franchise [Eriq Gardner/Hollywood Reporter, earlier]
At Commentary on the Roundup verdict
My new piece at Commentary on a San Francisco jury’s verdict ordering Bayer/Monsanto to pay $289 million to a school groundskeeper who blamed Roundup herbicide for his cancer. It bids to go down in the history books alongside the lawsuits “claiming that silicone breast implants caused auto-immune disease, common childhood vaccines caused autism, the morning sickness drug Bendectin caused birth defects, one or another make of car suddenly accelerated without any input from the driver or gas pedal, and so forth.”
At the end it concludes: “Eventually, our liability system does often get around to rejecting baseless scientific claims of causation, especially since the improvement in the handling of expert evidence embraced by the U.S. Supreme Court in Daubert v. Merrell Dow (1993). Before it gets there, however, it sometimes redistributes large sums—often to claimants, even more reliably to lawyers—and often destroys large amounts of value. In the days after the San Francisco verdict, the value of Bayer stock dropped by more than 10 billion euros. It’s expensive when error prevails.” More: The Logic of Science (“Courts don’t determine scientific facts.”) Earlier on glyphosate here. And a note on the perhaps-surprising tax implications under perhaps surprising provisions of the 2017 tax reform: Robert Wood.
Medical roundup
- “Researchers from Duke and MIT… found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent — and that those patients who got the extra care were no better off.” [Margot Sanger-Katz, New York Times]
- Cato Policy Analysis and podcasts (with Caleb Brown) by Terence Kealey: “The Feds’ Demonization of Dietary Fat” and “Why Does the Federal Government Issue Damaging Dietary Guidelines?” Related: Britain’s “food supply is being taxed, regulated and reformulated – on the pretext of a lie” [Christopher Snowdon, Spectator (U.K.)]
- New Jersey, a key state because of its volume of pharmaceutical liability litigation, joins national trend by adopting Daubert standard on expert evidence [Colleen O’Dea/N.J. Spotlight, Beck, John O’Brien/Legal NewsLine]
- “Criminal prosecution for violating HIPAA: an emerging threat to health care professionals” [Anne M. Murphy, Laura B. Angelini, and Jared Shwartz, STAT]
- Do-it-yourself workarounds for obtaining compounds blocked or restricted by FDA/pharma regulation, albeit entangled with IP issues. With bonus code-as-speech angle [Daniel Oberhaus, Vice Motherboard]
- “Hotels do want to tell you the real price. Until hospitals do too, they will find their way around disclosure regulations” [John Cochrane; related Cochrane on lack of price competition among air ambulances]
Liability roundup
- “Baseball rule” win for Yankees at appeals court: “Court Rules Against Fan in New York State Foul-Ball Case” [Zach Spedden, Ballpark Digest]
- More on the downfall of the $417 million baby powder verdict against Johnson & Johnson [Steven Boranian/Drug & Device Law, Robert H. Wright/WLF, earlier]
- Dear SCOTUS: certification of a class action should be based on admissible evidence [Andrew Grossman, Ilya Shapiro, and Meggan DeWitt on Cato cert amicus brief in Taylor Farms v. Pena]
- What could make the Florida hurricane season even costlier in this year of Irma? Giving contractors legal authority to take over claims under assignment of benefits (AOBs) [Nicole Friedman and Leslie Scism, WSJ]
- “NY’s Scaffold Law Could Add $300 Million Needlessly To The Cost of the Gateway Rail Tunnel Project” [Common Good] Letter: law hinders Habitat for Humanity [Albany Times-Union] More: editorial, Utica Observer-Dispatch;
- C’mon, New Jersey courts, get Daubert and scientific evidence screening right, it’s important considering how many pharmaceutical cases you see [Andis Robeznieks, AMA Wire; Devin Griffin/Drug & Device Law]
Liability roundup
- “The Impropriety of Punitive Damages in Mass Torts” [James A. Henderson Jr., forthcoming Georgia Law Review/SSRN via Stephen McConnell, Reed Smith/JD Supra]
- “Will SCOTUS Ruling Affect Philadelphia Court, Where 94% Of New Plaintiffs Are From Out Of State?” [Nicholas Malfitano, Penn Record/Forbes, earlier on Bristol-Myers Squibb v. Superior Court]
- Time for asbestos trusts to do what’s right [Christine Biederman, The Hill]
- “Google’s $8.5m class-action privacy payout goes to: Lawyers’ alma maters, web giant’s pals” [Kieren McCarthy, The Register on Ninth Circuit settlement approval]
- European Court of Justice should take lesson from American courts which after relaxing rigor of causality scrutiny, and seeing baseless payouts multiply, have since been on a Daubert rebound [Theodore Dalrymple, Law and Liberty; Marilyn Moberg and Kathryn Bond, Drug and Device Law]
- Law firm gold rush for opioids-recoupment suits continues as New York counties sign up [Steve Lieberman, Journal News (Rockland County, N.Y.]
Liability roundup
- Of course this exists [LivestockAccident.com]
- Eleventh Circuit: no, court can’t rely on professional association’s guidelines to exclude expert witness under Daubert [David Bernstein on Adams v. Lab Corp. of America, followup]
- “Why Can Plaintiffs Only Remember Solvent Defendants In Asbestos Cases?” [Abnormal Use, my two cents way back]
- “Predicting the future in tort law” [Kyle Graham]
- “LA County’s Lead Paint Lawsuit Could Spell Disaster for Apartment Owners” [Apartment Association of Greater Los Angeles]
- Chicago personal injury attorney will face privacy suit over solicitations based on police crash records [Chamber-backed Cook County Record]
- No, it won’t: “Will HR 1927 Kill the Class Action?” [Andrew Trask/Class Strategist; Sean Wajert on House Judiciary action]
Detroit: “Scared to death” theory brings $300K after 85-year-old’s crash
An 85-year-old driver crashed into the back of a tractor-trailer, both vehicles traveling at relatively low speed, and was taken to a hospital where he was pronounced dead. A Michigan appeals court agreed that a jury could hear an expert witness’s theory, dismissed by a cardiologist as “silly,” that Abdulla Kassem had suffered a heart attack that “could have been caused by a ‘fear of impending doom,’ just before the 2008 crash in Dearborn. There was no autopsy.” An insurance company has now paid $300,000 to settle the case. [AP/WDIV]