- Interview with ICJL’s Ed Murnane on Madison County judiciary elections. [Madison County Record; see also Illinois Justice Blog]
- London pension fund: oops, we just sued BP [Point of Law]
- New York court throws out mold suit with systematic rebuttal of the junk science involved. [Point of Law]
- Next mass tort: anti-psychotic drugs. [Mass Tort Litigation Blog]
- “Vibrant, dynamic, gravitas, ambitious, hungry and 17 other words or phrases have been banned by one of Britain’s top recruitment agencies for fear of falling foul of new anti-ageism laws.” [Telegraph (h/t F.R.)]
- Israel Supreme Court: compensatory damages don’t include cost of prostitute visits. This actually reversed a lower-court decision to the contrary. [Avi Bell/PrawfsBlawg via Above the Law]
Posts Tagged ‘junk science’
October 10 round-up
- David Lat has much more detail on the $46 meal-skipping criminal case; and the St. Petersburg Times reports Ralph Paul was acquitted because his defense attorney misrepresented to the jury the legal standard, and the prosecutor didn’t correct it. [Above the Law; St. Petersburg Times]
- Amber Taylor isn’t impressed with Dahlia Lithwick’s proposal of new rules for Supreme Court clerkships. [Law. com; Prettier Than Napoleon]
- Legalized extortion of banks over Enron scandal. [Point of Law]
- Round-up of links of Sherwin-Williams’s suit against Ohio municipalities that are using contingent-fee plaintiffs’ lawyers against it. [Point of Law]
- Possible settlement in the Million Little Pieces class action. [TortsProf]
- California kennel works can’t sue dog owners for bites. [Bashman]
- Defense prevails in first federal welding trial. See also POL Nov. 21 and Dec. 9. [Products Liability Prof]
- David Bernstein on phony associations in epidemiological research. [Volokh]
- Aleksey Vayner doesn’t just have an impressive video resume, he can send a bogus cease-and-desist letter with the best of them. [IvyGateBlog]
$18 million “sudden acceleration” verdict in South Carolina
It’s been nearly two decades since NHTSA refuted the concept of sudden acceleration, yet state courts are still permitting junk science experts to put forward irreproducable theories of electromagnetic interference taking over cruise control. Seventeen-year-old Sonya Thomas claims EMI caused her automobile to take off, causing her to lose control and kill a passenger and paralyze herself. Of course, rather than turn the cruise control off or hit the brakes, Thomas unbuckled her seatbelt and reached under the seat to unstick a gas pedal, which is more consistent with her jamming the gas pedal under an upside-down floormat than anything else. Never mind: though belted passengers were uninjured in the 70-80 mph crash, the South Carolina state jury awarded $18 million to the plaintiffs, and the American automobile industry died a little bit more. (Paul Alongi and Jess Davis, “Cruise control led to crash, jury says”, Greenville News, Aug. 7; Julie Howle, “Jury begins deliberations in crash trial”, Greenville News, Aug. 6; Julie Howle, “Witness disputes seat-belt usage in crash”, Greenville News, Aug. 5; Julie Howle, “Jurors in lawsuit see hard evidence in 1999 rollover”, Greenville News, Jul. 25; “Jury Hears Claims Of Ford Explorer Problems”, WYFF4, Jul. 20).
(March 2010 update: Reversed.)
Kellen Gorman v. Crenshaw Lumber
Three years ago, when he was 2, a medical exam discovered brain lesions on Kellen Gorman. His family blames “toxic mold” for his autism (though his two siblings weren’t affected) in the house, and sued 17 defendants—including the lumberyard that supplied the wood for the house. Six weeks into trial, the case has settled for $22.6 million and, amazingly, it’s the lumberyard that’s paying the bulk of it: $13 million, or more than $200,000 for each of its sixty employees. As it was, the lumberyard had hired seventeen experts to try the case, but had ten of them (including a toxicologist and microbiolgist) excluded when they missed a court-ordered deadline for disclosure. (The Gormans’ attorney, Brian Witzer, accuses a defense attorney of trying to backdate a document, and says he has filed ethical charges.) The Gormans already have plans for their millions: “We’ll tear [the house] down and take it to a hazardous waste dump and build a really nice house,” [Dana] Gorman said. “It will cost a lot to tear down and rebuild.” (Josh Grossberg, “Manhattan Beach family wins $22.6 million suit”, Los Angeles Daily Breeze, Nov. 7; NBC-4, Nov. 4). And if housing seems a bit more expensive in California, it’s because even the raw materials suppliers must purchase insurance against the risk of multi-million-dollar junk science verdicts.
AG Lockyer joins California french-fry suit
Bill Lockyer has thrown the power of the state of California and its taxpayers behind the litigation lobby’s attempt to extract money from just about every food manufacturer over the alleged dangers of acrylamide. We’ve been covering these suits for years: see Apr. 6, 2004 and links therein. Of course, if every single food product and commercial building structure contains a Proposition 65 warning, the net effect is to make the real important warnings, like those on cigarette packages, less meaningful, rather than to warn people of the uncertain link between french fries and minimally elevated risks of cancer, a risk dwarfed in health effects by the difference between french fries with and without trans-fats. The press coverage universally makes no attempt to parse the studies on the subject. The fact that the press-hungry and politically ambitious Lockyer filed his suit relatively quietly on a Friday—and sued only national fast-food chains, without including two popular local chains that also serve french fries—for Saturday news coverage suggests that he’s doing this as a favor for some trial-lawyer buddies and is hoping to avoid public embarrassment. This is a good opportunity for the blogosphere to prove its stuff. And will all the Democrats who claim to be part of the “reality-based community” and correctly speak out against Republican junk science like “intelligent design” raise their voices when it’s a Democrat using junk science for corporation-bashing, or is science only to be used when it can embarrass Bush? We shall see. (Tim Reiterman, “Carcinogen Warning Sought for Fries, Chips”, LA Times, Aug. 27). Other Lockyer coverage.
$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.)
Welcome Forbes readers
We’re honored for this website to have such a prominent place in a column in the latest Forbes. (William Baldwin, “Seventh-Amendment Follies”, Apr. 11). Links to the stories mentioned: $27 million Ford Escort verdict; $49 million punitive damage Dodge Caravan verdict and follow-up; $4.9 billion Chevy Malibu verdict. You may also be interested in our related site, Point of Law, which has a more academic focus, including a section on the issue of science and the courts.
The latest issue of Forbes also has an excellent story about the junk science behind mold litigation. Dr. Gary Ordog travels the country, diagnosing just about every conceivable illness as being caused by exposure to mold.
A California judge once said Ordog “lacks credibility completely” after he testified that he was chief toxicologist at Henry Mayo Newhall Memorial Hospital in Santa Clarita, which has no such department; that he’d published “hundreds” of scholarly articles, when a search of the PubMed database turns up fewer than 70, almost all of them dealing with gunshot wounds and trauma; and that former President Bill Clinton called him personally to run a special mold commission for the Environmental Protection Agency, even though an EPA spokesman says the agency’s authority doesn’t include indoor air quality. Ordog “is completely abusing the system,” says James Robie, a defense lawyer with Robie & Matthai in Los Angeles who has cross-examined Ordog several times. “He is possibly the most dishonest man I have ever met.”
(Daniel Fisher, “Dr. Mold”, Apr. 11). For more on mold litigation, see May 26 and links therein.
Cerebral palsy: what Edwards knew
Edwards’ persuasive powers
Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (“Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)
Rx: Hired-gun control
“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).